Property deduction when purchasing an apartment in common shared ownership in 2021

When purchasing housing in common shared ownership by several persons, questions naturally arise: who has the right to receive a property deduction? in what size? Is it possible to transfer the right to deduction to another owner?

Below we will answer these questions, and also consider other features of obtaining a deduction when purchasing an apartment/house in common shared ownership.

If you have purchased a home in common ownership with your spouse or children, we recommend that you read our specialized articles:

Obtaining a property deduction for minor children;
Features of obtaining a property deduction by spouses;

The rules that govern the procedure for receiving the deduction and its size depend on when the housing was purchased - before or after January 1, 2014. Since January 1, 2014, significant changes have been made to the Tax Code related to obtaining a property deduction.

In this article we will consider situations where housing was purchased as common shared ownership AFTER January 1, 2014 . If you purchased housing before January 1, 2014, then read the article “Receiving a deduction when purchasing an apartment in common shared ownership before January 1, 2014.”

Note: The date of purchase of housing should be considered the date of state registration of property rights according to an extract from the Unified State Register of Real Estate when purchasing under a purchase and sale agreement or the date of the transfer deed when purchasing housing under an agreement of shared participation in construction.

Receiving the main property deduction

When purchasing housing after January 1, 2014, the limit on the total deduction for all owners of 2 million rubles no longer applies. That is, since 2014, the restriction on property deduction applies not to the housing object, but to the person.

At the same time, the general procedure for providing a deduction for shared ownership remains the same and is based on the expenses/share of each person (Letters of the Ministry of Finance of Russia dated December 11, 2014 No. 03-04-05/63812, dated October 28, 2013 No. 03-04-05/45699) .

When purchasing housing in common shared ownership after January 1, 2014, each owner has the right to receive a deduction in the amount of his expenses, but not more than 2 million rubles. If the agreement/payment documents indicate only the total amount of expenses, then in the amount of TOTAL AMOUNT OF EXPENSES x ITS SHARE.

Example: Medvedev B.G. and his grandmother Medvedeva N.N. in 2021, we purchased an apartment worth 3 million rubles as common shared ownership. In this case, the share of each owner was 1/2. In this case, Medvedev B.G. and Medvedev N.N. will be entitled to a deduction of RUB 3 million. x 1/2 = 1.5 million rubles. (195 thousand rubles to be returned).

Example: In 2021, the Zaitsev brothers A.R. and Zaitsev S.R. purchased an apartment worth 5 million rubles as common shared ownership (the brothers' shares were 1/2 each). In this case, each brother will be able to receive a deduction in the amount of 2 million rubles (the maximum amount of deduction) and return 260 thousand rubles.

How to distribute the mortgage interest deduction

In addition to the main deduction, you can receive a deduction for credit interest. If an apartment is purchased with a mortgage and registered as common shared ownership, the owners can receive a deduction in any proportions that they agree on.

And these proportions may not coincide with the owners’ shares of housing ownership. In this case, the owners must be co-borrowers on a mortgage loan from the bank. Let us remind you: the maximum amount of property tax deduction for interest is 3 million rubles.

Grounds: clause 4 of Art. 220 of the Tax Code of the Russian Federation, letter of the Federal Tax Service of the Russian Federation dated May 23, 2016 No. BS-3-11/2315.

Example:

In 2021, my aunt and niece bought a house as common property. The total cost of the house is 4 million rubles, of which 2 million were borrowed from the bank. In this case, the aunt and niece acted as co-borrowers. Each person was given half of the house.

The owners decided that the niece would receive the entire mortgage deduction. When submitting the 3-NDFL declaration to the tax office, they wrote a statement indicating their distribution of shares for the mortgage interest: 0% for the aunt and 100% for the niece.

As a result, each of the owners received 2 million of the main deduction (260 thousand rubles were returned to their accounts), and the niece additionally received 13% of the interest actually paid to the bank.

VS figured out how to divide an apartment purchased before the wedding

Victor and Anna Gubkin* lived together for nine years and then decided to get married. On November 2, 2021, Viktor Gubkin bought an apartment under a purchase and sale agreement with Invest Plus LLC with payment over five years (its book value was 2.2 million rubles). On November 11, the Gubkins registered their marriage. And on November 21, ownership of the apartment was assigned to Gubkin in the Unified State Register of Real Estate. The couple lived together for another two years, after which they decided to divorce. The question arose about the division of property.

From love to divorce: who needs prenuptial agreements and why?

