Buying and selling real estate: all about taxes. We eliminate risks before the sale and purchase of real estate In cases of acquisition of real estate in

2.1 Systematization of the grounds and methods of acquiring property rights..

For the emergence of property rights, as well as other legal relations, it is necessary to have certain legal facts, which in Russian civil law are called grounds for acquiring property rights. Traditionally, they are usually divided into primary and derivative. However, when determining the basis for classifying relevant legal facts, different sources give preference to different criteria.

Thus, a number of scientists* believe that the presence of will previous owner. In their opinion, primary grounds include those in which the right of ownership lawfully arises in a person regardless of the will of the previous owner, and derivatives are those in which such a will is present.

Others believe that the correct criterion is the presence succession*, and the initial ones include legal facts that are not based on succession, and the derivatives, accordingly, are those that are based on legal succession. They indicate that the criterion will does not in all cases withstand practical testing. For example, an heir who has the right to an obligatory share (the so-called necessary heir), receives this share against the will of the previous owner - the testator - although such a method of acquisition as inheritance, without a doubt, refers to derivative methods of acquiring property rights.

The point of view of the latter is closer to me, since the doctrinal interpretation of the law, for which civil law actually exists, should be based on internally consistent premises that do not lead to paradoxical conclusions. At the same time, the best way, from my point of view, to solve this problem is to follow the internal logic of such a law, and in this case it is known that the legislator in all cases has certain legal consequences with the presence or absence of legal succession, which cannot be said about the will. That is, it is rather the criterion that has practical significance for major law succession, that is why I chose him to study the grounds for acquiring property rights.

This is all the more relevant since various – and often multidirectional – processes are actively taking place at the moment. Privatization, in which state and municipal property becomes the property of citizens and organizations, social and cultural facilities and other property complexes, on the contrary, become state and municipal property. All this property is burdened with numerous obligations of the most diverse nature, and is often equipped with various powers, often very attractive to the owner. And the adoption of legally significant acts, as a rule, is closely related to the presence or absence of legal succession.

Therefore, further we will consider the grounds for acquiring property rights, classified into initial and derivative precisely according to the criterion succession. Based on this criterion, the initial grounds include:

acquisition of ownership of a newly manufactured item (clause 1 of Article 218 of the Civil Code)

processing (Article 220 of the Civil Code)

conversion into ownership of publicly available things (Article 221 of the Civil Code)

acquisition of ownership rights to ownerless property (clause 3 of Article 218; Articles 225, 226; ownerless due to the application of clause 2 of Article 235, Article 236 of the Civil Code)

appropriation of treasure (Article 233 of the Civil Code)

due to the onset of the acquisition limitation period (Article 234 of the Civil Code)

for unauthorized construction due to the application of clause 3 of Article 222 of the Civil Code

stray animals (Article 230-232 of the Civil Code)

there is also reason to consider acquisition from an unauthorized owner to be the original method of acquiring ownership.

Derivative acquisition methods include:

acquisition of property rights under a contract

acquisition of property rights by inheritance

nationalization (Article 239, Article 306 of the Civil Code)

privatization (Article 217, Part 2, Clause 2, Article 235 of the Civil Code)

acquisition of ownership of the property of a legal entity as a result of its reorganization or liquidation (clause 7 of article 63, paragraph 3 of clause 2 of article 218 of the Civil Code)

foreclosure on the owner’s property for his obligations (subparagraph 1, paragraph 2, article 235, article 238 of the Civil Code)

circulation of property in favor of the state in the interests of society (requisition) or as confiscation, that is, in the form of a sanction for an offense committed (Articles 242, 243 of the Civil Code)

redemption of real estate in connection with the seizure of the land plot on which it is located (Article 239 of the Civil Code)

redemption of uneconomically maintained property (Articles 240,293 of the Civil Code)

purchase of domestic animals due to their improper treatment (Article 241 of the Civil Code)

acquisition as a result of termination of ownership of the property of a person to whom it cannot belong (subparagraph 2, paragraph 2, Article 235, Article 238 of the Civil Code).

It should be noted that some methods of acquisition can, depending on specific circumstances, act as initial or derivative, an example of which is the acquisition of ownership of products, fruits, income received from the use of certain property.

The study of each of the grounds for acquiring property rights as a whole can form the topic of a separate full-fledged scientific work. Next, various grounds for acquiring ownership rights to real estate will be considered.

The legislator includes real estate (immovable things, real estate) as land plots, subsoil plots, isolated water bodies and everything that is firmly connected to the land, that is, objects the movement of which is impossible without disproportionate damage to their purpose, including forests, perennial plantings, buildings, structures (Article 131 of the Civil Code), as well as aircraft and sea vessels, long-distance vessels, and space objects subject to state registration. The law may include other property as real estate. An important feature of the right of ownership of real estate is the mandatory state registration of all legal facts related to the emergence, transition and termination of such a right (clause 2 of Article 131 of the Civil Code), and in some cases provided for by law, in addition, special registration. The main legal act regulating registration procedures is the Law of the Russian Federation “On State Registration of Real Estate Transactions”.

2.2 Initial reasons for purchasereal estate.

Ownership for newly created real estate property is acquired by the person who manufactured or created it for himself in compliance with the law and other legal acts (clause 1 of Article 218 of the Civil Code). At the same time, the legislator, specifically for real estate, strictly connects the moment of acquisition of ownership of such property with the moment of its state registration (Article 219 of the Civil Code).

