Movable and immovable property in accounting

The economic activities of organizations are based on the use of property owned by it, which is reflected in accounting. From January 1, 2019, the movable property of an organization, according to amendments to the Tax Code of the Russian Federation (Article 374-1), is not subject to property tax, and since accounting data is the basis for calculating NU indicators, the criteria defining movable and immovable property acquire special significance. Postings for property accounting, forming the main balance sheet indicators, are also one of the most important in accounting.

How can an organization distinguish movable property from immovable property ?

Definition of the concept of “real estate” (real estate)

According to Article 130 of the Civil Code of the Russian Federation, all things are divided into immovable and movable.

Analyzing the definition regulated in Article 130 of the Civil Code of the Russian Federation, the legislator identifies the concepts of “immovable things”, “real estate”, “real estate”.

A thing is immovable either by virtue of its natural properties (paragraph 1, paragraph 1, article 130 of the Civil Code of the Russian Federation), or by virtue of a direct indication of the law that such an object is subject to the regime of immovable things (paragraph 2, paragraph 1, article 130 of the Civil Code of the Russian Federation) (see for more details paragraphs 38 - 39 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 23, 2015 N 25 “On the application by courts of certain provisions of Section I, Part One of the Civil Code of the Russian Federation”).

On the issue of the identity of the concepts “capital construction object” and “real estate object”, see the article “Capital construction object”.

Dictionaries contain the following definitions of the concept “real estate” (real estate):

• Real estate is property, the use of which for its intended purpose and without prejudice to its characteristics and value properties, excludes its movement: buildings, structures, land plots and other property attached to the land and associated with it (Finam Financial Dictionary).
• Real estate - according to the civil legislation of the Russian Federation - land plots, subsoil plots, isolated water bodies and everything that is firmly connected to the land, i.e. objects whose movement without disproportionate damage to their purpose is impossible, including forests, perennial plantings, buildings, structures... (Legal Encyclopedia. 2015).
• Real estate - land, natural land, other property attached to the land, firmly connected with it: buildings, structures, objects owned by legal entities or individuals (Dictionary of business terms. Akademik.ru. 2001).

All real estate objects can be divided into three groups :

• 1) real estate objects that are immovable by nature (land, subsoil, etc.);
• 2) objects that are firmly connected to the ground and their movement entails disproportionate damage to their purpose (buildings, structures, etc.);
• 3) objects that, by their physical nature, are movable, but the legislator classified them as real estate (ships, aircraft, etc.).

Property features

The following main features are characteristic of real estate:

1. the presence of a strong connection with the earth;
2. impossibility of moving an object without causing disproportionate damage to the purpose of the object;
3. creation of real estate in the manner prescribed by law, in compliance with urban planning and other norms and rules.

1. Having a strong connection with the earth . A strong structural connection with the land plot means the connection of the building with building structures to the land plot. This is a fundamental feature of real estate. However, the criteria for a strong connection with the land are not established by law, which, however, is not the basis for registering ownership in the Unified State Register of Real Estate, for example, for a fence installed on a foundation buried in the ground, since a fence, unlike, for example, a building, does not have an independent for economic purposes.

The sign “strong connection with the ground” allows one to distinguish immovable objects from non-permanent buildings (structures). The latter are characterized by the absence of a strong connection with the ground, and the design characteristics allow the object to be moved or dismantled and its subsequent assembly without disproportionate damage to the purpose and without changing the main characteristics of buildings and structures (Clause 10.2 of Article 1 of the Civil Code of the Russian Federation).

A strong connection with the earth involves:

• presence of foundation . A foundation is a structural element that provides a strong connection to the ground, and only when it actually serves that purpose. So, a buried foundation is a sign of a real estate property. A shallow foundation does not allow the building to be considered real estate.
• strong connection between the structure and its foundation . This connection eliminates the possibility of easily disconnecting the structure from the foundation.