The stumbling block was the apartment. Victor Gubkin insisted that the property should not be considered joint property, because the agreement was signed before the marriage was registered. Anna Gubkina argued that the apartment should be divided as a joint property, since ownership was registered after the wedding. In addition, the Gubkins ran a joint household before they officially got married.

Anna Gubkina went to court. She demanded that 2/3 of the share be left for her, and 1/3 for her ex-husband, and the debt to Invest Plus LLC be recognized as common. The plaintiff proposed to deviate from the equality of shares, since her minor daughter remained with her.

What did the courts decide?

The Gagarinsky District Court of Sevastopol refused to satisfy the applicant’s demands. In the first instance, they explained that the deal to purchase the apartment was concluded before the marriage, so the housing would not be considered jointly acquired property and should not be divided between ex-spouses. At the same time, the court recalled that the cost of the apartment was paid from Gubkin’s personal funds (except for one payment of 20,000 rubles).

But the decision did not survive the appeal. On August 15, 2021, the Sevastopol City Court concluded that the apartment is the joint property of the spouses, so it must be divided equally. The appeal referred to the fact that the purchase and sale agreement for the apartment must be registered. It is considered concluded from the moment of state registration. Since registration occurs during the period of marriage, the apartment is the joint property of the spouses. The Fourth Court of Cassation of General Jurisdiction agreed with this opinion.

Viktor Gubkin appealed the court decisions to the Supreme Court. He insisted that the decision to divide the apartment was illegal and it could not be considered the joint property of the spouses. The Civil Disputes Collegium of the Supreme Court, having studied the details of the case, decided to cancel the contested acts of appeal and cassation.

The Supreme Court recalled that according to paragraph 1 of Art. 36 of the Family Code, property acquired before marriage is the property of each spouse. To recognize property as joint property, you must prove that it was purchased during marriage and with common money.

Family transactions in bankruptcy: do's and don'ts

In this case, such circumstances as the time and grounds for the emergence of ownership of property are legally significant. In the Gubkin dispute, the date of conclusion of the purchase and sale agreement is important, and this happened before the marriage. At the same time, the rule on state registration of transactions with real estate does not apply at all to contracts concluded after March 1, 2013, that is, the conclusion of the two authorities about the need for such registration is erroneous. “Registration of a right is not of a title-establishing, but of a title-confirming nature, therefore it is unreasonable to attach decisive importance to the date of the registration record of the transfer of ownership of the disputed property when determining the status of such property as acquired by spouses during marriage,” says the Supreme Court Determination No. 117-KG20-2 -K4.

The purchase and sale agreement for the disputed apartment was concluded before the marriage, so there was no reason to include the housing in the jointly acquired property, the Supreme Court pointed out. The fact that the personal debt of one of the spouses for the apartment was repaid during marriage does not make it joint property, is noted in the definition, especially taking into account the fact that the remaining payments occurred in the period after the divorce.

The Supreme Court panel consisting of Igor Yuryev, Boris Gorokhov, Tatyana Nazarenko upheld the decision of the first instance on the division of the apartment. The housing was left to Gubkin.

Expert opinions

“The Supreme Court once again emphasized that the criterion is not only its formal registration with the Federal Service for State Registration, Cadastre and Cartography (Rosreestr), but also the actual payment for residential premises,” says the head of the family and inheritance law practice of KIAP KIAP Federal Rating. group Arbitration proceedings (medium and small disputes - mid market) group Compliance group Corporate law/Mergers and acquisitions group (mid market) group International arbitration group Dispute resolution in courts of general jurisdiction group Labor and migration law (including disputes) group Antimonopoly law (including disputes ) group Bankruptcy (including disputes) (mid market) group Intellectual Property (Consulting) group Intellectual Property (Registration) group Family and Inheritance Law group TMT (telecommunications, media and technology) group Land Law/Commercial Real Estate/Construction group Intellectual Property (Protection rights and litigation) group Criminal law Company profile Yulia Yanygina. In her practice, there were cases when she had to prove that an apartment was purchased with “pre-marital” funds. It is very important here how the payment was made: “Such circumstances cannot be proven by testimony.”

“The court, unfortunately, did not directly answer whether the possible emergence of common property is affected by the fact that the personal debt to pay for the apartment was repaid partly from common funds,” notes Olesya Petrol, partner at Petrol Chilikov Petrol Chilikov Federal Rating. group International litigation group Family and inheritance law group Private capital group International arbitration group Arbitration proceedings (major disputes - high market). She drew attention to another significant aspect of the matter.

