Tax when donating an apartment - who, how much, how to pay

Article updated: December 22, 2021
Marina AfanasyevaTax consultant with 5 years of experience

Hello. Here you will find detailed information about gift tax. More precisely, it is a personal income tax (NDFL). In the article I will repeat myself a lot, i.e. write some statements many times, but “from different angles.” The fact is that the same questions are asked in the comments.

Tax on gift of an apartment between close relatives
Donors never pay tax
The donee pays the tax
Tax rate and how much to pay
How is it paid?
What happens if you don’t pay - fines, penalties

When donating an apartment between close relatives

When donating an apartment between close relatives, you do not need to pay tax . Donors don’t pay tax anyway – I explained why below. Donees are not required to pay tax if they were given real estate by a close relative - clause 18.1 of Art. 217 Tax Code of the Russian Federation.

Show list of close relatives ↓

spouse;
parents;
natural or adopted children;
grandparents in relation to their grandchildren and vice versa;
siblings, or who have at least one common parent (half-siblings).

Show examples ↓ Example No. 1: Spouses Andrei and Marina gave an apartment to their children - son Andrei and daughter Oksana. 1/2 share each. Nobody has to pay tax.

Example No. 2: Oleg gave an apartment to his grandson Artem and his wife Svetlana. 1/2 each. Since Svetlana is not considered a close relative of Oleg, she must pay a tax of 13% of the cadastral value of 1/2 of the apartment. Those. from the donated share. The bet details are listed below.

A small digression - if you need a free consultation, write to the consultant on the right or call (24 hours a day, seven days a week for all regions of the Russian Federation) Moscow and the region; 8 (812) 425-62-89 — St. Petersburg and region; all regions of the Russian Federation.

If the apartment was received as a gift

STEP-BY-STEP INSTRUCTIONS – continued:

If the agreement that provides the basis for obtaining ownership of an apartment is a “deed of gift ,” then this, as a rule, does not cause much concern for realtors. Although there are some pitfalls here too.

For example, if the Donor is declared incompetent at the time of making a gift transaction , then such an agreement is declared invalid by the court.

True, the risk of possible incapacity of the apartment owner is inherent in any transaction for compensation, with the exception of the purchase of an apartment on the primary market. And the Donor could not understand the meaning of his actions, or be under the influence of delusion, deception or coercion at the time of donating his property - all this can serve as a reason for declaring the donation transaction invalid.

But here we shouldn’t worry too much, since it is very difficult to prove in court the fact of “insanity,” “delusion,” or “coercion,” especially after a long time (for example, a year).

In addition, if we see that the Apartment Donation Agreement has been certified by a notary, then the likelihood of the Donor’s is extremely low, because The notary acts, among other things, as an official witness of the sanity and capacity of the parties to the transaction, and at the same time as a witness of their goodwill (i.e., the absence of delusion or coercion).

Theoretically, if the Gift Agreement was not concluded between relatives, then there is a risk that there was a sale of the apartment, “disguised” as a gift . The court may recognize such a transaction as sham and, therefore, invalid.

But, firstly, this is also difficult to prove, and secondly, logically, only the deceived party (potentially the Donor himself) can initiate a challenge to such a transaction.
This means that if a reasonable period has passed since the donation (say, a year or two), then the claims of the “deceived” party are unlikely. And after three years (the total limitation period) - they are close to zero. What is the difference between a technical passport and a technical plan for an apartment?
What document is needed for the transaction? In general, in judicial practice, gift transactions are very rarely recognized as invalid (more about this in the link in the Glossary), and for such a decision it is difficult to provide convincing evidence for the court. Therefore, a “deed of gift” in the form of the basis of the Seller’s ownership of the apartment is considered a relatively low-risk option for the Buyer.

In some cases clearly specified in the law, the legislation allows the Donor to revoke his gift back, but such revocation of the donation does not affect the consequences of the purchase and sale transaction of the donated apartment . All claims and compensation in this case will occur between the Donor and the Donee , and the Buyer of the apartment will no longer have anything to do with these disputes.

