The procedure for re-registering an apartment to a relative without paying taxes

Donating a share is perhaps the easiest way to transfer part of a residential property to a relative or any other person. The main advantage is that you usually don’t need to ask anyone for permission, and the recipient receives rights to square meters only for signing the contract. Read about these and other subtleties of giving in our material.

What to choose from

A purchase and sale agreement is not the best option. The only advantage of such a deal is the speed of registration.

Important! It will not be possible to obtain a tax deduction if documents are drawn up between close relatives. Therefore, it makes sense to pay attention to other methods.

If the apartment has been owned for less than three years, then you will also have to pay tax. A purchase and sale agreement is most often just a way to transfer property. In reality, relatives do not pay each other anything, so there is a basis for recognizing the agreement as void. And such consequences are undesirable for both parties.

There are two more alternative options for transferring housing to a relative: donation and will.

About donation between close relatives

There are no special features in the transaction; it occurs between close relatives. There is no need to include a clause on the relationship between the participants in the gift agreement, no additional documents are needed, etc. The transaction is carried out just like any other. There is a feature, but only after the transaction and is related to taxes.

A small digression - if you need a free consultation, write online to the lawyer on the right or call (24 hours a day, 7 days a week): 8 (499) 938-45-78 - Moscow and region; St. Petersburg and region; all regions of the Russian Federation.

What to choose: will or deed of gift

The documents should not be confused, since they have significant differences. According to the will, the relatives will receive the property only after the death of the testator. But by gift, an apartment or house can be transferred at any time. Therefore, the choice depends on the interests of the parties.

When making a will, expenses increase. You will definitely need to contact a notary. You can draw up a deed of gift yourself. Only if a share of real estate is donated, notarization is a prerequisite.

List of persons who do not have the right to donate shares:

• Minor children;
• Citizens who are undergoing treatment, maintenance and education in hospitals, nursing homes, boarding schools, and orphanages. Their relatives will also not be able to give a share to anyone;
• Representatives of young children and incapacitated citizens;
• Owners of a share of an apartment pledged to credit institutions (the bank gives permission only in exceptional cases);
• Owners whose share is less than the minimum amount established by law. We are talking about the minimum living space per person. The norms are prescribed in regional regulations and vary from 8 to 15 square meters. m. In this case, you cannot either sell a share in the apartment or donate it as a gift;
• Commercial structures that decided to make a gift transaction among themselves. But a legal entity can make a similar gift to an individual and vice versa.

How to re-register an apartment to a relative without taxes

There is an opportunity to avoid unnecessary expenses: donate housing to a close relative.

Compared to registering an inheritance, donation will be cheaper. After all, you can save on notary services. When compared with a purchase and sale agreement, the deed of gift also wins. You will not have to pay personal income tax.

The only expense that the recipient of the gift will have to make is to pay a fee for registering ownership. The payment amount is 2,000 rubles.

Donation is a completely free transaction. Even if you set a ridiculous price, the tax authorities will be able to find fault. Therefore, it is necessary to draw up an agreement in strict accordance with the Civil Code of the Russian Federation.

Who has the right to give and who is prohibited

To donate a share of ownership in an apartment, you need to meet several requirements:

• Own housing and a share, the right to it must be registered with Rosreestr;
• Be of legal age;
• Be competent and mentally healthy.

Many people mistakenly believe that making such a generous gift is as difficult as selling part of the home, because other owners may object. However, in this regard, donating a share in an apartment and selling it are two different things.

To donate a share, the consent of others is not required, because it is a gratuitous transaction. That is, the donor does not receive money for it.

Sales fall into the category of compensated transactions, therefore, the disposal of shared property is permitted only with the consent of all its owners. For example, a husband will not be able to sell a share in an apartment, bypassing his wife. Moreover, this applies not only to the sale of a share in an apartment, but also to the redevelopment of housing.

When do you have to pay tax?

Only close relatives receive exemption from tax obligations. This includes parents and children, as well as spouses and brothers and sisters. Moreover, sisters and brothers are recognized as close relatives when they have not only two common parents, but also one father or mother.

The rules about who pays the tax and who does not were established by clause 18.1 of Art. 217 Tax Code.

If you donate housing to people who are not close to you, you will have to pay 13%.

Video: In what cases do you need to pay tax and when can it be avoided?

Arbitrage practice

It is difficult to cancel a deed of gift, but if plaintiffs contact good lawyers, their chances increase.