The Supreme Court quite rightly ignored the plaintiff’s argument that actual marital relations existed between the parties already before the marriage was registered, and it was during this period that the purchase and sale agreement was concluded. Marriage registration cannot create community of property retrospectively.

Olesya Petrol, partner at Petrol Chilikov

In order to further divide jointly acquired property in your own interests, it is necessary to correctly formalize the transfer of funds, warns Yulia Yanygina: “It is advisable to do this in a non-cash form.” And after the next determination of the Armed Forces, she hopes, it will become easier to classify this or that object as general or personal property.

* – the names and surnames of the parties to the dispute have been changed.

Irina Kondratyeva

LEGAL WAYS HOW TO GET A TAX REFUND WHEN BUYING AN APARTMENT IF I DO NOT WORK

As a rule, only employees of certain organizations or private entrepreneurs, from whose wages state taxes are systematically levied, can reduce the amount of the tax base. However, in some cases, deductions may be provided to the unemployed. We propose to consider several examples that make it possible for unemployed persons to legally receive tax withholdings:

If they have certain amounts of money received as a result of the sale of movable or immovable property.
In the case of the existence of income that goes to the account of an unemployed person who is the owner of some property leased to him.
When a person receives additional cash payments, these can be bonuses for creative activity or pensions awarded in special cases.

In order to use the deduction service, personal income tax payments must be made on the above non-wage income.

Personal income tax when dividing property of spouses

If the apartment is divided after divorce, then the ex-husband and wife may have obligations to pay tax on the sale of housing. According to the law, they are no longer relatives, even though they have a common child. With an equal division of property, where everyone receives a 50% share, personal income tax is not paid, since no benefit arises.

If the apartment is divided after divorce, then the ex-husband and wife may have obligations to pay tax on the sale of housing

If, by agreement, the apartment remains with one spouse, then he is obliged to pay monetary compensation in the amount of 50% to the second. This amount is assessed as income, so personal income tax must be paid on it. In order not to pay it, all manipulations with jointly acquired property should be carried out before the official divorce.

The legislative framework

Before demanding any monetary compensation, we recommend that you familiarize yourself with a number of legislative acts. First of all, you need to pay attention to the third paragraph of Article 220 of the Tax Code of the Russian Federation, which states that the purchase of an apartment is included in the list of property transactions provided for by law for obtaining a tax deduction . Also in the second part of this article you can find information about some features that must be met in order for the tax base to decrease by a certain amount.

After which you can additionally turn for help to Article 218 of the current code, which describes in detail the types and amounts of tax deductions, as well as the category of citizens entitled to such deductions.

Article 171 provides detailed information about all possible characteristics and nuances of tax deduction discounts, and you can read the list of regulations regarding the procedure for their application in Article 172 of the Tax Code.

If you have questions regarding the size of the tax base, read paragraph 3 of Article 210. To clarify any other information on the topic of tax deductions, there are 219, 221 and 222 articles.

Features of receiving a personal income tax refund for unemployed people

All these rules also apply to the temporarily unemployed. To understand how they can get their taxes paid back, you need to pay attention to 2 points:

The right to receive a property deduction arises from the year in which the ownership of the acquired housing was registered, i.e. It is not the date of purchase that is recorded, but the registration of ownership of the property. When purchasing under an equity participation agreement, this is the signing of an acceptance certificate; when building a house on a purchased plot, this is after registering the house. You can exercise your right to a refund at any time. The law does not establish term limits.
But there are temporary restrictions on personal income tax returns. Compensation is possible only 3 years before filing the declaration. For pensioners and the unemployed - 3 years before retirement or leaving work. The money overpaid to the budget can only be returned for the time when the person was officially employed.

Based on this, an unemployed person needs to choose the right time to submit an application for a deduction:

The employment relationship was interrupted for less than a year. The taxpayer submits the return as usual and gets a chance to get the funds back.
When a citizen eventually gets a job officially and is able to make contributions to the tax treasury, he can submit applications for reimbursement. Or you won’t have to pay personal income tax under the terms of the offset until the limit is completely exhausted. During this time, you can even sell your home, the right to deduction will remain.

Sberbank service for tax refunds

In order to simplify the procedure for reimbursement of paid tax payments, the bank, together with its partner, launched a special service.

