What is the gift tax?

Close relatives often transfer ownership of real estate through a deed of gift. In this case, it passes to the new owner immediately after signing it. And, unlike inheritance, an apartment or other real estate has already been assigned to a specific person. At the same time, it is very difficult to challenge a deed of gift if everything is done legally correctly.

Deed of gift for a house between close relatives.

Let’s immediately determine who the law calls close relatives. The Family Code of the Russian Federation says that these include: husband or wife, parents, sons and daughters, then come grandmothers, grandfathers, grandchildren and brothers, sisters - read more here.

How to draw up a deed of gift for an apartment between close relatives in 2021

The Civil Code of the Russian Federation defines the preparation of a deed of gift as a transaction when property is transferred from the donor to the donee. The procedure must be free of charge - this is an important condition.

Registration of a deed of gift for an apartment between relatives is a legal action, which, along with other agreements, is subject to significant requirements. The deed of gift is drawn up either independently or in a notary’s office.

Peculiarities of drawing up a gift agreement for an apartment between close relatives

You need to be very responsible when drawing up a contract yourself in order to identify all the necessary nuances and indicate all the required information. Otherwise, the Rosreestr authorities have the right to refuse its registration.

These mandatory details include:

• title, date and place of compilation;
• passport details of both parties;
• indication of the property (type, area, address and cadastre data);
• details of the document confirming the right to the transferred apartment;
• market valuation of the apartment;
• if the donor is not ready to part with the property at the time of signing the contract, he can specify the date or conditions of the transfer. The condition can be any important event when the apartment passes to the recipient.

For example, the birth of a child or a wedding. Then only if the condition is met, he will become the full owner of the property, and until then, the document on the right will contain a note about the existing encumbrance.

It is imperative that the contract contains a line indicating that the donor performs the action and signs the contract voluntarily and is of sound mind.

The most reliable legally is notarized execution of the contract. It is the notary who will make the most competent document, which will be more difficult to challenge. This is done most often when there are other relatives who may try to prove the illegality of the transaction and present their rights to the apartment. Then, if they go to court, the notary can act as a witness.

In addition to drawing up the donation document itself, the notary will submit it for state registration of the right and will help restore the agreement if it turns out to be lost.

Of course, these services are not free, but they are worth it if one or both parties want to protect the transaction from possible delays in challenging it.

Features also include:

1. Donation of joint real estate (acquired during marriage) must occur with the consent of the spouse. This is a document that is certified by a notary.
2. The transfer of a gift share of an apartment also requires the written consent of all other participants who own the remaining shares. They are certified by a notary.
3. The transaction of transfer of ownership is subject to registration in order to make an entry in the Unified State Register.

The basis for drawing up a gift agreement is the mutual consent of the parties. The recipient should know that Article 573 of the Civil Code allows him to voluntarily refuse to transfer property at any time without giving a reason.

Donation is a gratuitous transaction that does not require anything in return from the other party. Therefore, the donor does not have the right to stipulate any conditions that could be regarded as material benefits.

Deed of gift for share

If a donation agreement for a share in an apartment is concluded, then in addition to data about the object, there must be information about the remaining owners of shares in it. Their right to the apartment will remain.

The most difficult moment is allocating a share in kind if it has not been allocated earlier. If the title deed indicates joint ownership of several people, then the donation will require a specific allocation of shares. This will require a mutual agreement between all participants in the ownership of the apartment. It is usually distributed in equal shares.

A share cannot be donated if other obligations are imposed on it. For example, an apartment may be pledged to a bank if a loan is taken as collateral.

What can you give to your brother or sister?

The choice of gift is left to the donor.

He has the right to donate any property belonging to him, but taking into account certain features:

1. Donation of a share in the ownership of real estate. There is no need to obtain the consent of the other owners, but the DD is certified by a notary.
2. Donation of shared property during marriage. According to Art. 35 of the RF IC, the donor will have to take the notarized consent of the spouse, otherwise he will be able to challenge the transaction within one year from the moment he became aware of it. If the share in the real estate is not allocated, you need to draw up an agreement on the allocation of shares, and only then draw up a deed of gift.
3. Donation of a private residential building. Such real estate is alienated simultaneously with the land plot on which it is located. You cannot donate a house without donating land.

The law does not prohibit giving animals, plants, equipment and other things, but in some cases gifting is prohibited. You will not be able to give away strong prescription drugs, as well as weapons, drugs and other prohibited substances - this is illegal.

Is it possible and how to draw up a deed of gift without a notary?

How to issue a deed of gift for a nephew or niece?

What documents are needed to donate an apartment to a close relative?

To register the right upon transfer under a gift agreement, the following documents are required:

• gift agreement in the number of copies for each participant in the transaction + an additional copy remains in Rosreestr;
• statements from the donor and the donee in the prescribed form;
• a receipt proving payment of the state fee;
• passports of all participants in the transaction;
• an extract from the Unified State Register of Real Estate, according to which the donor will prove his right to the transferred apartment;
• extract from personal account - issued by the management company;
• consent of the spouse, certified by a notary, if the housing was purchased during marriage.

