Receiving gifts is certainly always a pleasure. A particularly joyful and sometimes unexpected event is the donation of an apartment. Close relatives usually establish trusting relationships. Many citizens, wanting to determine the fate of their property during their lifetime, donate it to someone from their family members. Let us further consider the features of an apartment donation agreement . A sample document will also be presented in the article.
General information
In general, legislation provides for several methods of transferring property. The main of them can be considered the sale, inheritance, gift. Recently, owners of real estate increasingly choose the latter method. This is understandable. Donating an apartment between close relatives can be arranged at a minimal cost. At the same time, many of the disadvantages that occur during the sale, will turn into advantages here.
Meanwhile, the procedure for registering an apartment donation has a number of nuances that must be taken into account by the owner.
General taxation rules
According to the provisions of Article 217 of the Tax Code, entities can be exempted from paying income tax when donating an apartment to a close relative. For the correct application of the norm, you should contact the UK.
According to the Family Code, close relatives include:
- Spouses.
- Parents and children (adoptive parents and adopted children).
- Grandchildren, grandfathers / grandmothers.
- Sisters, brothers (including half-brothers).
In other cases, when giving the apartment, the recipient will have to pay personal income tax. Its size is 13% today.
Procedure specifics
Giving an apartment to a close relative is much easier to arrange than any other transaction. The conclusion of such an agreement is more beneficial in many respects. For example, when giving an apartment to an unmarried adult child, parents may not worry that the property will not be shared during a divorce. Such property will not be recognized as jointly acquired.
Of particular importance when donating an apartment (not to relatives including) are the guarantees provided for the owner. Legislation enshrines the ability to cancel a deed of gift at any time and demand the return of property in the form in which it was transferred.
Subjects of law
Legally capable adult citizens can donate an apartment. The legislation enshrines special rules for persons under the age of 18 liters. The norms do not allow the transfer of property of such entities to anyone, since this action will lead to a decrease in the number of values owned by the citizen.
Meanwhile, a person who has not reached 18 years., It may well be donee. I must say that in practice, quite often donations are made to minors. However, a citizen will be able to dispose of an apartment or other real estate property only after coming of age.
Self-registration
The parties to the transaction can fill out the form of an apartment donation agreement between close relatives on their own. Legislation does not require mandatory certification of a document by a notary.
Let us briefly consider a sample donation contract for an apartment. It indicates:
- F. I. O. parties, data of documents proving their identity.
- Subject of the contract. Here, the name of the object, its address, essential characteristics that identify the property (area, number of rooms, floor, the presence of furniture and other property in it) are indicated.
Be sure to have the date of registration and signature of the parties to the transaction.
Nuance
When donating an apartment to a spouse or other close person, the value of the object can be omitted. In this transaction, the price of real estate is not an essential condition. The cost must be indicated when buying and selling.
Entering information in the USRN
By law, all real estate transactions are subject to registration. An apartment donation contract is no exception. In this case, there is a change of ownership, and information about this should be entered in the register.
To register, you must provide a package of documents. To donate an apartment you need:
- Title document (certificate of title to property).
- Passports of participants in the transaction.
- Statement. It is drawn up at the Registration Chamber by a specialist.
- Contract. It must be executed in 3 copies - two to the parties to the transaction and one - for the Registration Chamber.
- Certificate of the absence of tax debt. The owner must regularly deduct tax for his property. If a debt has formed, it must be paid off before the transaction is registered.
- Cadastral passport. It is made out in the BTI.
- Duty receipt.
Additional documents
If the owner is married, he must attach a notarized written permission to complete the transaction from the spouse and the certificate of marriage.
If the party to the transaction is a minor, registration will require the consent of the guardianship authority.
Legislation allows registration of a contract by a trustee (representative). In this case, the power of attorney should also be included in the package of documents. It indicates all the powers of a citizen.
Specialist actions
The employee independently fills out an application, takes the entire package of documents. A receipt is issued in exchange for the parties to the transaction. It indicates the date and time of receipt of the new certificate.
As a rule, the registration process takes no more than 10 days. This time is necessary for a specialist to verify the authenticity of documents, the completeness of the information provided.
If violations are identified or not all necessary papers are provided, the owner will be sent a notification. It will indicate which documents still need to be submitted, as well as the deadline for their transfer to the registration authority.