Groups of expenses for which it is possible to return the money paid

With its help, you can return annual expenses associated with:

Purchasing any real estate (apartment, house, plot, cottage), including mortgage. The maximum amount of compensation is 650 thousand rubles.
Trading activities and receiving investment income from trading securities (maximum 1 million rubles).
Opening an investment account, conducting transactions using an individual investment account (maximum 52 thousand rubles)

In addition, clients of a banking institution can return 15.6 thousand rubles. behind:

insurance services;
in connection with treatment, receipt of medical services and purchase of medications;
teaching children at school, on educational courses, and also for paying for kindergarten.

Two tariff options to choose from: optimal and maximum.
To use the online service, you need to choose a service tariff:

“Optimal” (RUB 1,499). The tariff includes the service of a personal consultant, connection to a special mobile application “Return Tax” and preparation of a declaration online.
“Maximum” (RUB 2,999). In addition to these services, the tariff additionally includes courier services for delivering the declaration to the Federal Tax Service).

The procedure for registering a tax deduction on the service is as follows:

The client submits an application on the website. A personal consultant contacts the user and helps him choose the desired tariff and calculates the amount of deduction.
The user installs the “Tax Refund” application on his phone. Then you need to take a photo of the necessary documents, upload them to the application and send.
After this, the consultant, taking into account the provided documents, fills out a declaration to the Federal Tax Service.

Three simple steps to return paid tax payments
If the user purchased the “Optimal” tariff, then he will need to submit a completed declaration himself, sending it through his personal account to the Federal Tax Service or by personally contacting the tax service. For clients with the “Maximum” tariff, this function will be performed by bank employees.

IS AN UNEMPLOYED PERSON ALLOWED A TAX DEDUCTION WHEN BUYING AN APARTMENT?

It should be noted that not all non-working persons can be provided with a tax deduction. To obtain it, a number of the following conditions must be met:

So that a currently unemployed person who decides to purchase housing previously pays taxes on personal income to the state, and the amount of these payments is equal to at least 13 percent of the purchase of an apartment.
So that the cost of the new property does not exceed a certain limit amount established by the state for this type of deduction, namely an amount equal to 2,000,000 rubles.
So that real estate, if it is taken as collateral, has a loan amount of no more than 4,000,000 rubles.
So that real estate is not purchased from close relatives, as well as from other persons from whom the unemployed person receives certain cash payments.

There are also some restrictions from the current legislation of the Russian Federation, which serve as some kind of prohibitions for receiving a deduction. If the following factors are present, it is impossible to obtain a tax discount: If an individual has previously used the service of returning funds previously paid to him through personal income tax, then this procedure is not possible again. The deduction can only be received once. If the individual has not previously worked anywhere, and also did not have official sources of income, and is not the owner of the apartment. If a person who is not officially employed, but has some money from other sources, is an unscrupulous taxpayer or evades paying taxes altogether.

Ex-husband received personal income tax refund for real estate - how to take half

After a divorce, both spouses have the right to claim a tax deduction for an apartment or other housing purchased during marriage. With the official consent of the wife, the husband can receive the entire amount alone. If there is no such approval, but the ex-spouse received the payment in full, then the only solution is to appeal the actions of the inspector. It is necessary to file a complaint with the tax authority, describing its essence in detail.

A claim is sent to the ex-husband for the return of the share due to the second spouse. If the demands are not satisfied, then you will have to file a statement of claim in court demanding the return of funds obtained illegally. Supporting documents must be attached, as well as divorce certificates and real estate titles. Divorce does not affect the ability to receive your share of the tax deduction.

RECEIVING A DEDUCTION FOR NON-WORKING THROUGH AN EMPLOYER

In cases where a non-working person is filing a deduction with the help of a former employer, then you need to follow the same instructions as when filing independently. However, a certain part of the actions specified in the instructions will be assigned to the shoulders of the employer, which may make it somewhat easier, but significantly increase the duration of this process. A person who previously provided work to an individual who is claiming compensation for some kind of compensation will independently issue a 2-NDFL certificate. The employer is also obliged to provide all the required documents indicating the amount of amounts paid by him from the wages of the former employee, which were transferred to the tax authorities. Obtaining a tax deduction is a broad topic with many nuances. In different cases, the process of returning personal income tax differs, in accordance with the laws and loopholes in them.

Thus, when reading the article, it becomes clear that even non-working persons can receive a tax deduction if they purchase an apartment. However, for this it is necessary that a whole list of conditions be met, and the actions listed in the instructions be performed in the correct order. We wish you success!