An important point is proof that the transaction is made between close relatives. To prove this, you must attach documents proving your relationship.

How to draw up an agreement to donate an apartment to a brother or sister: step-by-step instructions

If the agreement is drawn up in writing, first you need to notify the donee brother or sister of your intentions to conclude it. This is important because on the basis of Art. 573 of the Civil Code of the Russian Federation, before the transfer of a gift, a person has the right to refuse it.

The step-by-step procedure looks like this:

1. Drawing up a deed of gift. You can do this yourself or entrust it to a lawyer, having previously prepared the documents.
2. Signing the contract. If the transaction requires notarization, the parties sign in the presence of a notary. He explains to them their rights and responsibilities and checks their legal capacity.
3. Transfer of a gift. If a real DD is drawn up, the gift is transferred after signing. When drawing up a contract of promise of gift, the obligation to transfer the gift to the donee arises from the date specified in it.

Important! If real estate is donated, the transfer of ownership is registered in Rosreestr. To do this, both parties must come and submit documents. In 10 days, the donee will receive an extract from the Unified State Register of Real Estate, where he will be listed as the owner.

Sample donation agreement

There are no unified requirements for a deed of gift, but in order for the registrar to accept the agreement, it is important to provide complete information about the transaction and the parties:

• Full name, date of birth, passport details of the donor and recipient;
• information about the donated property: address, location, number of rooms, area, date of ownership of the donor, date of delivery of the house;
• a reference to the donor’s intention to give the gift free of charge;
• obligations and rights of the parties;
• terms of cancellation, amendment of the contract;
• date of conclusion, signatures.

The deed of gift is drawn up in triplicate. One remains with the citizens, the third will be needed for the registrar. If the parties certify the transaction by a notary, a fourth copy will be needed for storage in the archives of the notary's office.

Sample agreement for donating an apartment between brother and sister:

Consultation on document preparation

Documentation

To donate real estate you will need:

• documents confirming the grounds for the origin of the donor's property rights: agreement of exchange, purchase and sale, certificate of inheritance, etc.;
• passports of the parties;
• documents confirming relationship;
• cadastral passport, other technical documents.

If a legal representative is involved in the transaction, a notarized power of attorney is required. You can re-register ownership of housing directly at Rosreestr or by contacting the MFC: in both cases, an additional gift agreement is provided, on the basis of which state registration is carried out.

State registration fee

To register real estate in the name of the donee, he pays a state duty of 2,000 rubles.

Is a contract for donating an apartment to a close relative subject to tax?

Documents about close relationships are also needed so that the recipient of the apartment as a gift does not have to pay tax.

If the close relationship of the participants is not proven, then such a document will become an ordinary gift agreement, which will entail the obligation to pay income tax in the amount of 13%.

How to get a 13% tax deduction from the state from the sale or purchase of an apartment.

Apartment donation transaction: legal features

The donor of the apartment has no obligation to draw up a declaration and pay tax, since the person who donates the property to another entity does not receive any income. If you receive a letter from representatives of the tax service containing a demand for tax payment, the donor must write an explanatory document and send it to the tax authorities with a deed of gift attached.

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Who can be a party to a gift transaction?

The procedure for transferring any property as a gift is regulated by the relevant provisions of the Civil Code (Chapter 32). The very concept of a donation agreement (deed of gift) is also considered in the Civil Code of the Russian Federation (Article 572).

• gratuitousness is when the donor donated property and does not reserve the rights to such ownership, and the donee becomes the full owner;
• the agreement is signed voluntarily - this is when the donor and the donee do not have mutual claims in this direction;
• during the transfer of property, the donor reduces his property;
• principle of increase.

Advantages and disadvantages

As with any real estate transaction, deeds of gift between close relatives have their pros and cons. Therefore, each of the participants should carefully consider and compare them before signing the contract.

The positive aspects include the following:

1. Availability of registration, simplicity of the transaction. If there are no nuances with the real estate, then it is enough to draw up the document yourself, sign it and submit it for registration. In case of any difficulties or hints of possible legal delays, it is better to seek help from a notary.
2. The ability to accurately indicate the date or conditions for the transfer of the apartment to the donee. If these are not specified in the contract, then the right passes from the date of signing. On the part of the donor, it is sometimes important to clarify the condition. For example, an apartment will be given as a wedding gift.
3. If an apartment is transferred by gift to a close relative, the transaction is not subject to income tax.