The lack of communications (connected sewerage systems, heat and water supply) is not an obstacle to the recognition of an object as real estate, if the object is firmly connected to the ground (for example, there is a concrete foundation, brick walls and partitions).

Separation of both air, sea and river vessels, and premises along with parking spaces into separate paragraphs of clause 1 of Art. 130 of the Civil Code of the Russian Federation excludes the application to them of such a sign as a strong connection with the land . This is directly indicated by paragraph 38 of Resolution No. 25, which explains that natural properties are a criterion for classifying only buildings, structures and unfinished construction projects as real estate (paragraph 1, paragraph 1, article 130 of the Civil Code of the Russian Federation), and all other objects are classified as real estate by virtue of the direct indication of the law, and therefore there is no need to look for their strong connection with the earth.

2. The impossibility of moving an object without causing disproportionate damage to the purpose of the object is evaluative and logically related to the previous one. When determining whether a thing is immovable, it is necessary to establish whether significant damage to such a thing and its supporting structure would be caused if it were moved to another location.

3. Creation of real estate in the manner prescribed by law, in compliance with urban planning and other norms and rules . This feature of real estate is not directly indicated in the Civil Code of the Russian Federation, but its existence is dictated by civil, land and urban planning legislation.

A capital structure (building, structure), even if the first two signs are present, cannot always be recognized as real estate. We are talking about cases where the structure was erected with violations. In judicial practice about (Definition of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation dated December 22, 2015 in case No. 304-ES15-11476, A27-18141/2014).

Thus, a necessary condition for classifying an object as real estate as an object of civil rights is not only its constructive connection with the land, but also its legal connection - that it was created precisely as real estate . Otherwise, the structure will be an unauthorized construction (Article 222 of the Civil Code of the Russian Federation).

Types of real estate

Types of real estate objects for the purpose of entering information about them into the real estate cadastre are given in paragraph 1 of part 4 of article 8 of the Federal Law of July 13, 2015 N 218-FZ “On State Registration of Real Estate”:

• land plot;
• building;
• construction;
• premises;
• parking space;
• unfinished construction project;
• single real estate complex;
• enterprise as a property complex.

Land plot

A land plot is an object of ownership and other rights to land provided for by the Land Code of the Russian Federation, is an immovable thing that represents a part of the earth's surface and has characteristics that make it possible to define it as an individually defined thing (clause 3 of Article 6 of the Land Code of the Russian Federation).

Building

A building is a result of construction, which is a volumetric construction system having above-ground and (or) underground parts, including premises, engineering support networks and engineering support systems and intended for living and (or) activities of people, location of production, storage of products or keeping animals (clause 6 of part 2 of article 2 of the Federal Law of December 30, 2009 N 384-FZ “Technical Regulations on the Safety of Buildings and Structures”).

Construction

A structure is a result of construction, which is a volumetric, planar or linear building system, having ground, above-ground and (or) underground parts, consisting of load-bearing, and in some cases, enclosing building structures and intended for performing various types of production processes, storing products, temporary stay of people, movement of people and goods (clause 23, part 2, article 2 of the Federal Law of December 30, 2009 N 384-FZ “Technical Regulations on the Safety of Buildings and Structures”).

A structure can be a single object consisting of heterogeneous elements united by a common functional purpose, which serves to meet the needs of citizens generally not related to business activities (for example, stadiums).

Room

definition of the concept of premises in the Civil Code of the Russian Federation. In clause 14, part 2, art. 2 of the Federal Law of December 30, 2009 N 384-FZ “Technical Regulations on the Safety of Buildings and Structures” contains the following definition:

room - part of the volume of a building or structure that has a specific purpose and is limited by building structures.

residential and non-residential premises as independent objects of civil rights .

Residential premises are isolated premises that are real estate and are suitable for permanent residence of citizens (meets established sanitary and technical rules and regulations, and other legal requirements) (Part 2 of Article 15 of the Housing Code of the Russian Federation).

