An apartment, like any property, can be presented. As a rule, they give real estate to relatives.
We will talk about the nuances of the implementation of this procedure, the procedure for its execution and find out in which cases the donated apartment is taxed, and when it can be legally avoided.
Gift agreement: features of the drafting of the document
A distinctive feature of the gift transaction is the fact that the fact of transferring the gift at no cost is practically undeniable. The law establishes the obligation of the endowed person to pay income tax in the form of accepted property. The only exception is giving the apartment to a relative. The tax in this case can be paid or not. It depends on the degree of relationship of the parties to the agreement.
There are restrictions on the age and status of the donor: children under 14 years old (or their guardians) and officially recognized incompetent citizens cannot act in this capacity.
The donation contract provides for the gratuitousness of the actions of the donor. It should not contain conditions for any counter obligation. For example, the donor at the conclusion of the contract cannot put forward conditions for using the apartment together with the donee, even if both parties are related. Therefore, one cannot take rashly such a serious step as giving housing.
Receiving a gift gives the right to sole ownership, disposal and use of property to the person indicated in the gift, since such property cannot be divided even if the marriage is divorced.
Who has the right not to pay tax
Having clarified the general signs of such agreements, let us return to the phenomenon of giving an apartment to a relative. The donor does not pay the tax on the cost of housing because it does not receive income from the transaction. This is established by law. But a relative who receives property as a gift has the right not to pay tax if he is a close relative, i.e.:
• wife / husband;
• parent;
• a child (including adopted / adopted);
• grandparents;
• grandson;
• brother / sister.
The right to an exemption from taxation must be confirmed by documents certifying the kinship / family ties of both parties to the agreement, for example, a marriage or birth certificate, all kinds of court decisions.
Thus, when the donation of an apartment to a
close relative is confirmed
, the tax is not calculated and not paid.
Gift Taxation
In all other cases, when making such an agreement as giving an apartment to a relative, the tax is paid. The law provides for the occurrence of tax liabilities if the person being donated is a distant relative of the donor, an outsider, or cannot document the existence of family ties.
Tax payers
Formally, the definition of “gift tax” does not exist.
For gifted persons who are required to pay this fee, the proceeds from gift transactions are considered to be material benefits and are subject to personal income tax as a percentage of the price of real estate, the amount of which is indicated in the relevant BTI certificate or in the expert opinion of an independent appraiser. Based on the information of any of these documents, the amount of tax payable is calculated.
So, the income of an individual in the form of a gift is taxed with personal income tax. Giving an apartment to a relative also applies to him. Taxes on a common basis should be paid by distant relatives, and the lack of financial resources is not considered as the reason for the possible non-payment of the calculated personal income tax. Accepting property as a gift, the donee assumes the obligation to pay tax. The social status or age of the host is not considered a gift. Gift tax is paid by all categories: pensioners, people with disabilities, minor children, for whom parents or guardians do it.
Giving an apartment to a relative: taxes. How to calculate the amount?
Setting the tax amount is easy. When an apartment is donated to a relative, the tax base is defined as the value of the housing donated by the cadastre.
The amount of tax payable is calculated using the formula 13% of the property value for resident payers. If the donee is not a resident, then the tax rate is 30%. You can reduce its size by issuing an international agreement in the event of double taxation.
How to notify IFTS?
As a rule, the departments of Rosreestr inform tax authorities on all transactions with real estate, but they often do not have information about the disposal of property. Therefore, it is better to provide this information yourself. Even if the donation of the apartment is made to a relative, the tax does not need to be calculated and paid, but the IFTS must be informed. For example, if the apartment was owned for less than 3 years before the donation, then the inspection should be notified before April 30. In this case, it is necessary to file a zero declaration, which records the absence of income and the obligation to pay personal income tax.
The declaration must be accompanied by appropriate documents confirming the performance of the donation procedure. The donee, who is not a close relative and obligated to pay tax, draws up a declaration in which the amount of tax is calculated. It must also be submitted to the IFTS before April 30 of the year following the period in which the transaction occurred.
Giving an apartment to a relative: tax return
Distant relatives obliged to pay tax on a general basis must declare the income received under the gift of real estate.
Donating an apartment to a relative, tax (2014), which should be calculated and paid - all this is reflected in the declaration of form No. 3-NDFL. This document on KND 1151020 is improved, consists of 19 sheets and has been applied since 2014. Until that time, the form developed on 23 sheets was used, which was used to formalize the donation of the apartment to a relative. Taxes of 2013 were calculated and reflected in this form. The calculation algorithm and the size of bets have not changed for quite a long time.
Terms of payment
The calculated tax must be paid before July 15 of the next year, after having verified the details of the account at the Federal Tax Service Inspectorate at the place of registration. For example, the tax on a donated apartment in 2013 must be paid before July 15, 2014.
Responsibility for failure to submit a declaration and non-payment of personal income tax
The law establishes the obligation to file a declaration (including “zero”) in any case, even if you do not need to pay tax. Therefore, if the document is not submitted within the specified time, the payer faces a fine of 1000 rubles. If a tax calculation statement is not submitted to the Federal Tax Service Inspectorate and no payment has been made, then the penalties will increase, amounting to 5% of the outstanding amount for each full month of overdue payments, starting from May 1. But penalties cannot exceed 30% of the amount owed. It is important to know that if the payer, prior to notification from the Inspectorate of the Federal Tax Service, having discovered non-payment, has paid the tax and penalties for it, then a fine cannot be filed by the inspection. Penalties in this case are charged in the amount of 1/300 of the CBR established at the time of the refinancing rate, multiplied by the number of days of delay in payment, starting from July 16.
If the declaration is filed, but the tax has not been paid before July 15, then fines cannot be levied, and the amount of tax increases only due to the interest charged for the delay.
If the apartment was donated to a relative, the tax (2014) was calculated but not paid on time and the declaration was not filed, then the Federal Tax Service Inspectorate has every reason to request the payment of tax through the court. And in this case, the amount of tax increases also by the amount of legal costs.
Consider an example of calculating personal income tax:
In 2014, an apartment was donated to a relative. The income received was not taxed, since I. Ivanov, who accepted the gift, did not know that income must be declared. The cost of the apartment according to the extract from the cadastre is 3 million rubles.
The tax inspection received unpaid tax on August 5, 2015.
Option 1: suppose that Ivanov submits a declaration on August 6 and pays personal income tax on the same day. He calculates the amount payable by making the following calculations:
• the amount of tax payable is: 3,000,000 * 13% = 390,000 rubles;
• penalties for late days starting July 16: 22 days * 390,000 * 8.25% (refinancing rate) / 300 = 2,335.5 rubles.
• penalty 5% of the debt for each month delayed after submitting the declaration (May, June, July): 3 months. * 5% * 390,000 = 58,500 rubles.
The total amount payable will be: 390,000 + 2538.5 + 58 500 = 450 859.5 rubles.
Option 2: if Ivanov does not provide a declaration, the Federal Tax Service Inspectorate has the right to additionally present a penalty of 20% of the tax amount: 390,000 * 20% = 78,000 rubles. In addition, the size of the penalty increases.
So, it must be remembered that not all people who receive any property as a gift from relatives have the right not to pay tax. It must be repaid by any category of gifted persons, unless they are closely related to the donor. It is better to file a declaration and pay personal income tax on time, since the amount of debt will steadily increase over time. And the judicial authorities in these cases, as a rule, always side with the IFTS.