Fence

22.11.202327.05.2017

Involves the receipt of a certain property benefit for the seller. If the seller receives income as a result of a transaction, he is obliged to declare it to the Federal Tax Service and pay tax. Exceptions to this rule may be provided only by federal law.

Do I need to pay tax on the sale of a house?

Regulatory consolidation

The rules for determining tax obligations when selling real estate changed significantly in 2016, when new amendments were made to the Tax Code of the Russian Federation. Until this time, the obligation to calculate and pay tax was completely eliminated if the seller could confirm the period of ownership of the property for more than three years.

Taking into account the innovations introduced into the Tax Code of the Russian Federation by Federal Law No. 382-FZ, the conditions for tax payments are as follows:

for a private house purchased before 2016, the rules of sale have not changed - tax on income received will be paid only for a period of ownership of less than three years;
for an object acquired after 2016 through free transactions(, privatization transaction), for tax exemption it is also necessary to comply with the three-year rule;
for houses purchased after 2016 on compensated transactions(e.g. purchase and sale), the said tax benefit will only be available after five years of legal ownership.

Note! The duration of ownership will be determined based on their Rosreestr registration information. To be exempt from paying tax, you will need to submit to the tax authority an extract from the state register of the Unified State Register of Real Estate, indicating the dates of purchase and sale of a private home.

The video below will tell you how to return personal income tax for three years if you bought a house:

Definition of income

The definition of income will also play a key role in establishing tax liabilities. consists of transferring payments based on the actual income (profit), which is determined as follows:

if the cost of selling the house turned out to be greater than the purchase amount, the difference between the indicated indicators will be the seller’s income and;
there is a cost of sale and acquisition that turned out to be equal, the seller did not receive a property benefit (income), which eliminates the obligation to pay tax;
if the cost of the house sold was less than the purchase price, income also does not arise and tax does not have to be paid.

These rules are often used to hide or reduce actual income by understating the sale price. This course of action can lead to extremely unfavorable consequences - the Federal Tax Service inspection has the right to receive explanations from counterparties, which will lead to liability in the form of penalties. Also, the option of lowering the price in the contract will not protect the rights of the parties if the transaction is challenged in court.

Special rules for determining the taxable base

In a number of cases, the Tax Code of the Russian Federation regulates special rules for determining the taxable base (income) when selling a private house, which the seller must take into account:

tax obligations will be calculated independently for each of these objects, so it is necessary to draw up two separate contracts or divide the cost of the house and the plot when drawing up a single contract;
if before the sale of the property there was a reconstruction of the house or a significant investment in its repair, the income received can be reduced by the amount of expenses incurred - for this, when calculating the tax, you need to submit an agreement with a contractor or estimate documents confirming the costs of repair work to the Federal Tax Service;
income will be determined in the same way when selling a self-built house(including an unfinished facility) - in order to reduce the tax base, you need to confirm the composition of actual construction costs.

Thus, if the seller cannot avoid paying tax due to short-term ownership of the property, he has the right to significantly reduce the amount of income for the tax rate to apply.

What tax will you have to pay?

When making transactions for the sale of private houses, the buyer will have to calculate and transfer only one type of tax - personal income tax. This must be done in the next calendar year by submitting to.

It must be taken into account that the obligation to calculate and pay tax rests with the seller himself, and if there is no obligation to pay tax, it is not necessary to submit a declaration form.

The 3-NDFL declaration when purchasing a house is discussed in this video:

Size

The uniform tax rate at which income from the sale of real estate is taxed is 13%. However, to determine the amount of income, the Tax Code of the Russian Federation provides special rules related to the use of cadastral value indicators:

when alienating a house purchased before 2016, the old rules are used - an interest rate of 13% is applied to the amount of income calculated from the contract value of the property;
when alienating a house according to the new rules, income can be determined from the contract price if it is higher than the cadastral value of the object multiplied by a coefficient of 0.7;
determination of income based on the cadastral valuation of real estate will occur if the contract price is below 70% of the cadastral value.

These rules were introduced as part of a phased transition to the use of indicators, as well as to avoid deliberate underestimation of the contract price of the object.

