Gift tax. What is the tax when donating an apartment?
Like any property, residential real estate, in particular, an apartment, house or shares in them, you can donate. But the design of such a transfer, in contrast to the donation of property movable, has some important features that will be discussed in the article.Let's talk about the nuances of documenting the transfer of real estate as a gift, let us figure out whether a gift agreement is taxed, who is obligated to pay, and how to do it correctly.
Who is not entitled to be a donor and a donee?
Before starting the process of registration of a gift, you need to establish a list of necessary documents and determine the procedure for drawing up a gift for an apartment or a share in it.
Legislation of the Russian Federation defines the circumstances that limit the possibility of donation, for example, cannot act as donors:
• citizens who are not capable;
• young children up to 14 years old and their caregivers.
There is a ban on registration of donations on behalf of patients and persons wards of medical and social institutions,as well as public servants for the performance of their duties. It is impossible and illegal to donate real estate objects between commercial companies.
Features of the contract of donation
The current legislation provides for the registration of a real estate donation contract by an agreement significantly different from agreements on the sale of property.Its main feature is manifested in the fact that the transfer of property is carried out free of charge and a contract of this type is practically not subject to dispute, but the donee must pay the gift tax if not applicable to close relatives of the donor.
Signs of the contract of donation
Donation of actions by the donor is the main feature of the contract. The existence of a condition on a counter-claim or obligation makes it void. For example, an agreement providing for the transfer of an apartment after the donor dies cannot be a gift agreement, since it has a pronounced testamentary character. Also, the condition set forth in the agreement according to which the donor is entitled to use the donated room does not comply with the donation procedure.Such relations of the parties are stipulated by the content agreement with the dependent. That is why such an important step as the donation of an apartment cannot be done thoughtlessly; you should carefully weigh the situation, examine all aspects of the contract and the consequences that arise.
So, a deed of gift is a bilateral agreement confirming the procedure of gratuitous transfer of property by one party (donor) as a gift to the second party (donee). The conclusion of such a contract gives the right of sole possession of property to the donee, that is, the donated property is not subject to division upon the dissolution of the marriage between the spouses.
Drawing up the gift
To make a deed of gift must be provided:
• certificate of title of the donor to real estate, the transfer of which to another person is issued;
• certificate BTI, giving an assessment of the apartment;
• certificate of the presence of registered residents in the room;
• the consent of the guardian if one of the parties has legally incompetent or under-age persons;
• certified copies of participants' passports;
• drawn up and signed contract;
• cadastral passport of the apartment, which can be requested at the Office of the Federal Register of State Register.
The contract is concluded between the two parties, signed by them and is registered in the Rosreestr bodies. The Law on Property Tax gives the right to draw up a contract in writing or notarize it. Actually, the form of registration of the contract is not important, state registration is mandatory, since it is this mark in the Rosreestr authorities that is the starting point of the right of ownership of residential real estate.
It should be remembered that when concluding a contract, the number of originals corresponding to the number of parties to the contract and another original copy, which is a title deed in future, will be required.
In the case of a notarial conclusion of a contract, a notary submits documents for registration. When you make a contract in a simple form after signing it is necessary to assemble a package of documents that must be submitted to the state registration authorities for the required mark.
What is needed to register a transaction
In addition to registering the actual donation contract, there is a need to register the transfer of ownershipfor housing from the donor to the donee.
The package of documents required for this procedure should contain:
• deed of gift;
• certified copies of participants' passports;
• certificate of donor’s title to the donated item;
• statements of both parties: the donor - about the transfer of the right of ownership, the donee - to the registration of this right;
• extract from the object's technical passport issued by the BTI;
• receipt confirming payment of state duty.
It must be remembered that the gift is taxed. Consider in what cases taxation is inevitable, and when the law exempts from this obligation.
When making a donation of an apartment, the law provides:
• the absence of obligations in terms of tax payment by the donor, as he does not receive income during the implementation of the contract;
• exemption from the tax obligations of the recipient of a gift in the event that the donor is a close relative of the donor;
• the emergence of obligations to pay tax in the event that the donated person is a distant relative of the donor or there are no kinship ties between the contracting parties;
• the tax amount corresponds to 13% of the value of the apartment.
Consider all the nuances associated with the taxation of the transaction more closely.
Gift tax to close relatives
The family ties between the parties to the contract are a weighty basis for exemption from the obligation to pay tax when implementing this agreement. To close relatives and those involved in family relationships, the parties include:
• wives and husbands;
• children (including adopted);
• grandchildren, including non-full (with one common parent);
• brothers, sisters.
Exemption from the need to pay must be confirmed by the provision of documents certifying the kinship or family relations of the donor and the donee - birth, marriage certificates, court decisions and others. So, the gift tax between relatives (relatives) is not charged and not paid.