Separately, the legislator considers the situation of acquiring property rights for unauthorized construction, that is, in violation of the principle of compliance with the law and other legal acts. Article 222 of the Civil Code defines unauthorized construction as a residential building, other structure, structure or other real estate created on a land plot not allocated for these purposes in the manner established by law and other legal acts, or created without obtaining the necessary permits or with significant violation of urban planning norms and rules. At the same time, unauthorized construction itself does not allow the owner to acquire ownership rights to unauthorized created real estate and dispose of such property, which the law additionally indicates. That is, incidents are possible in which the right of ownership initially does not arise on any side. Therefore, an unauthorized building is subject to demolition by the person who carried it out or at his expense, except for the cases provided for in paragraph 3 of Article 222 of the Civil Code, for which purposes the unauthorized developer is given an order to demolish all or part of the unauthorized construction and put the relevant territory in order, indicating the deadlines, in which the developer is obliged to take appropriate actions.

However, subject to compliance with the conditions established by law, the right of ownership of such a building may be recognized by the court for a person who has carried out unauthorized development on a plot of land that does not belong to him or for a person in whose ownership, lifelong inheritable possession, whose permanent perpetual use such a plot is located.

The right of ownership of an unauthorized developer can be recognized only on the condition that the land plot located under the relevant building will be provided to this person in the prescribed manner for the erected building, and for the title owner of the plot - with the obligatory establishment of the amount in which such owner is obliged to reimburse the developer for expenses related to the implementation of development. And none of these persons can be recognized as the owner of the relevant property if the preservation of the building violates the rights and interests protected by law of other persons or creates a threat to the life and health of citizens.

A significant initial basis for acquiring ownership rights to real estate is mismanagement such property. Ownerless According to the rules of Article 225 of the Civil Code, property is recognized that does not have an owner, or whose owner is unknown, or has renounced the right of ownership in accordance with Article 236 of the Civil Code. It should also be noted that in the latter case, such an owner is not deprived of rights and is not released from obligations in relation to the relevant property until the acquisition of ownership rights to it by another person.

The basis and procedure for acquiring ownership of ownerless real estate are redefined in paragraph 2, paragraph 2, Article 25 of the Civil Code. This rule of law contains a description of the general procedure for registration and assignment of ownership of the relevant property, as well as a closed list of other options for determining the fate of the specified property.

At the request of the local government body, on whose territory immovable things are found or declared ownerless, by the bodies that register rights to real estate, such things are taken into account and, after a year from the specified day, the body authorized to manage the specified property receives the right to apply to court with a requirement to recognize the right of municipal ownership of this thing. If, before the court recognized the property as municipal property, its former title owner appeared, such a thing may be again taken into possession, use and disposal by him or acquired into ownership by virtue of acquisitive prescription.

Acquisitive prescription(Article 234 of the Civil Code) is also one of the initial grounds for acquiring ownership rights to real estate. In this case, as well as on other grounds, the right of ownership of real estate arises from the person who acquired this property by virtue of acquisitive prescription from the moment of state registration of the relevant legal fact.

To acquire ownership of real estate by virtue of acquisitive prescription, it is necessary that a person who is not the owner of the property conscientiously, openly and continuously owns the property as his own for fifteen years. Very important for the application of this basis for the acquisition of property rights is the legally correct determination of the statute of limitations for possession, the rules of which are directly listed in paragraphs 3 and 4 of Art. 234 Civil Code. Thus, a person referring to the prescription of possession can add to the time of his possession the entire time during which this property was owned by the one whose legal successor this person is. At the same time, the period of acquisitive limitation begins only from the time when the limitation period expires on a vindication claim or on a claim by an owner who is not the owner (Article 1–5 of the Civil Code of the Russian Federation).

Further, a prerequisite for acquisitive prescription is the ownership of property as one’s own, that is, without taking into account the fact that it has an owner. Otherwise, gender doubt and two other mandatory requisites of acquisitive prescription are raised - openness and good faith of ownership of real estate

Conscientious ownership of property means that while actually owning such property, the owner does not know and should not know about his lack of ownership rights, while the absence of a right establishing document (for example, a home ownership passport) does not in itself prove the owner’s bad faith.

A person owns property openly when his possession is visible and not hidden from any interested or uninterested third parties. A mandatory requisite of possession by prescription is its continuity. If the owner takes actions indicating his recognition of the obligation to return the thing to the owner, or an authorized person has filed a claim against him for the return of property, then the period of acquisitive limitation is interrupted. Moreover, if other details of acquisitive prescription are present even after the end of the specified circumstances, the prescription of possession begins to run again. It should be borne in mind that the time that has elapsed before the break is not counted towards the statute of limitations, although, if a third party unlawfully deprives a long-term owner of possession of property, such owner has the right, as established by law, to restore the violated possession. And the period of acquisitive limitation continues as if there had been no violation of possession, that is, continuously. And the last thing, important specifically for the modern period of time, is a remark about acquisitive prescription as the basis for acquiring ownership of real estate. Rules of the law on acquisitive prescription Art. 11 of the Law of the Russian Federation on the introduction into force of Part One of the Civil Code of the Russian Federation was given retroactive force, that is, acquisitive prescription also applies to the case when ownership of property began before January 1, 1995 and continues at the time Part One of the Code comes into force.