The legislation does not contain the concept of non-residential premises. At the same time, taking into account that a premises is a part of a building or structure that is limited by building structures and has a specific purpose, non-residential premises are any premises that are not residential, that is, not intended for permanent residence of citizens.

Non-residential premises in an apartment building - premises in an apartment building, indicated in the design or technical documentation for an apartment building or in the electronic passport of an apartment building, which is not a residential premises and is not included in the common property of the owners of premises in an apartment building... (paragraph 12 of paragraph 2 Rules for the provision of utility services to owners and users of premises in apartment buildings and residential buildings, approved by Decree of the Government of the Russian Federation of May 6, 2011 N 354).

Parking space

The definition of the concept of “ parking space ” is contained in both the Civil and Town Planning Codes.

Car space - parts of buildings or structures intended to accommodate vehicles, if the boundaries of such premises, parts of buildings or structures are described in the manner established by the legislation on state cadastral registration (clause 3, part 1, article 130 of the Civil Code of the Russian Federation).

A parking space is an individually defined part of a building or structure intended exclusively for placing a vehicle, which is not limited or partially limited by a building or other enclosing structure and the boundaries of which are described in the manner established by the legislation on state cadastral registration (clause 29 of article 1 of the Civil Code of the Russian Federation ).

Clause 6.2 of Article 24 of Federal Law N 218-FZ determines that the boundaries of a parking space are determined by the design documentation of a building, structure and are designated or secured by the person carrying out the construction or operation of the building, structure, or the holder of the right to a parking space, including by drawing markings on the surface of the floor or roof (with paint, using stickers or other means).

Unfinished construction project

An unfinished construction object is a newly created (at least partially constructed) individually defined real estate object, unfinished construction (on which work is suspended or in progress) and (or) not registered in the cadastral or other register and not registered in the prescribed manner (work has been stopped or the object is mothballed or actually in operation).

When resolving the issue of recognizing an object legally under construction as an immovable thing (an object of unfinished construction), it is necessary to establish that at least the foundation construction work or similar work on it has been fully completed (paragraph 5, paragraph 38 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 23, 2015 N 25 “On the application by courts of certain provisions of Section I, Part One of the Civil Code of the Russian Federation”).

Single real estate complex

A single real estate complex is a set of buildings, structures and other things united by a single purpose, inextricably linked physically or technologically, including linear objects (railroads, power lines, pipelines and other linear objects), or located on the same land plot, if in a single The state register of rights to real estate registered the right of ownership of the set of specified objects as a whole as one immovable thing (Article 133.1 of the Civil Code of the Russian Federation).

By virtue of the direct indication of Article 133.1 of the Civil Code of the Russian Federation, in the absence of the said registration, such a set of things is not a single real estate complex (clause 39 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 23, 2015 N 25 “On the application by courts of certain provisions of Section I, Part One of the Civil Code of the Russian Federation” ).

Enterprise as a property complex

An enterprise as an object of rights is recognized as a property complex used to carry out business activities. The enterprise as a whole, as a property complex, is recognized as real estate (Clause 1, Article 132 of the Civil Code of the Russian Federation).

The composition of an enterprise as a property complex includes all types of property intended for its activities, including land plots, buildings, structures, equipment, inventory, raw materials, products, rights of claim, debts, as well as rights to designations that individualize the enterprise, its products, and work and services (commercial designation, trademarks, service marks), and other exclusive rights, unless otherwise provided by law or agreement (clause 2 of article 132 of the Civil Code of the Russian Federation).

Explanations from the Ministry of Finance.

A comprehensive solution to the issue. Then representatives of the Ministry of Finance issued Letter No. 03-05-05-01/34065 dated April 27, 2020 , in which they identified a number of issues related to the legal status of real estate, including the need to establish clarity regarding the characteristics of real estate objects. It was noted that a comprehensive solution to these issues is provided for by draft federal laws developed and submitted by the Ministry of Economic Development to the Government of the Russian Federation on October 17, 2018, which plan amendments to both the Civil Code of the Russian Federation and other laws in terms of improving legislation on real estate. But at the time of preparation of this material, these amendments have not been adopted.