As an example, here are a few real court decisions:

• Decision No. 2-2979/2018 2-87/2019 2-87/2019(2-2979/2018;)~M-2690/2018 M-2690/2018 dated April 9, 2021 in case No. 2-2979/2018 ;
• Decision No. 2-243/2019 2-243/2019~M-47/2019 M-47/2019 dated March 19, 2019 in case No. 2-243/2019;
• Decision No. 2-102/2019 2-102/2019~M-26/2019 M-26/2019 dated March 5, 2019 in case No. 2-102/2019.

All cases were considered according to the claim procedure. As a result, the plaintiffs received the donated property back.

How to re-register an apartment for your son without tax

To transfer housing to your son without tax, you need to follow the instructions:

1. Draw up a deed of gift. The following information must be indicated in the contract:

• date and place of compilation,
• Full names of both parties,
• object of donation (exact apartment area and address),
• document confirming ownership.

1. At the end, both parties put their signatures. No compensation can be mentioned in the agreement.
2. You can draw up the document yourself when you don’t want to overpay for notary services. If a share in real estate is given, notarization will be required. Its value depends on the degree of relationship between the parties. Close relatives pay 0.1% of the contract amount, for others the tariff is 1% of the housing price. When the cost of housing is over 1,000,000 rubles, the tariff will be 0.75%.
3. Pay the fee to register ownership.
4. Collect the necessary documents:

• participants' passports,
• spouse's approval for the transaction,
• apartment certificates,
• duty payment receipt,
• notarized power of attorney, if the documentation is submitted by a representative.

1. Contact specialists from Rosreestr or a specialized government center (formerly MFC) to register ownership rights.
2. Receive an extract from the Unified State Register of Real Estate confirming ownership.

For registration, the deed of gift is drawn up in triplicate. One of the documents is transferred to Rosreestr.

Read also: How to transfer a dacha to another person.

Until the age of fourteen, a guardian signs for a minor. After 14 years, a son or daughter can sign independently. When minors are involved in a housing transaction, the approval of guardianship specialists will be required.

Stage No. 1 – draw up a gift agreement

It is important to know 2 main points about the gift agreement.

Firstly, an agreement between close relatives does not differ from a standard agreement and is drawn up in the same way as any other. Because it makes no sense to indicate the degree of relationship between donors and recipients. I described all the details in the link.

Secondly, if all the owners of the apartment (donors) are adults and capable, the gift agreement is suitable in a simple form - more details. Who will be the recipient (to whom the gift is given) does not matter. If the owner-donor is a minor or incompetent, the agreement is required in notarial form - clause 2 of Art. 54 Federal Law N 218-FZ.

I have uploaded standard contracts for the most common cases. If your case is not there, download several samples that suit your meaning and create your own based on them.

• One donor and one donee - or
• One donor and several donees (in equal or unequal shares) - or
• Several donors and one donee - or
• Several donors and several recipients (in equal or unequal shares) - or a sample
• The apartment is given to a minor child (under or over 14 years old) - or
  The contract should also indicate the representative of the child-done - one of the parents, guardian or trustee Art. 26 and art. 28 Civil Code of the Russian Federation. If a child is given an apartment by one of the parents and the spouses are married, we indicate the other parent as the child’s representative under the contract. When donating an apartment by both parents, either of them can be the child’s representative. If the spouses are divorced or there is no second parent (died, not indicated on the birth certificate, etc.), then the first parent can be both the donor and the representative of his child-done - letter of the Federal Tax Service dated June 21, 2021 N 2664/ 06-08. When a child is given an apartment by, for example, a grandmother, one of his parents (guardian) may be his representative. Better mother.
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  For a child under 14 years of age, the contract is signed by his representative specified in the contract - Art. 28 Civil Code of the Russian Federation. The presence of the child is not required anywhere. A child from 14 to 18 years old signs the contract himself + his representative signs as consent - Art. 26 Civil Code of the Russian Federation. Then both submit the agreement for registration.

• With a clause on the lifelong right of residence of the donor - or
• By power of attorney from the donor - or
• By power of attorney from the donee - or
  the Donor does not have the right to sign an agreement for the donee, and vice versa - clause 4 of Art. 182 of the Civil Code of the Russian Federation. Therefore, they cannot issue a power of attorney for each other to sign. You can, for example, collect documents and submit a registration agreement.

After the agreement has been drawn up, it must be taken to the MFC “My Documents” or the Federal Registration Service so that on its basis the transfer of ownership to the donees can be registered. More details later in stage No. 2.

How taxation works

Here are some examples:

Example No. 1. Ledentsova I.M. gave her niece an apartment in the Moscow region. The cost of the property is 4,000,000 rubles.

A niece and an aunt are relatives, but they are not close relatives.

Tax calculation: 4,000,000 * 13% = 520,000 rub.