2.3 Pderivatives grounds for purchasingownership rights toreal estate.

The most common and regular way of acquiring rights to real estate is acquisition of property under a contract. To acquire ownership rights on this basis, it is necessary that an agreement be concluded between the acquirer and the alienator of the property in a simple form, and in cases directly provided for by law, in a qualified written form. In this case, we can talk about a contract for the purchase and sale of real estate (paragraph 7 of Chapter 37 of the Civil Code of the Russian Federation), the form of which is established, under penalty of invalidity, as written by drawing up one document by the parties (Article 550 of the Civil Code). At the same time, the legislator especially emphasizes and provides special protection for the obligation of the parties to register the transfer of ownership of real estate under a real estate sale agreement. In cases where the law requires mandatory notarization of the relevant agreement, the acquirer’s right of ownership also accrues after state registration of this legal fact.

Very common methods of acquiring real estate are inheritance citizens by law or by will, as well as similar acquisition of ownership rights to the property of a legal entity during its reorganization or liquidation. When a legal entity is reorganized to the successor organizations of such a legal entity, the ownership of the property belonging to it is transferred in appropriate amounts in accordance with transfer acts and the separation balance sheet (paragraph 3, paragraph 2, article 218, articles 58, 59 of the Civil Code of the Russian Federation). In the case of liquidation of a legal entity, that is, its termination without the transfer of rights and obligations to successors, the situation is much more complicated. The solution to the issue of the legal acquirer of the property of a liquidated organization depends on whether the participants of this legal entity retain any rights to its property and, if so, what and to what extent. By default of the law and constituent documents, the property remaining after satisfaction of the claims of the creditors of a legal entity is transferred to its founders (participants) who have real or liability rights to this property (clause 7 of Article 63 of the Civil Code). However, if we are talking about a public association or a charitable foundation, then according to the law, and in other cases it can be determined by the constituent documents, the remainder of the property upon liquidation is directed to solving certain, for example, socially significant tasks. The basis for its liquidation also plays a significant role in determining the future fate of the property of a legal entity.

Agreement on the transfer of real estate from state and municipal to private ownership – privatization agreement(Article 217 of the Civil Code) - should also be classified as this type of basis for acquiring property rights. This basis for acquiring ownership rights to real estate is especially relevant in recent years and causes, perhaps, the largest number of extremely difficult legal disputes to resolve. The main reason for the emergence of difficulties in resolving disputes about the fate of real estate related to the privatization of state and municipal property is, in my opinion, the blanket nature specified by the norm of the Civil Code and, accordingly, the regulation of these relations and processes by a large number of normative (and even non-normative) acts, published by various persons. The competence of such persons, who decide the most important legally significant issues outside the legislative process and outside the general context of the development of legal doctrine, to issue relevant normative legal acts in many cases began to be verified only in the course of trials related to the practice of applying these acts. And they did not always pass such a test with dignity. In other words, this basis for acquiring property rights is not sufficiently regulated by law, which is confirmed below when considering the relevant cases.

In case of forced foreclosure on the property of the owner for his obligations At first glance, there is no direct connection between the termination of the property right of one person and its emergence in another. However, the law provides for the termination of the right of ownership of such property from the alienator only from the moment the right of ownership to such property arises from its acquirer. The acquisition of ownership rights to real estate on the grounds under consideration is carried out, as a rule, in court and is subject to a significant number of restrictions. As a general rule, real estate is a vital type of property for citizens and critically necessary for the functioning of commercial organizations, part of their property complex. In this regard, foreclosures on the debtor’s real estate are applied last, in a complicated manner, and in some cases are directly prohibited.

In the near future, it seems that such derivative methods of acquiring property by the state as nationalization, requisition and confiscation- tap on my tongue. In accordance with Art. 35 of the Constitution of the Russian Federation, civil legislation establishes that nationalization, that is, the conversion of privately owned property into state ownership, is carried out on the basis of the law with the state compensating the former owner of the nationalized property for its actual value and other losses in accordance with Art. 36 Civil Code. It should be noted that the law on nationalization can be challenged only if it does not comply with the Constitution of the Russian Federation and only in the Constitutional Court of the Russian Federation, that is, it is not subject to challenge in civil proceedings, but the court can resolve disputes about compensation for losses and the amount of such compensation in accordance from Article 36 of the Civil Code.

Paid seizure of property from the owner in the interests of society by decision of state bodies is carried out in the manner and under the conditions established by law and is called requisition. Requisition is applied in cases of natural disasters, accidents, epidemics, epizootics, and other circumstances of an emergency nature, therefore confiscated and preserved requisitioned property can be claimed by the owner in court (Article 242 of the Civil Code).

In cases expressly provided for by law, property may be confiscated from the owner free of charge by a court decision in the form of a sanction for committing a crime or other offense. By a court decision or in accordance with the law, in an administrative manner (Article 243 of the Civil Code). In this case, the state acquires the confiscated property by virtue of confiscation, In this case, the decision on confiscation made administratively can be appealed to the court. A peculiarity of confiscations is that encumbrances of ownership of the specified property are transferred to the state only partially, and their execution is subject to a number of restrictions, including quantitative ones.