Calculation

Let us give a typical example of calculating the amount of tax liabilities when selling a private house if the following facts are established:

the period of ownership of the object did not exceed three years;
the date of its acquisition is February 2017, the purchase amount is 1,000,000 rubles;
the date of sale is May 2017, the sale amount is 1,500,000 rubles and is equal to the cadastral value of the property.

Under these circumstances, there are no grounds for exemption from payment, so the calculation will be carried out as follows: (1,500,000 – 1,000,000) x 13% = 65,000 rubles.

It must be borne in mind that this calculation was made without using, which can be used by almost every taxpayer. This will allow you to completely avoid paying tax or significantly minimize the amount of payment to the budget. We will consider the rules for applying property deductions to reduce the size of tax liabilities below.

Payment Features

Calculation and payment of personal income tax on income from the sale of a private house is carried out by sending it to the tax office. The declaration must be submitted no later than April 30 of the year following the reporting year, i.e. In case of sale of real estate in 2017, the declaration must be made no later than April 30, 2018.

Completion of the declaration is required in all cases, except for legal grounds for exemption from payment. The payer must transfer the calculated amount of tax to the budget no later than July 15 of the year in which the declaration was submitted.

How to avoid paying fees

The ability to use property deductions when selling real estate will allow you to legally avoid transfers to the budget or significantly reduce the amount of tax. For the sale of private houses, a property deduction in the amount of 1,000,000 rubles is applied (this rule is fixed in Article 220 of the Tax Code of the Russian Federation).

This deduction is carried out by reducing the price of the sold object by 1,000,000 rubles.

Therefore, if the sale price does not exceed the specified amount, the obligation to pay tax does not arise.
If the contract price exceeds one million rubles, it is subject to reduction by the amount of property deduction, after which the tax amount is calculated on a general basis.

This rule applies to cases of sale of real estate whose tenure has not exceeded three years. When selling a house owned in shares by different owners, the specified deduction amount will be divided between them in equal proportions.

The video below will tell you how much and for what you can get a tax deduction back:

Tax on the sale of a home is payable if the property in question has been owned for less than three (five) years. The different periods of ownership of property are determined by the method of obtaining the real estate being sold and (or) the date of acquisition of the property. In addition to the income payment payable upon the sale of property, the owner in certain cases needs to make payments to the budget that are determined by the method of acquiring the property (donation, inheritance).

Length of home ownership before tax must be paid

3 years - if the house was purchased before 2016, or received by inheritance, as a gift, through privatization or under a lifelong annuity agreement (including starting from 2016).

5 years - when purchasing a house after 2016, except in cases where it was received by inheritance, as a gift, during privatization and under a life annuity agreement.

The specified period, as a general rule, begins to run from the date of state registration of property rights, and in the case of inheritance - upon opening of the inheritance.

When to pay tax:

if the tenure is less than 3 (5 years);
if the cost of the house is less than a million rubles, or the costs of its purchase (if there are documents confirming them).

Reducing sales tax by the amount of the tax deduction

When selling a house with a plot of land, the amount of income received can be reduced by 1 million rubles. or the amount of expenses for the purchase of this property (if there is documentary evidence of “purchase” expenses).

Example

Sergeeva V.N. in 2014 I bought a house with land. The amount of expenses amounted to RUB 5,254,000.

In 2016, she decided to sell the house for RUB 6,500,000. Since she owned it for less than 3 years, she will be required to pay income tax on it.

As a general rule (without applying a deduction), it will be equal to 845,000 rubles:

6,500,000 rub. * 13 %

If she still has documents confirming expenses for buying a house, she will be able to reduce the income received by the amount spent on the purchase and the tax will be 161,980 rubles:

6 500 000 – 5 254 000

If she has not kept the purchase documents, then she will be able to reduce the amount of tax only by 553,020 rubles.

5 254 000 -1 000 000 * 13%

It should be noted that only residents, that is, those who stay in the territory of the Russian Federation for more than 183 days, have the right to taxation and calculation of tax at a rate of 13%. Non-residents pay tax at a higher rate - 30%, and do not have the right to deduction.

