Giving an apartment to a relative: gift tax

2024 Author: Howard Calhoun | [email protected]. Last modified: 2023-12-17 10:16

Apartment, like any property, can be donated. As a rule, they give real estate to relatives.

Let's talk about the nuances of this procedure, the procedure for its execution and find out in which cases the donated apartment is taxed, and when this can be legally avoided.

Donation agreement: document drafting features

A distinctive feature of a donation transaction is the fact that the fact that the gift was transferred free of charge is practically indisputable. The law establishes the obligation of the gifted person to pay tax on income in the form of accepted property. The only exception is the gift of an apartment to a relative. Tax in this case may or may not be paid. It depends on the degree of relationship between the parties to the agreement.

There are restrictions on the age and status of the donor: children under 14 years of age (or their guardians) and officially recognized incompetent citizens cannot act in this capacity.

BThe donation agreement provides for the gratuitousness of the actions of the donor. It should not contain conditions for any counter-obligation. For example, when concluding an agreement, the donor cannot put forward conditions for the use of an apartment together with the donee, even if both parties are related. Therefore, one should not thoughtlessly take such a serious step as donating housing.

Receiving a gift gives the right of sole possession, disposal and use of property to the person indicated in the gift, since such property cannot be divided even upon divorce.

Who has the right not to pay tax

Having found out the common features of such agreements, let's return to such a phenomenon as giving an apartment to a relative. The tax on the value of housing is not paid by the donor, since he 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;

• child (including adopted children);

• grandparents;

• grandson;

• brother/sister.

The right to 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 a donation of an apartment to a close relative is confirmed, no tax is calculated or paid.

Taxation on gifts

In all other cases, when making an agreement such as donating an apartment to a relative, the tax is paid. The law provides for the emergence of tax liabilities if the donee is a distant relative of the donor, an outsider, or cannot document the existence of family ties.

Tax payers

There is no formal definition of "gift tax".

For gifted persons who are required to pay this fee, income received from donation transactions is considered as a material benefit and is subject to personal income tax as a percentage of the price of real estate, the amount of which is indicated in the relevant certificate of the BTI or in the expert opinion of an independent organization - 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 received gift is subject to personal income tax. It also includes donating an apartment to a relative. Taxes on a general basis must be paid by distant relatives, and the lack of financial resources is not considered as a reason for the possible non-payment of the calculated personal income tax. By accepting property as a gift, the donee assumes the obligation to pay tax. The social status or age of the recipient of housing as a gift is not taken into account. Gift tax is paid by all categories: pensioners, the disabled, minor children for whom this is done by parents or guardians.

Giving an apartment to a relative: taxes. How to calculateamount?

Setting the tax amount is easy. When an apartment is donated to a relative, the tax base is determined as the value of the donated housing according to the cadastre.

The amount of tax payable is calculated using the formula 13% of the value of the property for resident payers. If the donee is not a resident, then the tax rate is 30%. You can reduce its size by drawing up an international agreement in the event of double taxation.

How to notify the IFTS?

As a rule, Rosreestr departments inform the tax authorities on all real estate transactions, but they often do not have information about the alienation of property. Therefore, it is better to provide this information yourself. Even if the donation of an apartment to a relative is formalized, there is no need to calculate and pay tax, you still have to inform the Federal Tax Service. 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, you will have to submit a zero declaration, which records the absence of income and the obligation to pay personal income tax.

Relevant documents confirming the donation procedure must be attached to the declaration. The donee, who is not a close relative and is obliged 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 took place.

Giving an apartmentrelative: tax return

Distant relatives who are required to pay tax on a general basis must declare income received under a real estate donation agreement.

Giving an apartment to a relative, tax (2014), which should be calculated and paid - all this is reflected in the declaration form No. 3-NDFL. This document on KND 1151020 has been improved, consists of 19 sheets and has been used since 2014. Until that time, a form was used, developed on 23 sheets, which formalized the donation of an apartment to a relative. Taxes in 2013 were calculated and reflected in this form. The calculation algorithm and the size of bets have not changed for quite a long time.

Payment due dates

The calculated tax must be paid before July 15 of the next year, after checking the details of the account with the Federal Tax Service at the place of registration. For example, the tax for an apartment donated 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 the tax does not need to be paid. Therefore, if the document is not submitted within the specified time, the payer faces a fine of 1000 rubles. If a tax return is not submitted to the IFTS and payment is not made, then the pen alties increase, amounting to 5% of the amount owed for each full month of overdue payments, starting from May 1. But pen alties cannot exceed 30% of the amount of the debt. It's important to know,that if the payer, before notification from the Federal Tax Service Inspectorate, having discovered non-payment, paid the tax and pen alties on it, then the fine cannot be presented by the inspection. Pen alties in this case are charged in the amount of 1/300 of the refinancing rate established by the Central Bank of the Russian Federation at that time, multiplied by the number of days of delay in payment, starting from July 16.

If the declaration is filed, but the tax is not paid before July 15, then no fines can be charged, and the amount of tax is increased only by the pen alties accrued for late payment.

If an apartment was donated to a relative, the tax (2014) was calculated, but not paid within the specified time, and the declaration was not filed, then the IFTS has every reason to demand payment of tax through the court. And in this case, the amount of tax is also increased by the amount of legal costs.

Consider an example of calculating personal income tax:

In 2014, an apartment was donated to a relative. Taxation of the income received was not made, since Ivanov I. I., who accepted the gift, did not know that the income needed to be declared. The cost of the apartment according to the extract from the cadastre is 3 million rubles.

Notice from the tax office about unpaid tax received on August 5, 2015.

1 option: suppose that Ivanov submits a declaration on August 6 and pays personal income tax on the same day. It calculates the amount due by doing the following calculations:

• The amount of tax payable is: 3,000,00013%=390,000 rubles;

• interest for overdue days from July 16: 22 days390,0008.25% (raterefinancing) / 300=2,359.5 rubles

• Pen alty 5% of the amount of the debt for each overdue month after the filing of the declaration (May, June, July): 3 months.5%390,000=RUB 58,500

The total amount payable will be: 390,000 + 2538.5 + 58,500=450,859.5 rubles.

2 option: if Ivanov does not provide a declaration, then the IFTS has the right to additionally present a fine of 20% of the tax: 390,00020%=78,000 rubles. In addition, the size of the pen alty also 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 redeemed by any category of donee, 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 grow steadily over time. And the judiciary in these cases, as a rule, always takes the side of the Federal Tax Service.