Gift tax between close relatives. Is a gift to a relative subject to tax

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2020-03-13

This article will help determine what needs to be taken into account when drawing up an apartment donation agreement, which persons pay the tax fee, and which are exempt from payment. You will also find out what package of documents you need to have in order to take ownership of real estate and which government agencies you need to contact.

Donation of an apartment

- This is a complex process that needs to be legally formalized. Among all types of valuables (family jewels, silver cutlery, money), real estate is the only one that requires registration in accordance with the rules established by law.

It is important to remember that by donating square meters, the owner is giving away the living space free of charge. The apartment donation agreement does not provide for the transfer of funds for the property received. If the agreement states that the owner of the apartment receives money for the property, the transaction may be canceled and declared illegal. If the owner wants to receive compensation, it is recommended to draw up a purchase and sale agreement.

Donating an apartment, what do you need to know when registering?

If, after his death, the donor wants the apartment to be transferred to another person, it is not recommended to indicate this data in the agreement. To do this, it is better to draw up a will.

Procedure for donating an apartment

Donating an apartment in 2020 begins with drawing up an agreement and collecting a package of documentation.

You can complete the transaction either independently or with the help of a notary (application to a notary increases risk reduction).

The agreement is signed by both parties, which indicates that the residential property passes into the ownership of another owner. Drawing up a contract is an important point; the document contains many legal nuances and aspects that must be displayed.

Afterwards, a package of documentation is collected and sent to Rosreestr, where they will make a note that the property has a new owner.

Sample apartment donation agreement

will help determine what main nuances should be displayed in the document.

Important! The main document for conducting a donation transaction is an Extract from the Unified State Register of Real Estate , which you can order on our website.

Types of deeds of gift for an apartment

An agreement to donate an apartment to a relative can be of several types, depending on whether the entire property or a share is transferred and the number of owners. Another type of deed of gift for an apartment is a gift with an encumbrance.

Gift deed for an apartment: pros and cons

Donation is a type of transaction under which citizens can transfer real estate into ownership of each other. This form of agreement is especially noteworthy for close relatives, since they are exempt from the obligation to pay income tax in the amount of 13% .

Just like a will, a donation implies gratuitous alienation of property , however, each of such transactions has its pros and cons. Depending on the situation, the number of heirs and other factors, citizens have the right, at their own discretion, to choose the most appropriate method for transferring their property. In order to understand which option is most advisable to use, it is worth understanding the key features of each transaction.

Drawing up a contract yourself

The seller can draw up an agreement on his own; the law does not prohibit such a procedure. The only caveat is that all points must be drawn up correctly.

A sample agreement for donating an apartment between close people will help you understand what points should be included in the agreement.

It is important to remember that independently drawing up a contract with errors can lead to the cancellation of the transaction and its recognition as illegal.

Before drawing up a contract, you must order an extract from the Unified State Register of in order to correctly enter data about the property.

The sample donation of an apartment contains the following main points:

What is the subject of donation? The agreement must indicate square meters, address, how many rooms, if a multi-storey building, then on what floor the apartment is located, telephone number.
Who is the party to the transaction? It is necessary to register the details of each party, for example, passport details, full names, where the persons reside at the time of drawing up the agreement.
When and on what date the transfer took place.

The agreement is confirmed by the signatures of both parties. This is only the first stage of the transaction; then the new owner must assume legal rights.

Actions after drawing up the clauses of the agreement:

Write an appeal to the MFC or the Registration Chamber.
Pay the state duty
Receive a certificate indicating that the application has been accepted.
Come for help.

Disadvantages of a gift agreement

The main disadvantage of donation is the obligation of the recipient of the gift to pay income tax in the amount of 13% of the value of the property, if he is not a close relative .

There are also other disadvantages:

It is impossible to specify counterclaims to the recipient, for example, to establish a lifelong ban on eviction from the donated housing.
The contract can only be challenged in court proceedings and under the following conditions: Attempt on the life of the donor.
If the handling of the donated item can lead to its irretrievable loss, and for the donor it has great non-material significance.
If the health or property status of the donor has changed so much that the fulfillment of the obligation under the contract will lead to a significant deterioration in his living conditions (applicable to the promise of a gift in the future).

Once the deed is registered, the donor loses all right to own and dispose of the property.