Declaration of income and deadlines for submitting reports and paying payments

All citizens who sold property are required to submit a declaration if it was owned for less than a specified period (3 or 5 years, depending on the date and method of its acquisition). Even if the amount of payment due is zero, the declaration will still have to be submitted. Only those who have owned the sold property for more than 3 (5 years) do not rent it out.

Reports are submitted by April 30 of the year following the year in which the income from the sale was received, and personal income tax is paid a little later - until July 15.

Having answered the question of whether it is necessary to pay tax when selling housing, we will consider what payments must be made to the budget when receiving residential real estate by inheritance and as a gift.

Donation of residential real estate

Housing received as a gift is, as a general rule, subject to an income tax, as is the case with the sale of property, since the recipient receives a certain income.

Real estate received as a gift is not subject to personal income tax if the donee and the donor are family members and (or) close relatives. In all other cases, having received real estate as a gift, you need to pay tax on its value. The size of the tax base (the value from which the tax must be calculated) is determined in the agreement either in accordance with the cadastral value of the property, which can be found in the cadastral passport, or on the Rosreestr website.

It should be noted that even if housing was received as a gift from a relative or family member and is not subject to taxation, income must be declared.

Reporting must also be submitted by April 30 of the year following the one in which the property was donated. For example, if a house with a plot of land was received as a gift in 2016, the declaration must be submitted by April 30, 2017.

Having considered what payment is payable when receiving housing as a gift, we will consider whether housing received by inheritance is subject to any payments.

Receiving housing by inheritance

When receiving housing inherited, no income taxes are subject to collection, except for the situation when the inherited property is sold before 3 years from the date of its receipt. Only in this case, the heirs must pay personal income tax in the amount of 13% on the cost of the sold housing.

In the event of the sale of housing that has been inherited, the heir is obliged to declare income and pay tax within the time limits established by the Tax Code of the Russian Federation. Let's look at an example of how much personal income tax must be paid to the budget when selling the specified property.

Example

Suvorov V.N. in 2016, he inherited a cottage with a plot of land from his mother. Six months later, he decided to sell it. Since three years have not passed since the opening of the inheritance, Suvorov will have to pay tax on the income received from the sale, submit a declaration by 04/30/2017 and by 07/15/2017. pay personal income tax to the budget.

It should be noted that the period of three years begins to run from the moment the inheritance is opened, and not from the date of registration of ownership of the received property.

The only payment that the heirs pay is the state fee for obtaining a certificate of inheritance. The amount of the specified fee directly depends on the degree of relationship between the heir and the testator and is:

0.3% for close relatives, but not more than 100 thousand rubles;
0.6% for all other persons, but not more than 1 million rubles.

Only Heroes of the Soviet Union and the Russian Federation, bearers of the Order of Glory of all degrees, participants and disabled people of the Great Patriotic War are exempt from paying the duty.

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Property tax deduction: The house has been owned for more than 3 years, but has been reconstructed and registered for less than 3 years. Do I need to pay tax?

Short:
The house was purchased in 2001, reconstructed and put into operation on 09.2007 with the entry into the Unified State Register of ownership of the reconstructed residential building, sold on 12.2007 for 3.9 million rubles. The property tax deduction from the sale of the property was unreasonably applied. The court rightfully stated that the disputed property was owned by the taxpayer for more than three years, because by virtue of the current civil legislation, reconstruction is not classified as a basis for the emergence of property rights; Article 218 of the Civil Code of the Russian Federation provides for the emergence of a person’s ownership rights to an object created by him for himself and at his own expense, but not to a reconstructed one, just as reconstruction is not a basis for termination ownership rights to the object that existed before reconstruction.

additional info:
The decision of the Tax Inspectorate that the object of sale was owned by the taxpayer for less than three years, since the specified period is calculated from the date of state registration of ownership of the reconstructed residential building, does not comply with the requirements of the legislation on taxes and fees.