Characteristic only for the acquisition of rights to real estate is such a basis as the redemption of real estate in connection with the seizure of the site on which it is located. Article 239 of the Civil Code defines cases when it is permissible to confiscate from the owner or sell at public auction in the manner provided for in Art. 279-282, 284-286 Civil Code. A mandatory condition for the application of this basis is that the state body or local government body that has filed the corresponding demand with the court has evidence that the use of the land plot for state or municipal needs for the purposes for which it is seized is impossible without termination of the title owner's ownership of this movable property or evidence of ownerless use of the corresponding land plot.. The seizure procedure is as follows. The decision to seize a land plot, and, therefore, to buy out the real estate located on it, is subject to state registration. The title owner of the said property must be immediately notified of the registration, indicating its date, but no later than one year before the date of the upcoming redemption. Before the expiration of a year from the date of notification to the owner, repurchase is possible only with the consent of the owner. In cases where the owner does not agree with the decision on redemption or with the proposed terms of redemption, the state body or local government body that made the decision that the new owner may acquire property rights has the right to file a claim for redemption in court within two years from the date of sending the owner a notice of ransom. In relation to mismanaged contents of property, the right of ownership is acquired in the manner prescribed by Article 240 (for cultural property), 293 (for residential premises) and in other cases provided for by law. The specified property has an owner who is known, but treats it mismanagement, that is, allows it to be damaged and destroyed, loses other consumer qualities, or creates a threat to the rights and legally protected interests of third parties (such as , negligent owner of the hydroelectric dam).

The emergence of difficulties in tax accounting of real estate transactions is due to the fact that ownership of real estate, its emergence, transfer and termination are subject to state registration in the Unified State Register of Rights (USRE) in accordance with the provisions of Art. 131 Civil Code of the Russian Federation.

Moreover, in accordance with paragraph 2 of Article 8 of the Civil Code, rights to property subject to state registration arise from the moment of registration of the corresponding rights to it.

The moment of registration of rights to real estate is the day of making the corresponding entries about rights in the Unified State Register (Clause 3, Article 2 of Law 122-FZ “On Registration of Rights to Real Estate and Transactions with It”).

State registration of real estate rights sometimes takes several months. An accountant may face the difficult task of making informed decisions about the timing of calculation and payment of taxes.

Is it necessary to charge and pay taxes on real estate properties, the ownership of which has not yet been transferred to the company in accordance with the provisions of the Civil Code of the Russian Federation? At what point in a real estate purchase transaction can the owner stop paying property tax and must pay VAT and income tax?

To facilitate the solution of these problems, in our article we will try to highlight different approaches to these issues, as well as the possible consequences of this or that choice made by the taxpayer.

Income tax on real estate purchase and sale transactions

For the purposes of tax accounting for income tax, in accordance with Article 249 of the Tax Code of the Russian Federation, sales income is recognized as proceeds from sales minus VAT and excise taxes (clause 1 of Article 248 of the Tax Code of the Russian Federation).

In accordance with paragraph 3 of Article 271 of the Tax Code, under the accrual method, the date of recognition of income from sales is the date of sale, regardless of the actual receipt of funds to the seller’s account.

At the same time, according to clause 1 of Article 39 of the Tax Code of the Russian Federation, the transfer to ownership to the object being implemented.

The transfer of ownership of real estate under a real estate sale agreement to the buyer is subject to state registration in accordance with paragraph 1 of Article 551 of the Civil Code.

Execution of the contract for the sale of real estate by the parties before state registration of transfer of ownership is not the basis for changing their relations with third parties in accordance with clause 2 of Article 551 of the Civil Code of the Russian Federation.

The right of ownership of the buyer of property in cases where the sale of property is subject to state registration arises from the moment of such registration (Clause 2 of Article 223 of the Civil Code of the Russian Federation).

Accordingly, from a straightforward reading of the provisions of the Civil and Tax Codes, it follows that income for income tax purposes is recognized at the time of state registration of ownership of real estate.

It seems that everything is quite clear and understandable. However, the position of the tax authorities, the Ministry of Finance and even some court decisions contain a different point of view.

So, for example, to the Ministry of Finance in its Letter dated 02/07/2011. No. 03-03-06/1/78, makes the following conclusion:

• Based on the provisions of paragraph 1 of Art. 271 of the Tax Code, income is recognized in the reporting (tax) period in which it occurred, regardless of the actual receipt of funds, other property and (or) property rights (accrual method).
• Thus, we believe that the organization that sells real estate has an obligation to pay corporate income tax from the moment of transfer of the property to the buyer according to the transfer and acceptance certificate and filing documents for state registration of rights to real estate and transactions with it, regardless of registration date the specified rights.

• The court, rejecting the company’s claim that the tax base for calculating income tax arose only with it after state registration transfer of ownership of the property, indicated that for the purposes of calculating and paying income tax, the moment of sale of the property is its actual transfer.

Indeed, in accordance with the current legislation, until the state registration of the right has taken place, the seller remains the owner, despite the fact that the property acceptance certificate has already been signed.

This position is contained, for example, in the Resolution of the Federal Antimonopoly Service of the Volga Region dated July 22, 2008. NA65-26844/07:

• The court, taking into account the provisions of civil law, namely Art. 8 and art. 223 of the Civil Code of the Russian Federation, Federal Law of July 21, 1997. No. 122-FZ made a reasonable conclusion that income from the sale of real estate recognized as such at the time of transitionownership on the building, that is, on registration daterights the buyer's ownership of the building, in connection with which the proceeds from the sale of real estate are subject to income tax after state registration of this object, regardless of the receipt of funds from the acquirer before or after the transaction.