But so that the Buyer can sleep peacefully, having made sure that there are no even theoretical grounds for challenging the donation transaction, he can contact (or better yet, meet in person) the Donor , and make sure that he does not have anything to do with the Donee (i.e. our Seller) no complaints. And at the same time, make sure of the adequacy (capacity) of the Donor , which is easy to do by simply chatting with him a little about life. After all, as incompetent only due to his obvious mental disorder, and such a condition is visible to the naked eye.

Preliminary agreement for the purchase and sale of an apartment - 3 types, nuances, legal consequences. See the Glossary at the link.

One more point that we need to check before purchasing an apartment received by our Seller as a gift.

If the Donor and the Donee are not close relatives, then it is necessary to find out whether the Seller paid tax (13% personal income tax) on income received as a gift ?

If he has paid, he must present a certificate from the local tax office (at the address of the apartment).

If the Seller claims that he does not have to pay tax, then it is necessary to present documents confirming his close relationship with the Donor (birth certificate, marriage certificate, court decision on adoption, etc.), which really exempts him from paying income tax tax on donated property .

How does this affect the Buyer? After all, the unpaid tax (if any) will remain “hanging” on the Seller as the responsibility of the taxpayer? It's like that. But when registering our transaction for the purchase and sale of an apartment with him, problems may arise. After all, Rosreestr has the right to request all the information it needs about the property based on interdepartmental requests, and if the registrar discovers that personal income tax has not been paid for the apartment being sold, then the registration may be suspended.

How to conduct an apartment purchase and sale transaction correctly? And do you need a realtor for this - look in this article.

Separately, mention should be made of the case when the Donor is a legal entity or individual entrepreneur .

If, under the threat of bankruptcy, a legal entity “merges its assets” into private hands, incl. by donation , then, at the request of interested parties (“third parties”), the court may invalidate a gift transaction This is expressly stated in the law.

Therefore, if we find any LLC or individual entrepreneur in the Gift Agreement , then it is necessary to find out the current state of this enterprise to make sure that it was a legal transaction and not a “drain of assets” before bankruptcy.

In this matter, we would benefit from additional legal advice.

How to properly arrange the purchase of an apartment along with furniture - see this article.

Thus, if the basis for obtaining the Seller’s ownership of the apartment is the Donation Agreement , and the Donor is an individual - a close relative of our Seller, then this is a good option for purchase, and we can breathe easy and move on to checking the following documents.

In the secondary housing market, competent legal support is especially important for the Buyer. Analysis of the situation and examination of documents for the apartment and its owners - HERE.

To continue the steps of the INSTRUCTIONS, we go back to the previous section, and from there we move further down the steps.

Donors never pay tax

Remember, those who donate an apartment or a share in it are not required to pay tax. Donation is a gratuitous transaction (Clause 1, Article 572 of the Civil Code of the Russian Federation). The donor transfers his apartment to the recipient just like that, without demanding anything in return. Therefore, the donor does not receive any income. And since there is no income, there is no tax.

IT DOES NOT MATTER: 1) How long the apartment belongs to the donor. Don't confuse this with selling. There is no minimum holding period for donations. To donate real estate, you don’t have to wait 3 or 5 years - read more. 2) To whom did the donor give the apartment - a close relative or a stranger. 3) Whether the donor is a citizen of the Russian Federation or another country and where he lives. The donor pays nothing. Dot.

Only donees pay tax

The donees are those to whom the property was given as a gift. No one is exempt from paying or reducing the tax - neither a pensioner, nor a disabled person, nor an orphan. There are no benefits.

For minors, the tax is paid by their parents (guardian/trustee) - clause 2 of Art. 27 of the Tax Code of the Russian Federation and clause 1 of Art. 28 Civil Code of the Russian Federation.

In what cases are recipients not required to pay tax?

As I wrote above, recipients are not required to pay tax if they were given an apartment by close relatives - clause 18.1 of Art. 217 Tax Code of the Russian Federation. And it makes no difference whether the donee lives in the Russian Federation, what citizenship he has, whether he is a resident or not - clarification from the Federal Tax Service. If you received an apartment as a gift from a close relative, you never pay tax.

Show examples ↓ Example No. 1: Spouses Andrei and Marina gave an apartment to their children - son Andrei and daughter Oksana. 1/2 share each. Nobody has to pay tax.