Resolution of the Federal Arbitration Court of the Central District of June 23, 2009 N A62-6190/2008 (extract)

Federal Arbitration Court of the Central District composed of: presiding judge, judges, with participation in the meeting: from the taxpayer Sh.A.A. - entrepreneur (passport), from the Inspectorate - did not appear, were duly notified of the place and time of the hearing of the case, having considered in open court the cassation appeal of the Inspectorate of the Federal Tax Service for the Zadneprovsky District of Smolensk against the decision of January 26, 2009 of the Arbitration Court of the Smolensk Region and Resolution dated March 23, 2009 of the Twentieth Arbitration Court of Appeal in case No. A62-6190/2008, established: Individual entrepreneur Sh.A.A. (hereinafter referred to as the Entrepreneur, taxpayer) applied to the arbitration court to invalidate the decision of the Inspectorate of the Federal Tax Service for the Zadneprovsky District of Smolensk (hereinafter referred to as the Inspectorate, tax authority) dated September 19, 2008 N 4123, as well as to recover legal costs from the Inspectorate payment for representative services in the amount of 7,000 rubles. (taking into account clarifications) By the decision of the Arbitration Court of the Smolensk Region dated January 26, 2009, the Inspectorate’s decision dated September 19, 2008 N 4123 was declared invalid. Legal expenses in the amount of 4,000 rubles were recovered from the tax authority in favor of the taxpayer. the application for recovery of the rest of the legal costs was rejected. By the decision of the Twentieth Arbitration Court of Appeal dated March 23, 2009, the decision of the arbitration court of first instance was left unchanged. Also, legal costs in the amount of RUB 4,058.23 were recovered from the Inspectorate in favor of the Entrepreneur.

In the cassation appeal, the Inspectorate asks to cancel the decision and order of the court, believing that the court has not fully clarified the factual circumstances of the case. By virtue of Part 1 of Art. 286 of the Arbitration Procedure Code of the Russian Federation, the arbitration court of cassation examines the legality of decisions and resolutions adopted by the arbitration court of the first and appellate instances based on the arguments contained in the cassation appeal.

Having studied the case materials, considered the arguments of the cassation appeal and review, and listened to the Entrepreneur’s explanations, the cassation instance does not find any grounds for canceling or changing the appealed judicial acts.

As follows from the case materials, the Inspectorate conducted a desk audit of the updated personal income tax return submitted by the Entrepreneur for 2007.

Based on the results of the audit, an act dated August 27, 2008 N 6764 was drawn up and a decision dated September 19, 2008 N 4123 was drawn up, according to which the taxpayer was asked to pay personal income tax in the amount of 360,865 rubles.

The basis for this additional assessment was the Inspectorate’s conclusion that the Entrepreneur had unreasonably applied a property tax deduction from the sale of non-residential premises in an amount exceeding RUB 1,000,000. According to the tax authority, the object of sale was owned by the taxpayer for less than three years, since the specified period is subject to calculation from the date of state registration of ownership of the reconstructed residential building. Believing that the Inspectorate’s decision does not comply with the requirements of the legislation on taxes and fees, the Entrepreneur filed a corresponding application with the arbitration court.

The court fully and comprehensively examined the evidence presented by the parties and, having correctly applied the rules of substantive law, adopted reasonable judicial decisions on the merits of the dispute.

In accordance with Art. 209 of the Tax Code of the Russian Federation for individuals who are tax residents of the Russian Federation, the object of taxation is income received from sources in the Russian Federation and (or) from sources outside the Russian Federation. According to paragraphs. 1 clause 1 art. 220 of the Tax Code of the Russian Federation, a taxpayer has the right to receive property tax deductions in amounts received during the tax period from the sale of residential houses, apartments, dachas, garden houses or land plots that were owned by the taxpayer for less than three years, but not exceeding a total of 1,000,000 rubles. When selling residential houses, apartments, rooms, including privatized residential premises, dachas, garden houses and land plots and shares in the said property that were owned by the taxpayer for three years or more, as well as when selling other property that was owned by the taxpayer for three years or more Moreover, a property tax deduction is provided in the amount received by the taxpayer upon the sale of the specified property. In accordance with paragraph. 4 pp. 1 clause 1 art. 220 of the Tax Code of the Russian Federation, the provisions of this subparagraph do not apply to income received by individual entrepreneurs from the sale of property in connection with their business activities.