• A safer position is to recognize income from the sale of real estate on the date of signing the transfer and acceptance certificate of the property.
• When recognizing income from the sale as of the date of state registration of property rights in the Unified State Register, the taxpayer must be aware of the tax risks and be prepared for the fact that he will have to defend his position in court.

When purchasing real estate for the purpose of subsequent sale, it is necessary to register ownership in accordance with current legislation. Expenses for such objects, during subsequent implementation, must be taken into account in accordance with Art. 268 Tax Code of the Russian Federation.

If a piece of real estate is acquired by an organization for its own needs and is considered as depreciable property, then the taxpayer must be guided by Articles 256-259 of the Tax Code. In accordance with paragraph 1 of Art. 258 of the Tax Code of the Russian Federation, fixed assets, the rights to which are subject to state registration in accordance with the legislation of the Russian Federation, are included in the corresponding depreciation group from the moment of the documented fact of filing documents for registration of these rights.

This means that it is possible to depreciate for tax accounting purposes an acquired real estate object only from the 1st day of the month following the month in which the registering authority’s receipt on receipt of documents for state registration of ownership of the real estate object is dated.

VAT on the purchase and sale of real estate

The moment of determining the tax base in accordance with clause 1 of Article 167 of the Tax Code is the earliest of the following dates:

• Day of shipment (transfer) of goods;
• Day of payment (including partial).

As already mentioned in the previous section, the ownership right of the buyer of property, subject to state registration, arises from the moment of such registration (Clause 2, Article 223 of the Civil Code of the Russian Federation).

Accordingly, VAT taxation arises on the date of state registration of ownership of property in the Unified State Register.

Letter from the Ministry of Finance dated 02/07/2011. No. 03-03-06/1/78, contains the same approach:

Paragraph 3 of Article 167 of the Tax Code establishes that in cases where the goods are not shipped or transported, but there is a transfer of ownership of this product, such transfer of ownership for the purposes of Chapter 21 of the Code is equivalent to its shipment.

Thus, when selling a property, the moment for determining the tax base for VAT should be considered the earliest of the dates:

• the date of transfer of ownership of this property specified in the document confirming the transfer of ownership,
• or the day of its payment (partial payment).

Tax authorities may take a different point of view when conducting on-site audits. However, the taxpayer will most likely be able to challenge their claims in court. Arbitration practice today supports the taxpayer.

For example, in the Resolution of the Federal Antimonopoly Service of the Moscow District dated October 1, 2010. No. KA-A40/11546-10 in Case No. A40-7248/10-115-86 states the following:

Since the object of sale and purchase were non-residential premises in the building, which are not transported or shipped, the seller reasonably determined the moment of the tax base - on the date of transfer of ownership (certificate of registration of ownership), and dated the invoice to this date.

The court took a similar position in the Resolution of the Federal Antimonopoly Service of the Volga District dated 02.02.2010. No. A12-11515/2009:

• Thus, the date of sale in this case is considered to be the date with which the legislator associates the transfer of ownership of the goods.
• In accordance with paragraph 2 of Article 8 of the Civil Code of the Russian Federation, rights to property subject to state registration arise from the moment of registration of the corresponding rights to it, unless otherwise provided by law.
• From the above rules it follows that the moment of determining the tax base for VAT in relation to real estate is the date of state registration of ownership of the real estate object.

Accordingly, by issuing an invoice for the sale of property with the date of state registration, the organization does not violate the requirements of the current legislation.

The buyer of real estate, having received an invoice from the seller and a document on state registration of ownership of real estate, can immediately submit input VAT for deduction in accordance with Article 171 of the Tax Code.

Property tax on the purchase and sale of real estate

From the buyer

Since 2011, real estate objects, the ownership of which not registered in accordance with the procedure established by law, accepted to accounting as fixed assets with allocation on a separate sub-account to the fixed assets accounting account (clause 52 of the Guidelines for accounting of fixed assets, Order of the Ministry of Finance dated October 13, 2003 No. 91n).

In this case, the requirements of clause 4 of PBU 6/01 must be observed, according to which an asset is accepted by the organization for accounting as fixed assets if the following conditions are simultaneously met:

• the object is intended for use in the production of products, when performing work or providing services, for the management needs of the organization, or to be provided by the organization for a fee for temporary possession and use or for temporary use;
• the object is intended to be used for a long time, i.e. a period exceeding 12 months or the normal operating cycle if it exceeds 12 months;
• the organization does not intend the subsequent resale of this object;
• the object is capable of bringing economic benefits (income) to the organization in the future.

Note: Lack of state registration of ownership of real estate, is not the basis for excluding such real estate from the tax base for property tax.

From the seller

In accordance with clause 32 of PBU 6/01, the cost of an asset that is disposed of, including in the case of sale, is subject to write-off from accounting.

The transfer by an organization of an asset to the ownership of other persons is formalized by an act of acceptance and transfer of fixed assets.

Based on the specified act, a corresponding entry is made in the inventory card of the transferred fixed assets object, which is attached to the acceptance and transfer certificate of fixed assets. A note about the seizure of the inventory card for a retired asset is made in a document opened at the location of the asset (clause 81 of the Guidelines for accounting of assets).