Financiers noted: clarification in the legislation of the concept of immovable things primarily pursues the goal of civil law classification of things and is aimed at establishing a special procedure for the emergence and transfer of rights to real estate as property that, as a rule, has significant value, as well as additional protection of the rights of the owner of this property .

At the same time, the bills do not change the approaches to the procedure for imposing property taxes on organizations. However, the fact that currently individual objects, due to insufficient clarity of legal norms, can be recognized as real estate, in fact, not being such, confirms the need for the amendments proposed by the bills, which will avoid inaccuracies, including those allowed when assessing property with the property tax of organizations.

The question of whether an object is real estate is currently being resolved based on the Civil Code of the Russian Federation and the regulatory legal acts adopted in accordance with it, as well as taking into account the Civil Code of the Russian Federation at the stage of developing project documentation and obtaining permits.

Construction permit. At the end of 2021, the Ministry of Finance will issue two letters ( dated 11/09/2020 No. 03-05-05-01/97143 , dated 12/09/2020 No. 03-05-05-01/107458 ) on the topic under consideration, which provide the following explanations.

According to Art. 1 of the Civil Code of the Russian Federation, a capital construction facility means a building, structure, structure, objects whose construction has not been completed, with the exception of non-capital buildings, structures and inseparable improvements to a land plot (paving, covering, etc.). To create capital construction projects, it is necessary to prepare design documentation, obtain permits for construction and for putting the facility into operation ( Articles 48 , 48.1 , 49 , 51 , 55 of the Civil Code of the Russian Federation ). In connection with the above, the question of whether an object is real estate is decided at the stage of developing project documentation and obtaining permits. Financiers refer to the existing judicial practice on this issue:

– Ruling of the Supreme Court of the Russian Federation dated December 22, 2015 No. A27-18141/2014 in case No. 304-ES15-11476;

– clause 38 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated June 23, 2015 No. 25;

– Review of judicial practice of the Supreme Court of the Russian Federation No. 1 (2016) , approved by the Presidium of the Supreme Court of the Russian Federation on April 13, 2016.

Following the destiny of the main thing. In addition, representatives of the Ministry of Finance focus on another important issue: they are trying to classify movable property (machinery and equipment, land vehicles, industrial and household equipment) as real estate. Their logic is as follows.

According to Art. 135 of the Civil Code of the Russian Federation , as a general rule, a thing intended to serve another, main thing and connected with it by a common purpose (accessory) follows the fate of the main thing.

According to Rosreestr ( Letter No. 11-9273-AB/20 dated October 20, 2020 ), equipment that is inextricably linked physically or technologically with a capital structure, building or land plot, from the moment of joining the relevant real estate becomes its integral part, and this equipment cannot be considered as an independent property. Article 2 of the Federal Law of December 30, 2009 No. 384-FZ “Technical Regulations on the Safety of Buildings and Structures” reveals the concepts of “building” and “structure”, including the definition of equipment inextricably linked with the building or structure.

It should be noted that regulatory authorities have held this position for a long time, which causes disagreements with taxpayers. Not everything is clear on this issue.

In practice, tax authorities, during on-site inspections, charge additional property tax, trying to make a judgment that the building and the equipment installed in it form a “single whole”, since these items have a common purpose. For example, in a case considered by the Judicial Collegium for Economic Disputes of the Armed Forces of the Russian Federation, the workshop building was originally designed for the installation of equipment purchased by the taxpayer, and the seizure of the objects installed in the building will lead to the cessation of use of both the building itself and the production of finished products ( Determination dated July 12, 2019 No. 307-ES19-5241, A05-879/2018 ). But the RF Armed Forces pointed out: the mere fact of installation of equipment in a building specially erected for its operation, including in a situation where subsequent dismantling and relocation of the equipment will require additional costs and partial liquidation of the building, does not mean that the purpose of the equipment is to serve the building.