Apparently there was a typo in the previous paragraph. This means paragraph. 5 pp. 1 clause 1 art. 220 Tax Code of the Russian Federation

The case materials confirm that, in accordance with the purchase and sale agreement dated August 11, 2000, the taxpayer acquired ownership of a residential building at the address: Smolensk, st. B., no. 67. The ownership of the specified property was registered in the Unified State Register of Rights to Real Estate and Transactions with It on 01/19/2001, about which a certificate dated 02/05/2001, series 67 N 028795, was issued.

According to the certificate, the residential building had the following characteristics: number of storeys - 1, total area - 29.7 square meters. m, living area - 22.5 sq. m. While the residential building was owned by the taxpayer, reconstruction was carried out associated with a change in the number of storeys (ground, first and second floors) and the area of the house (total area - 166.6 sq. m, living area - 71 sq. m).

On September 13, 2007, the administration of the city of Smolensk issued a permit to the entrepreneur to put the facility into operation, and on October 23, 2007, a record was made in the Unified State Register of Registered Ownership of the reconstructed residential building.

On December 4, 2007, the taxpayer entered into a purchase and sale agreement, in accordance with the terms of which the residential building was sold for RUB 3,900,000. In satisfying the stated requirements, the courts of first and appellate instances reasonably proceeded from the following.

According to Art. 219 of the Civil Code of the Russian Federation, the right of ownership of buildings, structures and other newly created real estate, subject to state registration, arises from the moment of such registration.

Thus, the ownership right to the disputed house arose from the moment of state registration of the said right by the Registration Chamber of the Smolensk Region - from 01/09/2001.

By virtue of paragraph 1 of Art. 235 of the Civil Code of the Russian Federation, the right of ownership is terminated, in particular, when the owner alienates his property to other persons.

In the case under consideration, ownership of the specified property was terminated on December 4, 2007 due to the conclusion of a purchase and sale agreement. Under such circumstances, the court rightfully stated that the disputed property was owned by the taxpayer for more than three years - from 01/09/2001 to 12/04/2007, in connection with which the Entrepreneur has the right to receive a property tax deduction in the amount received from the sale of the said property. The Cassation Board notes that the tax authority does not question the fact of use and sale of a residential building outside of connection with the taxpayer’s business activities.

The Inspectorate’s argument that as a result of the reconstruction of a residential building acquired in 2001, a new property was created, the ownership of which arose from the moment of its state registration and the issuance of a new certificate, that is, from October 26, 2007, and therefore at the time of its alienation the disputed property was owned by the Entrepreneur for less than three years, a proper assessment was given by the court.

By virtue of the current civil legislation, reconstruction is not classified as a basis for the emergence of property rights; Article 218 of the Civil Code of the Russian Federation provides for the emergence of a person’s ownership rights to an object created by him for himself and at his own expense, but not to a reconstructed one, just as reconstruction is not a basis for termination ownership rights to the object that existed before reconstruction.

At the same time, the provisions of paragraphs. 1 clause 1 art. 220 of the Tax Code of the Russian Federation does not establish any special rules for residential buildings that have undergone reconstruction.

In addition, as established by the court of first instance, on October 23, 2007, the entry into the Unified State Register of Entries on the registration of ownership of the reconstructed residential building was made by the authorized body in pursuance of departmental regulations not related to the legislation on taxes and fees. Under such circumstances, the courts of first and appellate instances had sufficient grounds to satisfy the taxpayer’s claims. Based on the above, the cassation appeal cannot be satisfied.

An individual has owned a house for more than 3 years. At the moment he is reconstructing this house i.e. expands the area and changes the external and internal decoration. And accordingly, after the reconstruction it receives a new green paint. Can he not submit a personal income tax declaration 3 upon sale or after reconstruction, the house will be considered a new object

According to the tax authorities, in such a situation the tax should be paid and the 3-NDFL declaration must be submitted, however, there is an opinion, which is based on a cumulative analysis of the norms of the current legislation, that in this situation there is no need to pay personal income tax. When making a decision, you need to take into account the fact that with a high degree of probability you will have to defend your position in court.