Thus, the seller organization writes off the objects of real estate being sold at the time of drawing up the certificate of acceptance and transfer of fixed assets and ceases to include these objects in the tax base for property tax. This approach does not contradict the explanations of the Ministry of Finance. So, in the Letter dated March 23, 2011. No. 07-02-10/20 stated:

• Similar to an organization accepting an object for accounting, an organization transmitting a real estate object, the ownership rights to which are subject to state registration, must write off it from accounting at the time of actual disposal, regardless from the fact of state registration of property rights.
• Income and expenses from writing off fixed assets from accounting are reflected in accounting in the reporting period to which they relate. Income and expenses from writing off fixed assets from accounting are subject to credit to the profit and loss account as other income and expenses.
• If the moment of writing off the accounting records of a real estate object, the ownership rights to which are subject to state registration, does not coincide with the moment of recognition of income and expenses from the disposal of fixed assets (when these income and expenses are recognized at the time of state registration of the transfer of ownership), then to reflect the disposed of an object of fixed assets until the moment of recognition of income and expenses from its disposal, account 45 “Goods shipped” can be used (a separate sub-account “Transferred real estate objects”).

• Starting from 2011, the buyer of a real estate property will pay more property tax, since he will register the property as an OS earlier.
• Starting from 2011, the seller of real estate will pay less property tax, since the sold fixed assets will be immediately excluded from the tax base for property tax.

Buying your own home is the dream of many families. Not everyone can afford their own apartment, since the cost of decent real estate suitable for housing is at least a million rubles, even in the region.

Considering that it is important to have your own home, the state allows many ways to purchase an apartment that are available to families with ordinary income. This includes a mortgage, housing lending, the possibility of obtaining a tax deduction, shared construction, and many other methods.

Pros of your apartment

Purchasing an apartment becomes a matter of not only life support, but also prestige. After all, not everyone can buy real estate, only those who have earned it through their hard work and who have taken advantage of the opportunities offered.

Despite the fact that in the West many families find it cheaper to rent a home than to buy their own, in our country the situation is different.

Rent in Russia is quite high, and the law is clearly on the side of landlords, not tenants.

Tenants are not protected from homeowners; they can be evicted at any time, their rent raised, and forced to pay for repairs. And if it is not concluded (and this is the case in the vast majority of cases), then there is no way to hold the landlord accountable.

In addition, the tenant needs to coordinate every step to change the appearance of the apartment with its owner, he has to sort things out with representatives of the management company if the owner of the property turns out to be an unscrupulous payer, etc.

Purchasing your own apartment turns out to be beneficial not only from a psychological point of view, but also from an economic one. Of course, often payments for your apartment, if it is taken out on credit, are higher than the potential rent, but these payments are temporary and the money is invested in your own home, and not given to your uncle.

How can I buy an apartment

The easiest way: save money. However, not every family has such a level of income that they can afford to save enough to buy an apartment. Especially when you consider that real estate goes up in price, and in times of crisis does not lose so much in value that you can “seize the moment.”

Therefore, it makes sense to consider other methods.

Mortgage

To obtain a mortgage from a bank, you need to have a good credit history, sufficient income to make payments, and a down payment (usually 10%).

To obtain approval from the bank, you can attract co-borrowers (for example, parents), as well as guarantee your existing real estate or car, prove the presence of additional income (for example, interest on a bank deposit).

Credit

This method is well suited for families for whom a mortgage is not suitable for one reason or another. For example, you don’t want to take out a mortgage for a long term (a mortgage implies a “marathon” for 15–20 years and, as a result, a reduction in the monthly payment amount), while your income allows you to take out a shorter-term loan with an increased monthly payment amount.

Also, taking out a loan is optimal if a property of a smaller area is being sold and a more spacious home is being purchased.

Use of subsidies

This method is combined with the first two. There are several types of government subsidies. For example, the funds received can be used as a down payment, as a certificate.

A military certificate, on the contrary, allows you to take out a mortgage on preferential terms. The third type of subsidy is assistance in repaying a mortgage. So, you can apply for mortgage interest.

Social programs

Some regions have launched assistance programs for young or large families. For example, in Bashkortostan large families are allocated plots for construction, and in the Kaliningrad region they allocate a million for the purchase of housing.

You should ask your local social security department about the availability of such programs and their conditions.

Participation in special co-financing programs

Such programs are offered by some banks, in particular Sberbank. Participation means that the family makes contributions over a certain period of time (2-3 years), replenishing a special savings account. After the expiration of the agreed period, the state increases the accumulated amount by a certain percentage, and it can be used as a down payment.

Share building

Apartments at this stage are much cheaper, sometimes 3-4 times lower than the average market price. In addition, payments are dispersed throughout the construction of the house.

Among the significant disadvantages are a large number of fraudulent schemes that are used in shared construction, because of which shareholders are deceived, construction turns into a long-term construction project or is completely frozen.

Rent with subsequent purchase

This method is extremely rare, but is used. In this case, there will be two payments: the first - in as rent, the second – towards the future purchase of an apartment.

A type of such lease: annuity with lifelong maintenance. For example, a family is caring for an elderly woman, and an agreement is concluded between them, the essence of which boils down to the following: the tenants fully support the owner of the property and pay all her bills, but after her death the apartment becomes their property.

Thus, there are many ways to purchase your property without having enough funds on hand. You need to carefully study every opportunity, weigh all the advantages and disadvantages - and act.