If the donee is exempt from paying tax (when receiving a gift from a close relative), he does not need to submit an income statement to the tax office - clause 4 of Art. 229 Tax Code of the Russian Federation. But after the transaction, the tax inspectorate will still require the donee to provide them with a copy of the gift agreement and documents on relationship with the donor. Because Rosreestr will only report information about the new owner to the tax office - clause 4 of Art. 85 of the Tax Code of the Russian Federation and Order of the Federal Tax Service dated April 10, 2017 N ММВ-7-21/ [email protected]

If the gift agreement was drawn up by a notary, he himself is obliged to submit the agreement and documents on relationship to the tax office within 5 days - clause 6 of Art. 85 Tax Code of the Russian Federation.

When do you need to pay gift tax?

In general, gifts are recognized as income in kind and if the income is not clearly exempt from taxation (we described these cases above), then you must declare it and pay tax (Clause 1, Article 210 of the Tax Code of the Russian Federation, Article 41 of the Tax Code of the Russian Federation).

If a person who is not on the list of close relatives has given you real estate, transport, shares or a share in an organization, then you are required to submit a declaration to the tax authority in Form 3-NDFL and pay a tax in the amount of 13% of the value of the gift (clause 1 of Art. 210 of the Tax Code of the Russian Federation, Letter of the Ministry of Finance of Russia dated 05.08.2014 No. 03-04-05/38547).

Example: In 2021, a friend gave Bochkova T.M. a car worth 300 thousand rubles. Since gifts from friends are not exempt from tax, Bochkova T.M. by April 30, 2021, must submit a 3-NDFL declaration to the tax office and, by July 15, 2021, pay a tax in the amount of 13% of the value of the gift (300,000 x 13% = 39 thousand rubles).

Example: In 2021, a nephew gave Slavin D.B. an apartment worth 2 million rubles. According to clause 18.1 of Art. 217 of the Tax Code of the Russian Federation, the nephew is not a close relative, therefore Slavin D.B. by April 30, 2021, must submit a 3-NDFL declaration to the tax office and, by July 15, 2021, pay a tax in the amount of 13% of the value of the gift (2,000,000 x 13% = 260 thousand rubles).

Also, a 13% tax must be withheld from a gift if it is received from an organization (the gift can be in any form, even monetary), and its value exceeds 4,000 rubles. We will not dwell on this in detail, since in most cases the organization itself withholds tax on the gift and reports to the tax authority. That is, you do not have the obligation to pay tax and file a declaration.

Tax rate and how much to pay

Let me remind you that there is no separate gift tax. When a citizen was given an apartment as a gift, he received income in the form of its value. Personal income tax should be paid on this income.

The personal income tax rate for residents of the Russian Federation is 13% - clause 1.1 of Art. 224 Tax Code of the Russian Federation. These are those who have been in Russia for at least 183 days over the past 12 months - clause 2 of Art. 207 of the Tax Code of the Russian Federation. If less, the citizen is considered a non-resident. Personal income tax for non-residents is 30% - clause 3 of Art. 224 Tax Code of the Russian Federation. The presence or absence of Russian citizenship does not play any role here. The main thing is the number of days of residence in the country.

The donee pays personal income tax on the cadastral value of the apartment or share given to him - clause 6 of Art. 214.10 Tax Code of the Russian Federation. The cost as of January 1 of the year in which the contract was registered is applied.

Show calculation examples ↓ Example No. 1: Olga gave an apartment to her nephew, who is a resident of the Russian Federation. The cadastral value of the apartment is 3,500,000 rubles. The nephew must pay 13% * 3,500,000 = 455,000 rubles in tax.

Example No. 2. Alexander gave the apartment to his mother-in-law and father-in-law. Each has 1/2 share in the right. They are both residents of the Russian Federation. The cadastral value of the apartment is 4,600,000 rubles. Each recipient must pay 13% * (4,600,000 * 1/2) = 299,000 rubles.

How to pay tax

After registering the gift transaction, the donee (aka the new owner) must submit a 3-NDFL declaration and documents for the apartment by April 30 of the next year. And pay the tax by July 15th. Otherwise there will be fines and penalties.

For example, the recipient was given an apartment in 2021. He must submit the 3-NDFL declaration for 2021 by April 30, 2022 and pay the tax by July 15, 2022.