Tax payers upon receipt of a gift
For distant relatives and outsiders to the donor, income derived from donation transactions is considered a material gain and is taxed at a rate of 13% of the price of the object, the amount of which is indicated either in the evaluation report of BTI or in conclusion of the market value of the apartment issued by an independent evaluating organization.These documents are the basis for calculating the amount and indicate what tax when donating an apartment should be paid.
The law is clear: the income received is subject to personal income tax. With the exception of donations between relatives, the receipt as a gift of real estate implies the obligatory payment of tax, which all donee, including minor children, are obliged to pay. For them, their representatives - parents, guardians or guardians - are obliged to do this. Their lack of funds is also not a reason for non-payment of the accrued tax. The real estate gift tax is paid by all categories that received a gift; neither pensioners nor disabled people are exempt from payment. Neither the reasons for retirement, nor the degree of disability and the presence of a disability group are taken into account by law.
How to calculate the gift tax?
The tax on an apartment accepted for a gift is calculated by calculation: 13% of the value of the property listed in the deed of gift. This item must be registered in the contract. Another mandatory point: the value of the property in the agreement must match its price specified in the certificate issued by the BTI.
If, for any reason, the gift is not specified in the contract, the property is estimated at the cadastral value, which is the highest and directly influences the gift tax, i.e., its value. Sometimes, the Inspectorate of Tax Inspection, carrying out checks on the completeness of the accrual and payment of tax, may independently request information about the cadastral value of the housing received as a gift.
How to inform the tax inspectorate?
Despite the fact that information from the Rosreestr of the Federal Tax Service Agency on all real estate transactions conducted by taxpayers is received continuously, information on the type of alienation of property from tax authorities is often not available. Therefore, the IFTS must provide information even if the income from the transaction was not received. For example, if a residential house or apartment (shares in it) were owned for less than 3 years, then after the alienation of the property, the former owner is obliged to inform before April 30 of the year following the one in which the transaction took place. If the apartment or house was donated, then the former owner must be notified in writing to the tax office of this fact.
The content of the application to the tax inspectorate is approximately: “I inform you that in relation to the apartment located at ...the expropriation procedure was carried out under the contract of donation (No. and date); I have not received income. In this regard, I have no grounds for paying personal income tax. ” The following documents are attached to the notification: a deed of gift, certificate of state registration of the right to housing.
Tax liability for the absence of a declaration or its filing in violation of the deadlines
The tax on the gift of the apartment, ie, the personal income tax should be calculated in the declaration, which is filed with the local tax inspectorate of the taxpayer. For his failure to submit a tax return within a specified timeframe, the Tax Code of the Russian Federation has established a measure of responsibility: the amount of the penalty is 5% of the amount of unpaid tax for each month from the date fixed for the declaration. There are restrictions - penalties should not exceed 30% of the specified amount. The minimum fine corresponds to 1000 rubles.
Responsibility for not paying tax
Unpaid or incomplete tax, which is the result of underestimation of the tax base, incorrect calculation or other actions that do not contain signs of tax offenses, is fraught with the imposition of a fine - 20% of the amount of assessed and unpaid tax.
The accrued gift tax must be paid by the taxpayer no later than July 15 of the year occurring in the past tax year. Details for the payment of tax must be clarified in the tax inspectorate at the place of residence. The general procedure involves the payment of tax on the account specified in the declaration. It is necessary to indicate the BCF - code for budget classification. You can pay without charging a fee at Sberbank branches.
If there are no grounds for exemption from personal income tax when obtaining housing under a donation agreement, then it is necessary to pay the gift tax on the apartment. In case of failure to pay personal income tax, the tax inspectorate is entitled to recover unpaid tax in a court of law. If the amount of personal income tax is less than 50 thousand rubles, the justice of the peace at the place of residence of the defendant who has not paid the tax will decide. If the amount of tax exceeds 50 thousand rubles, the lawsuit of the Federal Tax Service shall be filed with the district or city court. The court decision, in addition to the amount of tax, will be charged penalties for each day of overdue payments in the amount of 1/300 of the refinancing rate of the amount of unpaid tax. The tax inspectorate is exempt from state duty. When the court satisfied her claims,and usually the court does not reject the claims of the Inspection of the Federal Tax Service, the defendant, in addition to the obligation to pay the tax, will also be charged a state fee.
Thus, the tax on the gift of real estate will also grow by the amount of penalties and state duty. Do not joke with the law. In addition, receiving a gift of residential real estate is incomparable with the payment of a small part of the value of this property, which is the amount of tax established by law.
So, the tax under the contract of donation is obligatory to pay to all categories of the done persons, if they are not close relatives to the donor.