First of all, it is necessary to clarify what the term “thing” means in the civil legal sense, since our everyday ideas about things and the legal characteristics of this concept do not always coincide.

The law classifies as things not only inanimate objects (cars, items of clothing and household items, etc.), but also living beings - wild and domestic animals. Invisible and not always tangible substances, such as gas, thermal, electrical and nuclear energy, are also objects of civil circulation.

A thing becomes an object of law due to its most important feature - the presence of properties capable of satisfying human needs. For this reason, things whose beneficial properties are unknown or not studied at this stage of the development of human civilization, or are inaccessible (for example, cosmic bodies) cannot be objects of civil rights, which means that it is impossible to purchase these objects.

Russian civil legislation classifies an extremely wide range of objects as things. It also includes cash and non-cash funds, documentary and uncertificated securities, property rights (Article 128 of the Civil Code). All of the above is covered by the concept of “property”, so you need to remember that the concepts of thing and property in the civil law of the Russian Federation are synonymous.

Not all things can be freely acquired and alienated, i.e. participate in civil circulation. Based on their negotiability, things are divided into unlimited circulation (can be objects of any transactions), limited in circulation (to acquire ownership of such things you need to obtain a special permit: weapons, drugs, poisons, etc.) and withdrawn from circulation that cannot be the subject of transactions (rivers, seas, roads, some public buildings, etc.).

Therefore, when purchasing or alienating a thing, you must first determine its negotiability.

It is known that some human rights arise from birth and end with death (the right to life, health). The right of ownership does not apply to such rights; it is acquired by citizens and legal entities on the grounds established by law.

The law (Article 218 of the Civil Code) names several grounds (methods) for acquiring property rights.

Paragraph 1 of the first named article of the code deals with the acquisition of ownership of a new thing that a person has manufactured or created for himself. The owner of such a thing becomes the person who created it.

A new movable thing can be created by recycling an old thing. The right of ownership to such a thing arises from the person who owns the processed materials. If the recycler is not the owner of the materials, then the owner of the materials becomes the owner of the new item.

There is an exception to this rule that applies depending on the cost of processing. If this cost significantly exceeds the cost of the materials, then the ownership of the new item is acquired by the processor who processed the item for himself. In this case, the processor must reimburse the owner of the materials for their cost. And, conversely, the owner of materials who acquired the right to a new (processed) thing is obliged to reimburse the cost of processing to the person who carried it out. The law allows these rules to be changed by an agreement concluded between the owner of the materials and the processor (clause 2 of Article 220 of the Civil Code).

The above rules do not apply when it comes to.

To create real estate as a new thing, it is necessary to have a land plot allocated for these purposes, first obtain a construction permit and carry it out in compliance with urban planning norms and rules. If this is ignored, the constructed real estate (a residential building, other building or structure) is recognized as an unauthorized construction.

The law does not recognize the right of ownership of an unauthorized construction to the person who carried it out (clause 2 of Article 222 of the Civil Code). Accordingly, it is illegal to dispose of unauthorized construction. It cannot be sold, given as a gift, rented out, or other transactions can be made with unauthorized construction. Moreover, the law obliges the person who carried out the unauthorized construction to demolish it at his own expense.

And yet, for negligent developers, a chance is provided to retain the right to build or reimburse its cost. To do this, you need to apply to the court for recognition of ownership of the building. The court's decision will largely depend on who has the ownership rights, lifelong inheritable ownership or permanent (perpetual) ownership of the land plot on which the construction was carried out - the developer himself or another person.

If the owner of the right to a land plot and the unauthorized developer are the same person, then most likely the court will recognize his right of ownership, provided that the construction does not violate the rights of other persons and does not pose a threat to the life and health of citizens.

If the unauthorized developer and the owner of the land plot are different persons, then a claim for recognition of ownership rights can be filed by the owner of the land plot. If the court recognizes his ownership of the building, the court obliges him to reimburse the developer for construction costs in an amount determined by the court.

As you can see, there are a lot of risks and hassles with unauthorized construction. To avoid them, the developer needs to follow the established rules when constructing real estate, and the buyer of real estate, before giving money to the seller, needs to find out whether the property is an unauthorized construction.

If the property already has an owner, then the right to such property can be acquired by another person on the basis of a civil legal transaction: purchase and sale, exchange, gift, etc. This is the most common way of acquiring ownership of things. Each of us makes such transactions every day, buying, for example, food in a store.

Ownership of the property of a deceased person passes to other persons in accordance with or.

Reorganization of a legal entity also entails the transfer of ownership of its property to its legal successors - legal entities.

The basis for the acquisition of ownership of real estate by a member of a consumer cooperative is the full payment of the share contribution for the garage, apartment or other premises provided by the cooperative (clause 4 of Article 218 of the Civil Code).

Above we talked about the methods (grounds) for acquiring property. Now we will try to answer the question from what moment a thing becomes the property of a particular person.

According to the general rule established by Article 223 of the Civil Code, the ownership right of the acquirer of a thing under a contract arises from the moment of its transfer, unless otherwise provided by law or contract. The law recognizes the transfer of a thing as its delivery to the acquirer. The law recognizes the actual receipt of a thing into the possession of the acquirer as the moment of its delivery, and therefore the moment of transfer of ownership of the thing to the acquirer.

Meanwhile, the law allows the parties to the contract to determine other conditions for the transfer of ownership of the thing (for example, from the moment the buyer pays its price in full).