I remind you that for minor recipients the tax is paid by their parents (guardian/trustee) - clause 2 of Art. 27 of the Tax Code of the Russian Federation and clause 1 of Art. 28 Civil Code of the Russian Federation.

Now the instructions themselves:

The recipient must fill out a tax return on income and expenses (3-NDFL) for the year in which the apartment was donated.
On the official website of the Federal Tax Service there is a declaration form 3-NDFL. You can also install a program on your computer to fill out this declaration. In the income section of the declaration, you must independently indicate the cadastral value of the donated apartment.
Then the donee must visit the tax office at your place of registration - clause 3 of Art. 228, paragraph 2 of Art. 229, paragraph 1, art. 83 and Art. 11 of the Tax Code of the Russian Federation. And submit the following documents:
Your Russian passport;
A document confirming ownership of the apartment. Since 2017, this document has been an extract from the Unified State Register of Real Estate. Certificates of registration of rights have been canceled and will not be issued since July 2021. How to obtain an extract from the Unified State Register for an apartment;
Donation agreement;
The act of acceptance and transfer of the apartment. If there is none, a gift agreement is sufficient;
If you decide to pay tax on the market value, a valuation report as of the date of donation.
The recipient will be given a receipt for payment . The tax must be paid by July 15.
Pay the receipt with the tax amount at any bank branch.

If the donee has problems with money and cannot pay the tax on time, it is possible to apply for a deferment or installment payment - Art. 64 Tax Code of the Russian Federation. The decision to provide such a benefit will be at the discretion of the tax office.

How to determine the value of a gift and the amount of tax?

If the value of the gift is determined in the contract, it is used as the amount of income.

Example: In 2021 Dmitrov F.M. I received an apartment from my uncle under a gift agreement. At the same time, the gift agreement indicates the price of the apartment in the amount of 1.5 million rubles. At the end of 2021 (until April 30, 2021) Dmitrov F.M. must submit a 3-NDFL declaration to the tax authority, which will indicate income from the gift in the amount of 1.5 million rubles. Also, until July 15, 2021, Dmitrov will have to pay income tax in the amount of: 1,500,000 x 13% = 195,000 rubles.

If the value in the contract is too low, tax inspectors will be able to demand payment of personal income tax based on the market value of the property. This position is supported by letters from the Russian Ministry of Finance, which indicate that in relation to the gift of real estate between persons who are not close relatives, for tax purposes, the amount of income can be taken from the agreement only if it corresponds to the market value of the real estate (Letters of the Russian Ministry of Finance dated October 15, 2015 No. 03-04-05/59154, dated 05/08/2014 No. 03-04-05/21903, dated 04/30/2014 No. 03-04-05/20685).

Example: An uncle gave his nephew S.M. Kislov a gift. an apartment in the center of Moscow, indicating the cost of the apartment in the donation agreement is 100 thousand rubles. If Kislov S.M. submits a declaration indicating an income of 100 thousand rubles, then the tax inspectorate will most likely challenge the amount of income and ask to pay a tax of 13% of the market value of the apartment.

If the gift agreement does not indicate the value of the gift, the amount of income is determined by the market value of the gift received.

When determining the cost of housing, the tax office often requires that it be based on the cadastral value. Since the tax legislation does not define the procedure for determining the market value, and you, for example, do not agree with the cadastral value, you can declare a different amount for calculation, insisting that it is the market value of your home. However, in this case, be prepared to defend your position before the tax authorities.

You can find out the cadastral value of housing in the cadastral passport of the property, as well as by contacting Rosreestr or the Federal Service of Cadastre and Cartography (Cadastral Chamber).

Example: In 2021 Golubeva D.K. I received a room from my mother-in-law under a gift agreement. Since the mother-in-law, according to the Tax Code of the Russian Federation, is not a close relative, Golubeva D.K. must pay income tax in the amount of 13% of the cost of the room. By contacting Rosreestr Golubeva D.K. I found out the cadastral value of the room (350 thousand rubles). At the end of 2021 (until April 30, 2021) Golubeva D.K. must submit a declaration to the tax authority indicating her income from the gift of 350 thousand rubles. Pay income tax in the amount of 45,500 rubles. (RUB 350,000 x 13%) she will have until July 15, 2021.