Sale of an apartment less than 3 years in the property. Purchase and sale of apartments. Apartments for sale

As you know, the income from the sale of apartments by individuals is subject to personal income tax - a personal income tax. When buying and selling housing on the territory of the Russian Federation, in all cases it is paid to the Russian budget, even if this transaction is made by citizens of other countries.

The aforementioned sphere of legal transactions is so diverse and rich that it can only be described by an impressive multivolume. The same article pursues a much narrower goal: to reveal some features of the sale of apartments by citizens, if this property is in their ownership for less than three years.

From the legal point of view, the period of preliminary possession of the apartment before its sale is principled in view of the different assessment of the tax base. This precedent is peculiar to Russian legislation. In the United States, for example, such a transaction is not taxed at all (is this not one of the reasons for the real estate crisis that broke out in 2007?), Western Europe, on the contrary, demonstrates a tougher approach. The Tax Code of the Russian Federation with its Clause 17.1, Art. 217 potentially exempts from the income tax the absolute majority of Russian property owners who are such for three years or more.

However, with a lesser possession of the same tax code (art. 208 par. 1, item 5), a legal situation is fixed where the sale of an apartment is subject to taxation. Less than 3 years in ownership entails two alternative options for determining the amount of income tax (NDFL), both - with a rate of 13% when selling an apartment, which we will consider later. Incidentally, in France tax authorities have acted much more rigidly. There, when selling an apartment within a year after its purchase, such a return to the budget will be a third of its value.

The economic reason for differentiation

Why does the state demonstrate such a different approach in determining the tax base, taking as a guide such a seemingly non-economic indicator, as the term of ownership? Why tax collectors are taken for a landmark period of three years?

Much more profitable for the owner of the apartment, if it does not suit, wait more than three years, and then sell to buy a new one, leaving all the money to themselves. Indeed, the "classical" owner does this. But the real estate speculator thinks differently. For him, buying and selling apartments is business. Through the tax code, the Russian state not only limits the profitability of such speculations, but also keeps records of them, while also drawing funds to the budget.

Variants of taxation

"Short-term" owner has the right to elect how it will be more profitable for him to be taxed on income (NDFL) selling an apartment. Less than 3 years in ownership - this period legally defines two ways to determine the base of this tax in this situation. As already mentioned, the tax rate for both options is 13%.

The first option involves taxing the net income of the owner as the difference between the purchase price and the sale price. For example, the owner bought an apartment for 1.4 million rubles, and sold for 1.9 million rubles. The owner's net income of 0.5 million rubles was provided by this apartment sale. Less than 3 years in ownership - a circumstance that reduces the benefit of the amount of tax: (1900 - 1400) * 13% = 65 thousand rubles.

In the second variant, if the apartment was placed in the property for free, the basis for taxation is its selling price, reduced by 1 million rubles (Article 220, paragraph 1, subparagraph 1 of the Tax Code). The Federal Tax Service of Russia by letter No. ED-4-3 / 13578 of July 25, 2013, systemizes the procedure for determining the amount of deduction from the tax base for net income.

Let's assume that the proceeds from the sale of the apartment amounted to 1.7 million rubles. The owner, who sold it, must pay to the budget the amount (1700 - 1000) * 13% = 91 thousand rubles.

Another option of deduction from the tax base

In a situation where the owner of an apartment has invested in its repair funds exceeding 1 million rubles, then buying or selling an apartment for him may be accompanied by a different way of reducing the tax base. According to Art. 220 of the Tax Code of the Russian Federation, he has the right to reduce the amount of income received for actually incurred, as well as documented expenses.

What is the result of the illegal "tax optimization"

Unfortunately, it happens that the owners of apartments in collusion with realtors and the buyer intentionally understate their market price, often illegally "optimize" tax deductions. How is this fraught with the Dodgers? The tax service, having determined the fact of understating the value, has the right through the court to break the deal - to return the apartment to the owner. In addition, an adequate notary has the right to refuse to register a contract of sale.

Resident non-resident

The above tax rates are valid for residents, that is, for people who live in Russia for 183 days a year. The absolute majority among them are citizens of Russia.

On the other hand, non-residents - foreigners and citizens of Russia, who live primarily abroad - can own and dispose of the apartments as property. For them, the sale of apartments is taxed at an increased rate, more than twice as much: 30%. And for non-residents a three-year term is not even mentioned by the tax code. Let's say more, no matter how long their housing does not belong to: three years or fifteen to twenty years, the tax rate remains unchanged. Let's say the apartment was bought for 5.0 million rubles, then the non-resident sold it for 6.5 million rubles. In this case, the amount of income tax (PIT), which should be paid to the budget by a non-resident, will be (6500 - 5000) * 30% = 450 thousand rubles.