Conditions and rules for donating an apartment

Donating an apartment between loved ones is a responsible process where you need to think through every step. The owner of square meters must do this consciously, understand that after the transfer of the residential property the owner will change.

There should be no pressure from the receiving party; no money is paid when transferring property.

The basic rules include:

Only the owner can transfer a residential property.
This is a voluntary process.
A minor can accept an apartment, but not as a gift.

The same conditions are suitable for a donation agreement for a share in an apartment or the entire property.

The donor and recipient are close relatives

Thus, when concluding a gift agreement within a family, the recipient of housing as a gift does not have the obligation to pay tax and submit a tax return 3-NDFL. In the future, the owner only needs to pay property tax (Articles 400, 401 of the Tax Code of the Russian Federation).

The gift agreement does not indicate the relationship and the MFC did not require us to provide any documents confirming the relationship. You can then go to the tax office yourself and provide documents. If the granddaughter is married and this share was acquired during marriage, then the notarized consent of the granddaughter’s husband to the transaction will be required by the MFC.

Differences in gifts to relatives and non-relatives

When preparing documents for the transfer of a residential property to another person, all owners must adhere to the same procedure regulated by law. When transferring an apartment to a relative as a gift, the seller is exempt from paying tax.

The tax is not paid if the square meters are transferred between the following relatives:

Parents transferring an apartment to their children.
Grandfathers and grandmothers passing on living space to their grandchildren.
Sisters and brothers who have a common parent.
The adoptive parent transfers real estate to the adopted person.
Spouses.

If brothers and sisters are cousins, or property is transferred to nephews, payment of tax is mandatory. This is the difference between gifts to relatives and non-relatives.

The tax amount is 13% of the total amount of real estate.

Cost of deed of gift and terms of registration

If a notarial form is not required and the donation is made between close relatives:

For an apartment cost of up to 10 million - 3,000 rubles plus 0.2 percent .

When donating to others:

Up to 1 million - 3,000 rubles plus 0.4 percent.
Over 1 million to 10 million - 7,000 rubles plus 0.2 percent of the amount exceeding 1 million rubles.

According to Part 1 of Art. 16 Federal Law 218 dated July 13, 2015, registration of the transfer of ownership under a gift agreement occurs:

Within seven working days if carried out through Rosreestr.
Within nine working days if documents are provided through the MFC.

Does the document have retroactive force?

An agreement on donating a share of an apartment to a close relative or donating all property has a retroactive effect. The agreement can be terminated out of court or in court.

Does the document have retroactive force? When drawing up a gift agreement, experts recommend simultaneously drawing up a termination agreement. The deed of gift is drawn up in writing and signed by both parties. If the document is certified by a notary, the cancellation of the deed of gift must also be certified by a notary.

If the owner decides to reject the gift agreement, the agreement must indicate:

When the contract was concluded and when it happened.
The main purpose of the document is to cancel the deed of gift.
When and on what date was the agreement signed?
Information about real estate transferred as a gift.
Number of copies.

It is important to indicate in the document what expenses the parties incurred and within what time frame they will be compensated.

The document has retroactive force even after registration. To do this, the former owner needs to submit an application to cancel the registration.

If the old owner understands that the reasons for termination are justified, but in fact it was not possible to terminate the contract, it is recommended to go to court. When submitting an application to the court, you must have substantial evidence of the reasons for termination of the agreement and attach it to the package of documents. For example, you can attach photographs or video materials or involve witnesses.

Design features in 2020

You can draw up a deed of gift for an apartment yourself or through a notary. The law does not oblige the transaction to be notarized if the transferred property is entirely assigned to the donor. The exception is when the property is jointly owned. To be able to dispose of it, you must first obtain the notarized consent of the co-owner. For example, when donating an apartment, which is joint property of the spouses.

If the agreement is notarized, then starting from February 1, 2020 , the law obliges the notary to independently submit documents for state registration. To do this, the parties need to collect all documents, pay the state fee and draw up an application for the transfer of ownership. Then the notary sends the agreement and its annexes electronically within one business day, or no later than two business days if the documents are sent on paper.

Taxation when donating an apartment

The first expense that one of the parties will incur is real estate tax.

Since square meters are transferred under a gift agreement, the gifted person does not pay any money for housing. The exception will be tax.

When calculating tax, you need to use a standard formula; the interest rate depends on the subject. If the new owner lives in Russia for more than 6 months, or is abroad for more than six months, such a person will be considered non-resident. Accordingly, the tax amount will be 30% of the total value of the property received.