You can also register an apartment donation agreement at the MFC. Today in each municipality there are multifunctional centers where public services are provided to the population. When applying to the MFC, you must also provide the entire package of documents. The application will be filled in by a center employee. The only drawback of applying to the IFC is a slight increase in the time required to issue a certificate.
After receiving the certificate by the donee, he becomes the new owner of the property.
Address to the notary
Many citizens are afraid to draw up an apartment donation agreement on their own. This is quite understandable. Not all citizens are well versed in the law and can draw up a document in accordance with the requirements.
Appeal to the notary's office is also advisable in the event that when giving the apartment the parties had unsolvable questions. The notary will clarify all the nuances of the transaction, help draw up a legally correct document. This is especially true when donating an apartment to a non-relative.
It is also worth noting that the contract will be executed in several copies. One of them will remain in the notary's office. If necessary, you can always apply for a certified copy of the document.
The disadvantage of contacting a notary can be called additional costs. For the preparation of the contract and its certification will have to pay a fee.
Features of the contract
The documenting of a gift is a process of certification of a gratuitous voluntary transfer by the owner of his property and rights to it to another person. In practice, the document that secures the transaction is called a “deed of gift”.
It should be noted that the law prohibits the assignment of any obligations to the donee. It is, in particular, about the provision in exchange of money, services, etc. Donation is a gratuitous transaction, and no rewards can be provided.
In addition, it is unacceptable to indicate in the content of the contract a condition that the property will become the property of the donee only after the death of the donor. To determine the fate of property in this way, there is another document - a will.
The donee citizen has the right to refuse to accept the gift before the transaction is completed.
Bans
The legislation provides for cases in which donation is not allowed. It is prohibited:
- Representatives of the legally incompetent and minors without the permission of the guardianship authority.
- Employees of educational and medical institutions.
- Employees of social protection authorities in which property owners are located.
Deal with a minor
When giving an apartment to a child, a number of important nuances should be taken into account. First of all, the age of the donee is of importance.
If the minor has not yet turned 14 years old, then the contract for him will be signed by his legal representative (parent, adoptive parent, guardian). Accordingly, the transaction will be registered by him. If the child is already more than 14, but less than 18, he signs the documents together with his legal representative. Accordingly, the child must also be present at the registration procedure.
The donor may stipulate special conditions for the transfer of property rights to a minor. For example, the following circumstances may be indicated:
- Completion of college.
- State registration of marriage.
The fulfillment of these conditions must be supported by documents. Until this moment, the gift will be valid, but registration of the transfer of rights is still not possible.
If a minor is registered or lives in the apartment at the time of the transaction, you need to obtain the consent of the guardianship authority for registration.
Retention of ownership
The owner of the apartment may reserve the opportunity to use a certain part of it - to live in it for some time or until death.
The donor determines his rights independently. The main thing is that they do not infringe on the rights of the donee and third parties, and also do not contradict the law.
Donation Cancellation
It is allowed by law. In practice, it is quite difficult to cancel the gift. This requires one of the following circumstances:
- Deterioration of the owner’s health or quality of life due to the transfer of real estate.
- The donee has committed unlawful actions against the donor.
- Refusal of a person to accept an apartment as a gift.
The cancellation of the gift is carried out in the framework of the lawsuit. The contract can be challenged within 3 years from the date of its execution. As practice shows, the gift is disputed most often in the case of fraud. Such a crime is usually committed by unauthorized persons who are not relatives of the owner.
Giving an apartment share between close relatives
You can transfer not only the entire immovable object, but also its part. The share of the apartment is also given free of charge, without establishing any counter obligations.
There are no fundamental differences in the process of issuing a donation to a part of an object from donating an entire premises. However, there are several important points to consider.
Firstly, if the property is in shared ownership, and the owner wants to transfer his part to the relative, he needs to get consent from the other owners. It must be certified by a notary. If the minor is the minor owner, the permit is drawn up by his legal representative. If the donor and the donee live in the same apartment and are its owners, such permission is not required.
It is also worth considering that in the contract, when specifying the characteristics of the object, the size of the share to be transferred should be clearly indicated.
The specifics of accrual of personal income tax
According to the Tax Code, gratuitous gifts are considered income. As you know, they are taxed at a rate of 13% of the amount (cost).