The rules of Article 223 of the Civil Code concern mainly movable things.

In cases where the transfer of ownership of a thing is subject to state registration (and this applies to immovable things), the acquirer’s right of ownership of the thing arises from the moment of such registration, unless otherwise provided by law. Thus, a member of a consumer cooperative acquires ownership of real estate not from the moment of its state registration, but from the moment the member of the cooperative pays the full share contribution. The need for state registration of ownership of real estate will arise for a member of the cooperative only when he decides to make a transaction with it (sell, donate, etc.).

For real estate objects acquired into ownership after 01/01/2016:

Income received by a taxpayer from the sale of real estate is exempt from taxation (and declaration) provided that such an object was owned by the taxpayer for a minimum period of ownership of the real estate or more.

The minimum period of ownership of a real estate property is 3 years for real estate objects in respect of which at least one of the following conditions is met:

1. ownership of the object was received by the taxpayer by inheritance or under a gift agreement from an individual recognized as a family member and (or) close relative of this taxpayer in accordance with the Family Code of the Russian Federation;
2. ownership of the object was acquired by the taxpayer as a result of privatization;
3. ownership of the object was obtained by the taxpayer - the rent payer as a result of the transfer of property under a lifelong maintenance agreement with dependents.

In other cases, the minimum period of ownership of real estate is 5 years.

For real estate acquired before 01/01/2016, as well as for other property (garage, car, etc.) - the minimum period of ownership is 3 years.

If the income from the sale of a real estate property is less than 70% of the cadastral value of this property as of January 1 of the year of sale, then for tax purposes such income of the taxpayer is taken equal to the cadastral value of this property, multiplied by a factor of 0.7.

Calculation of property deduction

1,000,000 rubles– the maximum amount of tax deduction by which income received from the sale of residential houses, apartments, rooms, cottages, garden houses, land plots, as well as shares in the specified property can be reduced;

250,000 rubles– the maximum amount of tax deduction by which income received from the sale of other property (cars, non-residential premises, garages and other items) can be reduced.

Instead of applying a property deduction, the taxpayer has the right to reduce the amount of income received from the sale of property by actually incurred and documented expenses directly related to the acquisition of this property. In certain situations, this may be more profitable than using a property deduction.

When selling property that is in common shared or common joint ownership, the corresponding amount of property tax deduction (1,000,000 rubles or 250,000 rubles) is distributed among the co-owners of this property in proportion to their share or by agreement between them (in the case of the sale of property located in common joint ownership).

If the taxpayer sold several pieces of property in one year, the specified limits are applied in the aggregate for all sold objects, and not for each object separately.

If the amounts received from the sale of property do not exceed the specified limits, then the obligation to submit a declaration remains, and the obligation to pay tax does not arise.

Calculation example

In 2017 Kotov S.A. sold the apartment for 3,000,000 rubles, which he bought in 2015 for 2,500,000 rubles.

Since the apartment was owned by Kotov S.A. less than the minimum ownership period, in relation to the income received from its sale, he is required to submit a personal income tax return for 2017.

When declaring a property tax deduction in such a declaration, the taxable income of Kotov S.A. will be 2 million rubles, and

Personal income tax = (RUB 3,000,000 - RUB 1,000,000) x 13% = RUB 260,000

Personal income tax = (3,000,000 rubles – 2,500,000 rubles) x 13% = 65,000 rubles.

Calculation example

Income of Ivanov N.V. from the sale in 2017 of an apartment purchased in 2016 amounted to RUB 2,100,000.

The cadastral value of the apartment as of January 1 of the current year, in which state registration of the transfer of ownership of this apartment was carried out, amounted to 3,300,000 rubles. There are no documented expenses for purchasing an apartment.

The tax base for personal income tax in this case is determined with a reduction factor applied to the cadastral value of the apartment equal to 0.7.

Cadastral value of the apartment taking into account the reduction factor:

RUB 3,300,000 x 0.7 = 2,310,000 rub.

At the same time, Ivanov N.V. has the right to claim a property tax deduction in the amount of 1,000,000 rubles.

Personal income tax will be calculated by the taxpayer as follows:

(RUB 2,310,000 - RUB 1,000,000) x 13% = RUB 170,300

The property deduction associated with the sale of property, in contrast to the deduction associated with the purchase of housing, can be applied unlimitedly, but subject to the limitation of the maximum amount of property tax deduction (1,000,000 rubles or 250,000 rubles) in the tax period. In order to exercise the right to deduction, the taxpayer must:

2 Prepare copies of documents confirming the fact of sale of property.

For example, copies of property purchase and sale agreements, exchange agreements, etc.

3 If the taxpayer claims a deduction for the amount of expenses directly related to the acquisition of the property being sold, additionally prepare copies of documents confirming such expenses

(cash receipts, sales and cash receipts, bank statements, payment orders, receipts from the seller for receipt of funds, etc.), as well as other documents confirming the fact of acquisition of the apartment being sold, for example, a sales contract.

4 Submit to the tax authority at your place of residence a completed tax return with copies of documents confirming the right to receive a deduction when selling property.

When submitting copies of documents confirming the right to deduction to the tax authority, you must have their originals with you for verification by a tax inspector.

The most convenient way to fill out a tax return and submit it, as well as supporting documents to the tax authority, is online through an Internet service “Taxpayer’s personal account for individuals”