In all other cases, the tax amount when donating an apartment will be 13% of the total cost of the apartment.

What is a deed of gift for an apartment

Under a gift agreement, one party (the donor) transfers in favor of the other party (the donee) the possession and disposal of property belonging to him by right of ownership. According to Art. 574 of the Civil Code of the Russian Federation, a deed of gift for an apartment can only be issued in writing. Accordingly, in order to be able to acquire property, the donee must first agree to accept the gift by signing an agreement.

According to Art. 572 of the Civil Code of the Russian Federation, donation is a gratuitous transaction , therefore the donor has no right to demand material compensation for its completion. The only condition that can be established in such an agreement is the deadline for its execution. If an apartment is donated, then it can become the property of the donee after signing the agreement and registering the transfer of rights in the Unified State Register of Real Estate, and also only after the period established in the agreement (promise of donation in the future).

This is important to know: Frequency of maintenance work for an apartment building

The donor and the donee are close relatives, what are the documents for the tax authorities?

You can draw up the document yourself or contact the competent authorities or lawyers for this. Specifics of the registration procedure As mentioned above, the gift agreement must be notarized. This provides additional guarantees and confirms the legal capacity of both parties to the transaction, as well as their voluntary expression of will.

Land tax in the case of a house and a land plot on it Land tax must be paid by legal entities and individuals who own land plots. Article 390 of the Tax Code determines that it is calculated based on the cadastral value of the land. For citizens, the tax amount is determined by the bodies maintaining cadastral state records.

Interesting: Is the house divided among children in a divorce?

Algorithm for the procedure

How to give an apartment to a close relative? According to Art. 574, the deed of gift for real estate is concluded in simple written form. Starting from 2013, the agreement itself is not subject to state registration (only the fact of transfer of ownership to the Unified State Register of Real Estate). However, the parties, at their own discretion, have the right to have the transaction notarized . Failure to comply with the written form entails the nullity of the deed of gift.

The agreement is drawn up in three copies.

We talked about how to draw up a deed of gift for a close relative here, and here you will learn about the rules for drawing up a deed of gift.

List of required documents

To conclude the donation, the parties must provide:

your passports or other identification documents;
information about the presence of kinship or family ties (marriage certificate, birth certificate);
written consent of other apartment owners;
technical information about the apartment (from the BTI);
information about persons registered in the apartment;
certificate of ownership of the donor.

Additionally, you may need information about who will bear the costs of subsequent state registration of the transfer of rights, and a notarized power of attorney (if the transaction is concluded through such persons).

To register the transfer of ownership you will also need a package of documents:

original and copy of the gift agreement;
passports of the parties to the agreement;
application by the donor for the transfer of ownership;
receipt of payment of state duty;
cadastral and technical passport of the apartment;
certificate of persons registered in the apartment.

We reviewed the full list of documents that may be needed when preparing a deed of gift for relatives here.

State duty: what is the price of the procedure?

As mentioned above, if a deed of gift is issued in favor of a close relative, no income tax will be paid. For all other relatives, the state duty is 13%. For example, the cost of an apartment is 2 million 300 thousand rubles. The tax on it will be 299 thousand.

The state duty is levied on the transfer of ownership . For individuals it is 2000 rubles.

An additional cost is the registration of the transaction with a notary at the request of the parties. As mentioned above, the state duty will be 0.5% of the cost of the apartment specified in the donation agreement (but not less than 300 rubles).

The donor and recipient are close relatives

If the donor is alive, then only he himself has the right to challenge the transaction, the relatives rest. If he died, then his heirs have the right to challenge the deal. However, to challenge the gift agreement, either by the donor himself or by the heirs, the grounds listed in Art. Art. 168-179 Civil Code of the Russian Federation. Most often, plaintiffs in such a claim face BUNES.

Income received as a gift is exempt from taxation if the donor and recipient are family members and (or) close relatives in accordance with the Family Code of the Russian Federation (spouses, parents and children, including adoptive parents and adopted children, grandparents and grandchildren, full and half (having a common father or mother) brothers and sisters).

Gift deed to close relatives

In my memory, gift agreements were challenged, but all these cases were paid for, and all were canceled by a higher authority. When considering these cases, a post-mortem psychological and psychiatric examination is prescribed, but as a rule, it is difficult to draw a conclusion about a person’s health, and it is returned without an answer.