The taxpayer was able to prove that the specified equipment is not intended for servicing buildings, but for the manufacture of finished products, and therefore it was legally classified as movable property for the purpose of imposing corporate property tax.

Movable things

Clause 2 of Article 130 of the Civil Code of the Russian Federation states that movable things include things that are not related to real estate, including money and securities. The law does not define the concept of “movable property”.

As a general rule, registration of rights to movable things is not required.

The different material and legal nature of movable and immovable property often determines the difference in the procedure for acquiring, realizing and protecting rights to such property. about the differences between movable and immovable property in legal regulation in the article “Movable property. Concept, examples. Differences between movable property and immovable property.

Canceled letter from the Federal Tax Service.

The laconicism of the legislative wording does not add clarity to the issue of separating real estate from movable property, which raises questions for taxpayers. And regulatory authorities are trying to answer them. Thus, in February 2021, the Federal Tax Service sent its employees administering the taxation of property of organizations Letter No. BS-4-21/ [email protected] , in which it gave recommendations on the distinction between movable and immovable property for tax purposes. These recommendations were based on Letter No. D23i-4183 of the Ministry of Economic Development of Russia dated February 12, 2020. But not even 10 days had passed since the letter was withdrawn ( Letter of the Federal Tax Service of Russia dated February 25, 2020 No. BS-4-21/ [email protected] ).

The practice of recognizing buildings and structures as real estate by courts

For example, the courts recognized the following buildings and structures as real estate objects:

production site for trucks , which has a sand bed, crushed stone preparation and a layer of concrete 20 centimeters thick. This structure is recognized as a real estate object (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 16, 2008 N 9626/08 in case N A08-7744/06-5);

stationary retail and warehouse facilities such as buildings (parts of a building) and structures meet the characteristics of real estate, the rights to which, their origin and termination are subject to state registration in the Unified State Register of Real Estate (Definition of the Supreme Court of the Russian Federation dated 06/09/2010 N 8-G10-7);

stationary industrial refrigerator . The court came to the conclusion that the nature of the work on tying the foundation to the terrain, manufacturing the foundation of the refrigerator and installing the refrigerator indicate the construction of a structure related to real estate firmly connected to the ground. There is no evidence that moving the refrigerator will not be associated with disproportionate damage to the use of the refrigerator for its intended purpose (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of October 12, 1999 N 2061/99 in case N A72-2212/98-Kd136/1);

storage tanks with sewer pipes . They are engineering structures, located underground and firmly connected to it, their movement without disproportionate damage to their purpose is impossible (Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated April 19, 2016 N 74-KG16-1);

stadium is a single sports facility consisting of a land plot, equipped in a special way and intended for sports games (football field and mini-football field), as well as auxiliary real estate (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated May 28, 2013 N 17085/12 on the case N A32-29673/2011);

stadium is a single sports facility, firmly connected to the ground and incorporating auxiliary real estate objects. The administrative building of the stadium, locker room, toilet and water booth cannot be used for the purposes of physical education and sports in isolation from the sports facilities and grounds themselves (city and athletics grounds, football and hockey fields, running track and jumping pits) (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 10.20.2010 N 6200/10 in case N A56-50083/2008);

interschool stadium (universal sports ground with artificial turf). In addition to the asphalt concrete surface, a sports facility also consists of other objects (tribunes, external lighting networks, sewerage and water supply, fencing), united by a common functional purpose, the totality of which represents a single object, that is, a sports facility firmly connected to the ground. Such a structure is subject to state cadastral registration as a real estate object (Resolution of the Arbitration Court of the Ural District dated September 1, 2017 N F09-5399/17 in case N A50-27178/2016).