If the completion of the house is carried out with a change in the external boundaries, then, in the opinion of the tax department, this leads to to create a new property. Consequently, the countdown of the period of its ownership recalculated. This position is reflected in the letter of the Federal Tax Service of Russia dated August 8, 2012 No. ED-3-3/2803. This means that all income from the sale of a house with changed external boundaries must be paid personal income tax, which must be reflected in the tax return (Article 219 of the Tax Code of the Russian Federation).

When reconstructing an existing property no new object is created. What should be understood by reconstruction is indicated in paragraph 14 of Article 1 of the Town Planning Code of the Russian Federation. From this definition it follows that the superstructure, reconstruction, expansion of an object is its reconstruction. Such clarifications are given in the letter of the Ministry of Economic Development of Russia dated July 26, 2011 No. OG-D23-608.

Consequently, the completion of a residential building does not entail a change in the rights to it, and, therefore, repeated state registration of the existing ownership right to it is not required. In case of completion of a residential building, changes are made to the Unified State Register of Rights to Real Estate and Transactions with It (USRP). This means that the moment a person’s ownership of a residential building arises is not the date of registration of changes to the property in connection with its completion, but the moment of initial state registration of ownership of it.

Thus, if a person has owned a house for three years or more, then income from its sale is not subject to personal income tax at all (Clause 17.1, Article 217 of the Tax Code of the Russian Federation).

This conclusion follows from the set of rules established by Articles 130–131, 164, 219 and paragraph 1 of Article 235 of the Civil Code of the Russian Federation, paragraph 1 of Article 4 of Law No. 122-FZ of July 21, 1997, Section VII of the Rules approved by order of the Ministry of Economic Development of Russia dated December 23, 2013 No. 765.

It should be noted that arbitration practice on this issue has not yet developed. Therefore, evaluate the amount of expenses or property deduction by which taxable income can be reduced, and based on this, the advisability of legal proceedings.

And

Olga Krasnova, Director of BSS "Sistema Glavbukh"

Sales proceeds

Personal income tax is imposed on income received from the sale of property:

resident (subparagraph 5, paragraph 1, subparagraph 5, paragraph 3, Article 208, Tax Code of the Russian Federation);
non-resident, if at the time of sale the property is located on the territory of Russia (subclause 5, clause 1, article 208, Tax Code of the Russian Federation).

A person (resident or non-resident), as a rule, must independently:

calculate and pay personal income tax;
submit a declaration in form 3-NDFL based on the results of the year in which he received income from the sale.

The exceptions are:

income from the sale of property owned by a resident for three or more years;
proceeds from the sale of some shares in the authorized capital and some shares.

They are not subject to personal income tax. This procedure is established by subparagraph 2 of paragraph 1 of Article 228 and paragraphs 17.1 and 17.2 of Article 217 of the Tax Code of the Russian Federation.

Such obligations are enshrined in paragraphs 1–3 of Article 228 and paragraphs of Article 224 of the Tax Code of the Russian Federation.

The amount on which personal income tax must be paid is equal to the amount of income from the sale.

If property that is in common shared ownership is sold, then the amount of income must be distributed. In this case, the co-owners have the right to determine any procedure for the distribution of income from the sale of such property among them, regardless of the size of their shares in ownership.

The procedure itself can be specified in a contract or additional agreement. Clearly state who will receive income from the sale of property and in what amount. It is income, not just money from the buyer. Since controllers believe that the indication that one of the owners will receive all the money from the sale is not a procedure for distributing income. Determine the amount on which personal income tax must be paid taking into account the agreement reached. Such conclusions follow from letters of the Ministry of Finance of Russia dated October 7, 2014 No. 03-04-05/50328 and dated August 28, 2014 No. 03-04-05/42984.

Situation: on what amount of income does a person need to pay personal income tax when selling a residential building, if its area has been increased by completing construction? One part of the house was owned for more than three years, and the completed part was owned for less than three years.

You must pay personal income tax on all income from the sale of a house if the house is completed with changes in the external boundaries. If the external boundaries of the house have not changed, you do not pay tax.