The moment of acquisition of ownership

As we see, the period of possession determines the amount of tax paid when the apartment is sold. Less than 3 years in ownership are defined not as three calendar years, but as 36 months, starting from a certain date. What circumstances determine the time of acquisition of ownership? In the case when it is acquired through privatization, signing of a gift contract, purchase and sale, barter, rent as compensation for a demolished house, the date of registration of this right is the date of registration of the certificate of ownership.

The point of reference for the acquisition of this right for the beneficiary of the inheritance is the death of the testator. The owner of cooperative housing can call himself its owner only on the day of the final payment of the share.

Thus, the sale of an apartment as a transaction is always commensurate with the time of the onset of the right of ownership.

Clarification: it's not just about the apartment

To apartments, concerning the application of the tax on income of individuals, at their sale are also cottages, garden houses, cottages, land plots for building, rooms in apartments, the latter - only whole (legal term), that is having their own number, for example: Room number 1 in apartment number 7. It means that the apartment sale transaction is legally standard. To all of the above immovable property, the rates of NC, already mentioned by us, are applicable.

But if the rooms are not registered each under their own number, then the situation described below is quite possible. Let's say there are 4 rooms in the apartment, each of them is owned by a separate person. Then everyone sold their rooms, each for about 1.0 million rubles. The tax authority testifies that in such a situation the cost of all apartments is summed up to determine the total selling price. In this case, the sale of the apartment will be subject to personal income tax as follows: (4 * 1000-1000) * 13% = 390 thousand rubles. Each seller will pay a tax on income as ¼ of the aggregate amount of 390: 4 = 97.5 thousand rubles.

Find an apartment to buy - a problem?

Finding the "right" apartment to buy is a troublesome business. At first glance, the housing market proposal is full of variety of proposals. However, if you really start calling up with the people who made the announcement, then very soon you will find out: they are not in a hurry to name the house number where the apartment is located. The latter means that you are talking with the intermediaries of the housing market, that is, with realtors. Often buyers are interested in selling apartments from owners. But is this always justified?

On the one hand, of course, it's good that the housing market is structured, and professionals work on it. This can protect the persons who commit this transaction from illegal schemes, which are fraught with further termination. Of course, for this security will have to pay an intermediary - a real estate agency. Here are the approximate prices for "confidence and tranquility": an audit of the legality of the transaction - from 10 thousand rubles; Registration of property rights to housing - from 15 thousand rubles., "Turnkey" - from 20 thousand rubles. Indeed, there is a share of common sense in the fact that a person who is not daily connected with the legal side of transactions, turns to realtors.

Independent apartment search

However, a certain category of legally literate fellow citizens still attracts the opportunity to save money by making a deal without the services of realtors. Sale of apartments from owners is more rare in the market, it should be looked for. The easiest way to pay attention to the purchase of apartments in the primary market, that is, from the builder. At the same time, in order to avoid misunderstanding, it is necessary first to find out to which class of housing the building under construction or the house is built: VIP-, classic- or economy class. This can be determined by the method of delivery (turnkey or self-completion), the area of apartments of housing stock, by the prevalence of multi-room apartments in it. Find out which developers are building housing in your city. Make inquiries about their reputation and "track record."

The sale of apartments from owners in the secondary housing market, as we have already mentioned, is more rare. But the enthusiasts of her search are not discouraged: before they find, hundreds of times they go in and update the information on the AVITO site, most often for such a search it takes several days, they buy newspapers with ads, call the numbers of the ad-owners and find ...

However, it is not a fact that a successful "successful buyer" of a house will not overpay its owner over the market price the amount that a realtor would take from him. It's no secret that apartment owners often overstate their price. However, for the "real buyer" the sale of secondary apartments is also not Turkish diploma.

If it is decided to buy an apartment in a "foreign" city, then cautious people prefer to act only through an intermediary, but not independently. At the same time, the probability of possible "surprises" is minimized.

Legal actions when buying an apartment

We will shift the focus from the review of the specifics of the Tax Code, taking into account the residency, preferential terms, the tax rate, the tax deduction for the sale of an apartment, for the purely legal formalities of the transaction.

Let's start with buying an apartment, because this is the first step of the beneficiary. On his part, three blocks of action are proposed.