Let's also note the negative aspects:

1. The deal can be appealed. This, of course, is a very rare and difficult process, but it is possible. It is possible to recognize a gift agreement as invalid in the case where the donor is recognized as mentally ill or in an inadequate state at the time of signing, or there was a fact of extortion, blackmail or pressure.
2. Complete transfer of ownership of the apartment without additional wishes of the donor. After the deed of gift comes into force, the one who donated his home cannot demand anything in relation to the living space. That is, if the donee demands to vacate the apartment, the donor is legally obliged to leave it, losing the right of residence.
3. The consent of other owners is required. If a share in an apartment is transferred where there are other co-owners, then their consent will be required.

Please note that the validity of the gift agreement can only be confirmed after state registration in Rosreestr. If the registration authority refuses, this means that the transaction is declared invalid for certain reasons.

Important to know : How to cancel a deed of gift for an apartment during the life of the donor?

An important nuance of the deed of gift is that the property that was received as a gift is the personal property of the recipient. This means that it will not be the common property of the spouses and will not be subject to division during a divorce. A deed of gift differs from a will in that it is very difficult to revoke it.

Who must pay tax when donating real estate and how much?

It's always nice to receive gifts, especially if it's an apartment or a house. The only problem is that such gifts are of great interest to the tax service - after all, income received in the form of donated real estate is subject to personal income tax (clause 18.1 of Article 217 of the Tax Code of the Russian Federation).

Is it possible to be exempt from tax if the gift occurs between cohabitants?

Finally, this controversial issue received an official clarification from the tax service. She admitted that in the event of termination of the gift agreement, the donee does not receive income - which means he does not have to pay personal income tax (Letter of the Federal Tax Service dated 12/08/2020 No. BS-4-11 / [email protected] ).

When independently preparing a deed of gift, they take into account the need to include the main parameters of the transaction, indicating the parties and the transferred object. It is important that the agreement does not mention additional conditions that would provide a benefit to the donor from the transfer of the gift.

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Accepting a gift of an apartment worth up to 1 million rubles should not be confused with sales tax exemption, when the owner of inexpensive housing does not pay tax on income. A gift agreement excludes any compensation and represents a completely different way of re-registration of property.

Nuances of tax determination

When planning the further disposal of real estate, a close relative must take into account an important detail: sales within the next 3 years from the date of acceptance of the gift entail payment of a tax of 13%. It is calculated based on the cost of the object, minus 1 million rubles. Thus, the seller is obliged to pay tax for any sold object whose value is above 1 million rubles.

Many people have a question: how much tax is paid? When donating real estate, the payment amount is calculated based on the cadastral value of the property. This value is determined as a result of a cadastral valuation in accordance with Federal Law No. 237. Ideally, the cadastral value should correspond to the approximate market value (the price for the same object on the market). In fact, the cadastral price is significantly higher than the market price. As a result, the owner will have to pay a decent amount of tax to the state budget.

The above-mentioned persons pay tax payments on a general basis, despite existing family ties. Pensioners do not have benefits when donating. Only if he is one of the close family members, then the benefit applies. To confirm the relationship between the parties, it is necessary to have an appropriate document, according to which the chain of relationship can be established.

Where to pay tax?

To conclude a deed of gift, certain conditions must be met:

1. property is donated free of charge;
2. property is transferred without conditions;
3. the donor must have full legal capacity at the time of the transaction;
4. the parties must understand the legal consequences of the transaction;
5. the donor should not be under pressure (physical or psychological pressure);
6. property documents must be originals;
7. the object of the donation must be the private property of the donor;
8. an object in joint ownership is donated with the consent of the spouse (other owners);
9. third parties should not claim rights to the object;
10. the object should not be under an encumbrance (pledge, arrest, mortgage).

In addition, in 2021 it is possible to send this package by mail. However, delivery times may differ significantly from the first method, and the taxpayer himself will not be able to influence the situation if he makes a mistake. As a rule, this delivery method is chosen in cases where a citizen is not able to visit the tax office in person.

Letters from the Ministry of Finance of the Russian Federation indicate that when donating real estate, parties not included in the category of close relatives are required to be guided by the information specified in the gift agreement. But, there is one caveat. All this becomes possible only if the value specified in the gift fully corresponds to the real market value of the object.

How much is gift tax due?

At the same time, according to the Tax Code of Russia, when paying this type of tax in 2021, no benefits are still provided (for example, for pensioners or disabled people). Even children under the age of majority must pay the full amount declared in the declaration. If such persons do not have income, the obligation to pay personal income tax passes to their legal representatives, who, as a rule, are parents or guardians.

The tax inspectorate will first issue a report on tax offenses to the donee, then a decision on holding him accountable for them. The inspector himself will calculate how much tax the recipient must pay - usually it is 13% of the cadastral value of the donated apartment. Plus will determine the amount of penalties and fines.

• 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).

The tax on donating an apartment is personal income 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 recipient lives in the Russian Federation, what citizenship he has, whether he is a resident or not. If you received an apartment as a gift from a close relative, you never pay tax.

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A property deduction is an amount by which the tax base can be reduced. It is provided to citizens who regularly make deductions in the amount of 13% from wages, agency fees, rental housing, business activities or the provision of services to the public.