Interesting: What a Buyer Needs When Buying an Apartment

How to register the donation of an apartment (share) to a close relative: mother, daughter, son

The basic requirement when concluding transactions is the full legal capacity of the parties to the agreement. That is, citizens must reach the age of majority. The interests of minors are represented by their parents.

The share donation agreement is drawn up in writing. The rule applies regardless of the degree of relationship between the parties to the transaction. Oral alienation of real estate is prohibited. The agreement gains force after its signing. Notarization of the agreement occurs by agreement of the parties.

An exception is the alienation of part of the premises or the participation of a minor child in the transaction. Such a gift agreement must be notarized. The right of ownership to the alienated object arises after entering information into the Unified State Register.

Example:
The head of the family decided to sign over his apartment to his son and daughter from his first marriage. Each of them was entitled to ½ part of the housing. Both children have reached adulthood. Therefore, their mother's consent was not required. The parties discussed all the main terms of the deal. The deed of gift was drawn up by a notary. On the same day, the papers were submitted to Rosreestr. A week later, the recipients received an extract from the Unified State Register. The donor’s daughter immediately moved to live in the apartment.

What is an apartment share

The owner of the premises may be one person or several. If there are several co-owners, each of them owns a certain part of the property (house, apartment). Moreover, property can be common or shared (Article 244 of the Civil Code of the Russian Federation). Common property means property without determining the shares of participants. Their size depends on the number of co-owners. For example, in a privatized apartment for three people, each family member owns 1/3 of the housing. With shared ownership, each owner owns a specific portion of the property. Moreover, the shares may be different.

Registration of a deed of gift for an apartment between relatives: procedure

Transaction participants must perform the following actions:

Collect the necessary documents.
Prepare a draft agreement.
Contact a notary.
Prepare a deed of gift.
Register ownership.

Documentation

To prepare a deed of gift you will need:

Passport (donor, recipient).
Documents for property (extract from the Unified State Register, cadastral passport).
Extract from the house register.
Consent of the spouse to the alienation of a share of the premises (if necessary).
Confirmation of relationship.

If the latter document is available, the parties to the agreement are exempt from paying personal income tax (Article 217 of the Tax Code of the Russian Federation). The rule applies only to close relatives.

Conditions of a gift agreement between close relatives

Donation of an apartment between close relatives in 2019 is free of charge. There should be no counter-conditions in the agreement. Otherwise it can be challenged. The contract must contain a clear description of the alienated property. The transfer of the share is carried out during the lifetime of the owner of the object. Violation of any clause makes the gift agreement void.

Is the consent of the co-owners required for the alienation of part of the premises? Typically, consent is required in case of sale of property (Article 250 of the Civil Code of the Russian Federation). When concluding a gift agreement there are some nuances. If the property is jointly owned, then consent is required. If the apartment is in shared ownership, then the consent of the co-owners is not required.

Sample deed of gift for a share in an apartment between relatives

Below is a typical example of a deed of gift for an apartment between close relatives in 2020:

Expenses

At the conclusion of the deed, the parties to the deed incur certain costs. How much it costs to register a donation depends on the market price of the object. For notarization of the transaction you will have to pay 0.5% of the value of the gift. The minimum collection amount is 300 rubles. The maximum rate is 20 thousand rubles. The state duty is usually paid by the recipient.

Notary services are paid in addition to the basic tax. On average they amount to 5 thousand rubles. Details need to be clarified at the notary office.

Registration of rights is a separate cost item. When re-registering premises in an apartment building, the tax amount is 200 rubles. When registering an entire apartment, the copyright holder pays 2 thousand rubles.

Taxes

The only tax when concluding a deed of gift is personal income tax. Its size for residents of the Russian Federation is 13%. Non-residents pay 30%.

Who is exempt from paying income tax? Citizens who are close relatives do not pay personal income tax. This includes parents, children, spouses, brothers/sisters. The benefit also applies to grandparents.

Video: taxes on donated real estate:

Deadlines

You can conclude a deed of gift at any time. The parties to the contract determine the time to contact the notary independently. How long does it take to register ownership? The beneficiary can submit papers at any time. However, delaying the procedure is fraught with certain consequences. In the event of the death of the donor, the beneficiary will have to prove his rights to the property in court. Otherwise it will become part of the inheritance.