First, the buyer checks the seller's documents and signs the preliminary contract.

Then (if the transaction occurs in the secondary market), the alienation agreement is signed. In the case when an apartment is purchased in a new building (primary market), the signature of the receipt is transferable (possibly, instead of it, a preliminary agreement regulating the investment deposit, equity construction, construction on unit bases).

The last stage is the state registration of the transaction. For the buyer it is crucially important to perform all these stages in a scrupulous manner. And special attention should be paid to cases when urgent sale of apartments is made.

Symptoms of fraud

Scammers usually try to make the sale process vain, trying to hide essential details. If such events begin to take place, and the seller tries to rush you, do not hesitate, abruptly break off the cooperation and tell him: "Goodbye!" - this will protect you from the costs.

As you know, money likes silence. Carefully read the original of the contract of sale, registered by a notary. Even if you previously deducted his draft contract, a sample of buying and selling an apartment. Be vigilant - especially regarding the final text printed by the notary.

Preliminary agreement

At the first stage, the buyer first specifies the price, and then studies the completeness of the package of sales documents. The buyer should analyze the presented technical characteristics (form number 7), registration of tenants in the apartment, a document granting ownership of it (contract of sale, privatization, donation).

In more detail, the package of documents for registration of the purchase must be completed with the following documents:

- application for state registration of the apartment;

- the contract of sale and purchase (it determines the time of sale of the apartment);

- documents of BTI - explication and stage-by-stage plan of the apartment;

- a copy of the applicant's passport document;

- a receipt for payment.

Let's start with the secondary market. It is necessary to pay special attention to the possibility of various problem situations in the future. This means the following clarification of the circumstances:

- whether the property being sold is under arrest;

- from all the heirs, the will is voluntarily taken-consent to the sale;

- whether the rights of persons living in an apartment are not violated.

In the primary real estate market, the builder buys an apartment. What documents are needed in this case? Pay attention to the construction schedule, when the deadline for putting the apartment into operation is planned. In this case, there should not be a significant difference with the degree of readiness of the object to be delivered. Look for information on the business reputation of the organization-builder, is there "on her conscience" long-term construction. Further, documents that display:

- state registration of the lease of the building site (possibly ownership of it);

- the right of the builder for construction;

- agreement on raising funds, investment contract;

- The plan for the provision of apartments.

For better mutual understanding with the seller, it is desirable to obtain reliable contact information from him (online mode), and also to verbally specify with him the estimated time for the sale of the apartment, considering the unhurried, high-quality execution of all its stages.

The contract of alienation or the act of acceptance-transfer as the second stage of buying an apartment

Only after a qualitative preliminary check can you take on the second stage of the purchase: the signing of the contract of sale. It is not important whether the notary attended the signing of this contract, but it is required that there is an act of acceptance-transfer or an alienation contract signed at the first stage.

Let us draw your attention to the technical detail: in the alienation contract, the selling price of the apartment is indicated, it is the component of the calculation of the tax base - personal income tax when selling an apartment.

The moment of actual transfer of an apartment - contractually inherently, it can (by agreement of the seller and the buyer) be chosen alternatively:

- as the moment of signing the contract of sale;

- is correlated with its state registration;

- acquisition of a certificate of ownership of the apartment.

Conclusion

Analysis of the housing market in Russia reveals some positive trends. This is noted and its recognized analysts, in particular, the professor of the University. Plekhanov Gennady Moiseevich Stern. First, the state policy of price regulation gives tangible results.

In the long term, there is a gradual stabilization of prices with an orientation toward their pre-crisis level, which is indeed economically justified. In the short-term, there is a tendency to stagnate (meaning a fluctuation of prices around the weighted average by +/- 2.5%). On the assessment of apartments affects the stable exchange rate of the ruble: it is already customary that prices for them have become "ruble". To a large extent, the mortgage market is stepping up the housing market. For example, in 2012, the population issued mortgage loans worth more than 1.0 trillion. rub.

However, if we ignore this absolutely positive dynamics towards the security of the real estate market itself, we should note the risks that arise when buying apartments without intermediaries. Often non-professionals do not know certain nuances of buying and selling an apartment. On the vocabulary of specialists such transactions are called "unprotected". In view of the exceptional importance of respecting the legal aspect of buying and selling, we strongly recommend that you contact real estate professionals. Whether it is selling an apartment that is less than 3 years old, or another purchase and sale of housing, still the labor remuneration of specialists will be several orders of magnitude cheaper than the risk of a direct loss.