If the house was completed without changing the external boundaries, then you will not have to pay personal income tax when selling it. Since the fact of registering a house with an increased area without changing the external boundaries does not entail the termination of ownership of it (clause 68 of the Rules, approved by order of the Ministry of Economic Development of Russia dated December 23, 2013 No. 765). A similar point of view is reflected in letters of the Ministry of Finance of Russia dated January 26, 2012 No. 03-04-05/7-77 and the Federal Tax Service of Russia dated August 8, 2012 No. ED-3-3/2803.

If the completion of a house is carried out with a change in the external boundaries, then, in the opinion of the tax department, this leads to the creation of a new property. Consequently, the countdown of the period of its ownership is calculated anew. This position is reflected in the letter of the Federal Tax Service of Russia dated August 8, 2012 No. ED-3-3/2803. This means that all income from the sale of a house with changed external boundaries must be paid personal income tax ().

The chief accountant advises: There are arguments that allow you not to pay personal income tax when selling a house with changed external boundaries. They are as follows.

When renovating an existing property, a new property is not created. What should be understood by reconstruction is indicated in paragraph 14 of Article 1 of the Town Planning Code of the Russian Federation. From this definition it follows that the superstructure, reconstruction, expansion of an object is its reconstruction. Such clarifications were given in the letter of the Ministry of Economic Development of Russia dated July 26, 2011 No. OG-D23-608.

This conclusion follows from the set of norms established by articles and paragraph 1 of Article 235 of the Civil Code of the Russian Federation, Article 4 of the Law of July 21, 1997 No. 122-FZ, Section VII of the Rules approved by the Code) regarding determining the period of ownership of property by an individual .In accordance with paragraph 17.1 of Article 217 of the Code, income received by individuals who are tax residents of the Russian Federation for the corresponding tax period from the sale of property that was owned by the taxpayer for three years or more is not subject to personal income tax. provides for the following grounds for termination of ownership: alienation by the owner of his property to other persons, refusal of the owner of the right of ownership, destruction or destruction of property, loss of ownership of property in other cases provided for by law. From the provisions of paragraph 67 of the Rules for maintaining the Unified State Register of Rights to Real Estate and Transactions with It, approved by Decree of the Government of the Russian Federation dated February 18, 1998 No. 219, it follows that a change in real estate in connection with reconstruction or redevelopment without changing the external boundaries does not entail constitute a termination of ownership of it.

Thus, the fact of registration of a property by a taxpayer in connection with an increase in its area as a result of redevelopment without changing the external boundaries does not entail the termination of the taxpayer’s ownership of this premises.

When selling a piece of real estate that has belonged to the taxpayer for more than three years, income from the sale of this residential building is not subject to personal income tax. At the same time, if as a result of redevelopment the external boundaries of the premises have changed, then a new property has arisen.

According to Article 219 of the Civil Code of the Russian Federation, the right of ownership of buildings, structures and other newly created real estate, subject to state registration, arises from the moment of such registration. In the event of the sale of a property owned by the taxpayer for less than three years, the income received is subject to tax on income of individuals in the general order.

At the same time, the Federal Tax Service of Russia draws attention to the fact that the above explanation sets out the general procedure for taxation of income of individuals, which does not take into account specific circumstances and conditions. Considering that you have not provided the documents and information necessary to assess specific circumstances, it is not possible to give a reasoned opinion on the substance of the questions raised.

In this regard, on the basis of subparagraph 1 of paragraph 1 of Article 21 of the Code, you have the right to submit a corresponding request (with supporting documents attached) for clarification to the tax authorities at your place of registration.

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In 2002, I bought myself a small house in a village not far from the city. I thought it would be a dacha, but I quickly realized that it wasn’t for me. In general, after 5 years I decided to sell this house.

But in order to sell it cheaper, I decided to add another room to the house and make an attic. This turned out to be a two-story cottage that could be sold for much more than just a village house. This was my business plan.