If the donee is not a relative of the owner, then personal income tax must be paid to the person receiving the property and rights to it.
13% is established for residents of the Russian Federation (citizens of Russia and persons permanently residing in the country for a period fixed by law). Non-residents (foreign citizens) when donating an apartment must transfer to the budget 30% of the value of the object. In addition, they need to pay tax in the country of permanent residence.
It is worth saying that between the Russian Federation and some states there are special intergovernmental agreements. According to them, the subject who accepted the property as a gift has the right to pay the tax only once.
Calculation of the deduction amount is based on the cadastral value.
Reporting
Since the donee is entrusted with the duty to pay tax, he must submit to the IFTS tax return for f. 3-personal income tax. A copy of the payer's passport and the gift certificate is attached to the report. Typically, the contract value of the object is not indicated. However, if the transaction is made between strangers, it is better to indicate the price.
If the person presented is a close relative of the owner, then there is no reason to pay personal income tax. However, kinship will need to be confirmed. In this case, the declaration will still have to be completed and submitted. To it must be attached, in addition to the documents indicated above, a certificate certifying kinship. It can be about birth, marriage, etc.
The declaration is submitted to the IFTS in the year following the year in which the payer received the gift. At the same time, reports must be submitted by the end of April.
In case of failure to submit a declaration, a fine may be imposed on the payer, since such an action is considered a violation of the requirements of the Tax Code and is considered a tax violation.
As for the tax itself, the calculated amount must be paid before July 15 of the year following the year of the transaction. In case of failure to fulfill this obligation, up to 20% of the personal income tax amount may be recovered from the subject. At the same time, the payment of a fine does not relieve the person from the obligation to pay tax to the budget.
Alternative option
Some citizens, under the guise of buying and selling, make gifts. That is, they make up an ordinary agreement on the alienation of property, but one side does not transfer money to the other. This is done in order not to pay personal income tax. The fact is that if the property is owned for at least 3 (if received before 2016) or 5 years (if acquired after 2016), income tax is not paid.
Meanwhile, these actions cannot be called legal. Such transactions are considered to be imaginary, that is, one contract is concluded to disguise the other, and participants do not seek the occurrence of proper legal consequences. Such actions can be challenged. If the transaction is declared invalid.
Determination of the value of the object
A person who has received real estate as a gift can be presented to IFTS with a certificate from the BTI or an independent appraiser. This document is required for tax calculation. Moreover, any document submitted to the supervisory authority will be checked. If it turns out that the value of the property is underestimated, the Federal Tax Service will recalculate personal income tax. And the payer may be fined for providing false information about the object of taxation.
Clearance costs
If the parties to the transaction do not certify it with a notary public, you will only need to pay a fee when registering the contract.
Another cost is the payment for the services of an appraiser. The work of a BTI specialist will be cheaper than an independent expert. But in the second case, the necessary document can be obtained in a short time.
If the participants decide to draw up a contract with a notary and certify it there, then a certain amount will need to be spent on this. If the parties only want to certify the transaction, costs will be reduced.
Some citizens apply to legal agencies that provide a full range of services from the preparation of the contract to its registration. The cost of work will be slightly higher than if the parties did everything themselves, but at the same time they will save time and effort.
Additionally
It should be noted that the object donated must be free from restrictions and burdens. In addition, no other persons should apply for real estate. Otherwise, the deal simply will not be registered.
If there are still burdens / restrictions, they must be removed.
Conclusion
Currently, transactions related to the gift of real estate have become very popular. As a rule, their parties are parents and children (including minors). Many citizens want to be confident in the future of their children, and wish to determine the fate of their property during their lifetime.
A person who intends to donate an apartment or other residential premises should understand the significance of this step. Often only a single home is given. Therefore, the owners prescribe in the contract a condition that until their death they will live in the apartment. As a rule, the gifted agrees to this.
The contract, however, cannot prescribe the obligation of the future owner to keep the owner and take care of him for life, even if the property is transferred to a loved one. In this case, it is more advisable to conclude a life annuity agreement.
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Particular attention should be paid to tax. Outsiders to the owner of the person are required to deduct personal income tax to the budget. Close relatives of the owner are exempt from income tax.