Judicial practice of refusals to recognize objects as real estate

Courts do not recognize the following objects as real estate:

platform covered with concrete . Laying a certain covering (of concrete, asphalt, crushed stone) on a land plot, including for passage or travel, parking, does not create a new property, but represents an improvement in the useful properties of the land plot (has an auxiliary function in relation to the purpose of the land site) and is only an element of improvement of this site (Resolution of the Arbitration Court of the Volga-Vyatka District of December 19, 2018 N F01-5740/2018 in case N A43-47512/2017). We recommend publications on the topic: “Is asphalt pavement a real estate property? Arbitrage practice"; “Is a concrete pad a piece of real estate? Arbitrage practice".

the parking lot does not have an independent functional purpose, but only improves the useful properties of the land plot on which it is located and is an integral part of it. Asphalt paving is a common improvement of a land plot (Resolution of the Arbitration Court of the Volga District of February 28, 2019 N F06-43775/2019 in case N A12-17548/2018);

a fence located along the perimeter of the site cannot be classified as real estate (Definition of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation dated 02/01/2018 in case No. 305-ES17-13675, A41-103283/2015);

the fence does not have the characteristics of a real estate property, since it does not have an independent economic purpose and performs the servicing function of the main thing - a land plot or is an improvement of the latter (Resolution of the Arbitration Court of the Volga-Vyatka District of May 30, 2018 N F01-1757/2018 in case N A43-28525 /2017);

the fence does not have an independent economic purpose, is not a separate object of civil circulation, performing only a service function in relation to the corresponding land plot and the buildings located on it (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 24, 2013 N 1160/13 in case N A76-1598/2012 );

the fence is not an independent piece of real estate, regardless of its physical characteristics and the presence of individual elements that ensure a strong connection of this structure with the corresponding land plot (Resolution of the Arbitration Court of the Volga District dated May 29, 2018 N F06-31904/2018 in case N A57-14689/2017 );

a power transmission tower (reinforced concrete pole) as an integral part of a single real estate complex is not an independent real estate object (Definition of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated July 19, 2016 N 18-КГ16-61);

an advertising structure is always installed for a certain period and, within the meaning of the Law on Advertising, is a movable thing (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of July 15, 2014 N 5798/14 in case N A50-6337/2013);

advertising structures are a technical means for placing advertising and movable things, obviously installed for a certain period of time and dismantled (Resolution of the Arbitration Court of the Volga District of July 25, 2016 N F06-10713/2016 in case N A12-50935/2015);

mini-football field and football field are improvements to a plot of land that consist of adapting it to meet the needs of persons using the plot. The named structures are not independent immovable things, but represent an integral part of the land plot on which they are located (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of May 28, 2013 N 17085/12 in case N A32-29673/2011);

a multifunctional sports ground , consisting of a rubber coating, with reinforced concrete bases, represents an improvement of the land plot on which they are located and are not independent objects of real estate and separate objects of civil circulation, they perform a service function in relation to the corresponding land plot (Resolution of the Arbitration Court of the North Caucasian District dated 08/07/2019 N F08-6212/2019 in case N A32-42855/2018);

guest parking, a tennis court, a basketball court, by their characteristics, are actually not independent real estate objects (Resolution of the Arbitration Court of the North Caucasus District dated 02/08/2017 N F08-10355/2016 in case N A53-8645/2016);

sheds, garages, wells and other various types of auxiliary buildings and structures in a household intended for servicing a residential building, including capital ones, based on the provisions of Articles 130, 131, 135 of the Civil Code of the Russian Federation, are not independent objects of real estate (Resolution of the Arbitration Court of the Moscow District dated 09/07/2017 N F05-12334/2017 in case N A40-139810/2016);