I received permission from the village administration to reconstruct the house, took out a bank loan, bought building materials, hired a crew, and over the summer, instead of a rickety log house on the site, I had a brick two-story cottage. I made an asphalt driveway and a metal lattice fence to it. In general, a sight for sore eyes. And only 30 kilometers from the city. Therefore, a buyer was found quite quickly. The only problem is that since the area of the house has increased, a second floor has appeared, so I had to legalize the reconstruction. But then the “dacha amnesty” had just been announced, so the reconstruction was easily legalized for me. I received a brand new Certificate of Registration of Property Rights, it indicates the new area of the house - 140 sq. m. meters.

Well, with a new certificate in hand (or rather, with two certificates - one for a plot of land, and the second for a house), the buyer and I came to the registration chamber and drew up an agreement. And when drawing up the contract, the girl from the law firm tells me - what amount should I indicate in the contract? One million rubles? I say - no, why one million, write the real amount - five million. One million is the cost of the plot and four million is the cost of the house. She says that you will have to pay personal income tax on amounts exceeding 1 million. And I explain to her that I have owned the house for more than three years, so income from its sale is not subject to personal income tax. She says - well, okay.

In general, we signed the contract, I received the money, and we both left happy. After the New Year, I, as expected, filed a declaration in Form 3 of personal income tax that I received an income of 5 million, it is not subject to tax, I attached supporting documents - an agreement, copies of registration certificates - one for the land, the other for the house. The total amount to be paid is zero rubles.

And three months later the phone rang in my apartment. And the tax inspector informs me that I must pay personal income tax in the amount of 360 thousand rubles. Well, I started explaining to her that I had owned the house for over three years, so the income from the sale of the house was not taxable. And she tells me that since the Certificate of Ownership was issued less than a year ago, then, therefore, I have owned this house for less than a year too. Therefore, be kind, pay well, otherwise we will take it badly.

And I once worked as the director of an auditing firm, so this is not the first time I have butted heads with the tax office, I know that it is useless to explain to this inspector over the phone. I immediately wrote a complaint to the head of the tax service. I explained the whole situation, that I have owned the house for more than three years, therefore I am exempt from paying personal income tax. And the fact that there is a new Certificate of Registration of Property Rights, it was not issued in connection with the acquisition of new property (house). And due to changes in the technical characteristics of the old property. The area of the house has simply changed - but the old house remains the same.

They called me to the head of the Federal Tax Service, where I met with the inspector with whom I spoke on the phone. We didn’t agree on anything, they gave me their arguments - The registration certificate is new - that means the house is new. I give them my arguments - in order to build a NEW house, you need to demolish the old one, draw up a demolition certificate, then get a building permit, and a lot more needs to be completed. And the fact that the Certificate is new simply legitimized the reconstruction of the OLD house.

In general, we did not come to a mutual agreement; they told me that they would demand that I pay the tax through the court. And since I worked in an audit firm, I had already won several cases with the Federal Tax Service, so I was sure that I would win this process too.

However, when I was preparing for the process, I read the comments on the legislation, studied the Town Planning Code (before I didn’t even know about the existence of such a thing), and realized that I had “gotten it.” This is all the more offensive because, while working as the director of an auditing firm, I myself taught people how to competently and legally reduce taxes. And now, like that shoemaker without boots, he was caught “out of the blue.”

It turns out that the concept of “new home” is interpreted differently in different branches of law. The engineering and legal meanings of the word differ “exactly the opposite.” After all, according to the law, ownership of a property arises only after registration of the right. Therefore, since I received a new Certificate of Registration, it is legally considered that my ownership arose at that very moment. Even though the area of the house was actually only slightly changed - well, they added one room, so what? Has the house gone from old to new?

It turns out - yes! And it turns out that I am not the only one who fell into such a “trap”. That’s why this inspector spoke to me so confidently, because I wasn’t her first.

And, apparently, not the last. So, gentlemen, keep this incident in mind when you apply for tax deductions.

By the way, avoiding taxation (and thus saving 360 thousand rubles) was offensively simple. It was necessary to indicate in the contract that the cost of the house is 1 million (this amount is not taxed). And the cost of the plot on which the house stands is 4 million. I owned the land for a long time, but I didn’t issue a new registration certificate for it.

Live and learn. Preferably, not on your own, but on the mistakes of others. I hope this story of mine will be useful to someone.