Example No. 2. Starovoitova N.A. gave her two daughters an apartment. The cost of the property is 3,200,000 rubles. The daughters will not have to pay anything to the state budget. After all, mother and daughter are closely related. Therefore, they receive an exemption from paying the fee.

Making a will

You can draw up a will in any form yourself or seek the help of a lawyer. For it to be valid, several conditions must be met:

• registration is carried out with mandatory notarization;
• the text of the will must contain all information about the property, excluding the possibility of discrepancies - an extract from the Unified State Register of Real Estate , full address, full characteristics of the property;
• indication in the text of the data of the intended heirs (passport, registration) and the exact share allocated to them by the testator.

When drawing up a will, lawyers recommend clearly stipulating your will so that later discrepancies or different interpretations do not arise. It happens that heirs not included in the will go to court in the hope of redistributing property. That is why the document drawn up should be as transparent as possible.

It is possible to stipulate the procedure for transferring property in the event of the death of the first named heir. The appointed executor (executor of the will) will become the guarantor of the fulfillment of the will of the testator.

Important! When drawing up a will, you need to remember that there are several categories of heirs, the allocation of a share of the property to whom is required by law. These are minor children, disabled relatives, and retired parents. If they are not specified in the will, it can be challenged in court.

Is it possible to avoid paying the fee?

There are two ways to do this:

1. Issue a deed of gift twice to make a gift through a close relative. For example, an uncle wants to give a house to his nephew. To avoid paying a fee, you can first donate housing to your brother. The nephew will receive the house through a deed of gift from his father. Then you won't have to pay tax. But paying the state fee for registering ownership rights will not be avoided.
2. Sign a fictitious purchase and sale agreement. You will not have to pay the fee if the citizen has owned the property for more than three years. And under this condition, you can issue a deduction.

In this case, the costs will be even less than with a gift. There are no clear instructions on how to avoid paying the fee. Therefore, people use available methods of tax evasion.

What is a share in an apartment

An apartment can belong to several owners at once, being in their joint or shared ownership. In Russian law these are two different concepts.

What you need to know about shared ownership

1. Joint ownership means that the apartment is not divided into shares. For example, a couple bought and simply registered a living space for two, or a family of four privatized housing.
2. Shared ownership is the property of two or more people on the basis of common ownership with the determination of the share of each owner. There are many options for its appearance: spouses or close relatives can divide the housing into shares, the apartment was inherited by several relatives at once, etc.

Children can also be the legal owners of part of the home. For example, the basis for allocating a share in an apartment to a minor is its purchase using maternity capital. In this case, the child’s share in the apartment cannot be less than what is due to him by law.

After allocating a share, it must be registered in the Unified State Register of Real Estate.

In the documents, the shares are designated as ½, ⅓, ¼ of the apartment. Moreover, each owner owns not a specific part of the housing, but the entire apartment. He has the right to use any of her rooms, every centimeter, at will. Usually, share owners themselves agree on who will live in which premises. In cases where the issue cannot be resolved peacefully, the court helps. In particularly difficult situations, the share is allocated in kind, if, of course, there are technical conditions for this (it is possible to equip a hotel entrance and a personal bathroom in the room).

Bottom line

1. Taxation under a gift agreement depends on the closeness of the family relationship between the parties. Only close people are exempt from paying the fee. The rest will have to pay tax.
2. Payment to the budget is made not only when donating real estate, but also vehicles, shares, and other valuables. Therefore, we have to look for options on how to transfer property and not share the income received with the state. Sometimes buying and selling is more profitable than donating.
3. There are also alternative options on how to transfer an apartment to a relative legally without taxes. The choice depends on the interests of the parties.

Is it possible to challenge a deed of gift drawn up without a notary?

The contract is contested on the grounds specified in Art.
578, art. 166-179 of the Civil Code of the Russian Federation, regardless of the presence or absence of a notary’s signature. But when contacting a notary office, a specialist will immediately notice legal errors and will not allow the preparation of a deed of gift, which can be canceled in the future. What are the grounds for canceling a transaction:

• Drawing up a feigned DD to cover another transaction: barter, sale;
• Execution of an imaginary agreement without creating further legal consequences - transfer of the donated property to the donee;
• An attempt by the donee on the life and health of the donor or his relatives;
• Signing a contract under the influence of threats, violence, blackmail;
• Drawing up a deed of gift under the influence of a misconception regarding the consequences or nature of the transaction.

The donor's creditors have the right to challenge the agreement if the property is alienated free of charge within 6 months after the decision on its bankruptcy enters into legal force.

The right to challenge is also granted to the heirs of the donor who died as a result of the donee’s intentional criminal actions.

To cancel a transaction, you need to go to the district court with your passport and evidence confirming the grounds for cancellation.