engineered rice system . The courts proceeded from the fact that the use of an engineered rice system in isolation from rice production is impossible; the system is designed to improve the surface layer of the soil and has no other economic purpose. In the case where an object was created solely for the purpose of improving the quality and maintenance of a land plot and does not have an independent functional purpose, it is an integral part of the land plot and cannot be recognized as a real estate object, the rights to which are subject to state registration (clause 6 of the Review of Judicial Practice Supreme Court of the Russian Federation No. 2 (2016)", approved by the Presidium of the Supreme Court of the Russian Federation on July 6, 2016);

hydraulic structures , consisting of open conductive channels (ditches lined with reinforced concrete trays) and a closed drainage network consisting of asbestos-cement pipes of various diameters, laid at a depth of 0.9 meters, were created for the purpose of draining agricultural land (the structures are firmly connected to the ground, their relocation without disproportionate damage to the destination is impossible). At the same time, the disputed objects do not have an independent functional purpose, they were created solely for the purpose of improving the quality of land and serve only the land plot on which they are located, therefore they are an integral part of it and must follow the fate of this land plot (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 17.01. 2012 N 4777/08 in case N A56-31923/2006).

State registration of ownership and other proprietary rights to real estate

The need to register such rights (their occurrence) is indicated in paragraph 1 of Art. 131 Civil Code of the Russian Federation, part 3, 6 art. 1 of the Law on State Registration of Real Estate.

In addition to the right of ownership, in particular, the following real rights must be registered (clause 1 of Article 216 of the Civil Code of the Russian Federation):

• economic management;
• operational management;
• permanent (indefinite) use of a land plot;
• easement (also registered as a restriction, encumbrance).

Table

Is an object considered real estate if it is not registered in the Unified State Register of Real Estate?

An object can be considered real estate, even if it is not registered in the Unified State Register as real estate. The Supreme Court of the Russian Federation pointed out:

“Within the meaning of Article 131 of the Civil Code of the Russian Federation, in order to ensure the stability of civil circulation, the law establishes the need for state registration of ownership and other real rights to immovable things, restrictions on these rights, their emergence, transfer and termination. Moreover, as a general rule, state registration of the right to a thing is not a prerequisite for recognizing it as an object of real estate (clause 1 of Article 130 of the Civil Code of the Russian Federation)" (clause 38 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of June 23, 2015 N 25 "On the application by the courts of certain provisions of the section I of part one of the Civil Code of the Russian Federation").

At the same time, registration of the right to an object in the Unified State Register of Real Estate is also not an unconditional guarantee that the object is real estate. If the registered object does not have the signs of real estate specified in Art. 130 of the Civil Code of the Russian Federation or violations of the law were committed during the construction of the object, the owner of the land will be able to challenge the ownership of such an object, have the record of rights to it excluded from the Unified State Register of Real Estate, and then have it demolished. There are also clarifications on this matter from the Supreme Court of the Russian Federation:

In cases where the ownership of movable property is registered as real estate, challenging the registered right or encumbrance can be carried out by filing a claim to recognize the right or encumbrance as absent (clause 52 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 10, Plenum of the Supreme Arbitration Court of the Russian Federation No. 22 dated 04/29/2010 “On some issues arising in judicial practice when resolving disputes related to the protection of property rights and other property rights”).

* * *

Today, clear criteria for a real estate property are not established by current legislation. Neither representatives of the Ministry of Finance and the Federal Tax Service, nor representatives of other interested departments can formulate them unambiguously. Even the courts differ in their opinions on recognizing an object as immovable, while the courts note that the state registration of an object in itself does not determine the status of an object as immovable, since this requires the presence of certain characteristics. Recognition of an object as immovable as an object of civil rights on the sole basis that it is firmly connected to the land and a technical passport has been issued for it is impossible. From the latest clarifications of the Ministry of Finance it follows that in order to create real estate objects it is necessary to prepare project documentation, obtain construction permits and to put the object into operation. And the issue of the status of the object is decided at the stage of developing project documentation and obtaining permits.

Pharmacy: accounting and taxation, No. 2, 2021