Land donation agreement: how to draw up a deed of gift?

Donation agreement for non-residential premises, according to Art. 572 of the Civil Code, is a written agreement between the donor and the donee on the free transfer into the ownership of the latter of any real estate, defined by law as non-residential premises. Domestic legislation does not contain specific instructions on which premises should be considered non-residential. According to paragraph 14 of Art. 2 Federal Law No. 384 dated December 30, 2009, premises are parts of a building that are limited by building structures and have a specific purpose.

For your information

Thus, based on the above definition and generally accepted contractual practice, non-residential premises will be buildings or parts thereof, limited by building structures, the purpose of which is social, administrative, industrial, cultural and other purposes, other than people living in them . Among them are warehouses, garages, offices, shops, etc.

The donation of non-residential premises involves its free transfer to the donee, which excludes the possibility of compensation on his part or the creation of any property obligations. If they exist, the transaction cannot be considered a donation; the contract is feigned, which implies its nullity and the application of appropriate consequences to it (clause 2 of Article 170 of the Civil Code).

When concluding a transaction of donating non-residential premises, the parties must take into account the prohibitions established by law (Article 575 of the Civil Code) and restrictions (Article 576 of the Civil Code) for donations. Thus, since non-residential real estate most often acts as an object of economic activity, it must be remembered that its donation within the framework of relations between commercial organizations is prohibited .

The specifics of gift legal relations significantly expand the rights of the parties, in particular the donor, regarding the termination and cancellation of a non-residential real estate contract. Thus, the provisions of Articles 577 and 578 of the Civil Code define a range of special grounds, in the presence of which the donor can terminate and annul the gift agreement, without any adverse consequences for himself.

Upon receipt of the specified premises as a gift, the recipient, in accordance with Art. Art. 208, 217 Tax Code, receives income that is subject to personal income tax . According to Art. Art. , 224 Tax Code, its size is 13% of the market value of non-residential premises, which is subject to payment to the tax authorities.

Drawing up a donation agreement for non-residential premises

General requirements for the form of a gift agreement are determined by the provisions of Art. 574 of the Civil Code, according to which non-residential real estate can be transferred to new owners, both under oral and written agreements. However, the need for state registration of real estate in Rosreestr and the procedure for its implementation create some peculiarities during registration .

Additionally

Thus, the procedure for state registration, according to Art. 13 Federal Law No. 122 dated July 21, 1997, requires applicants to provide a set of documents, including a gift agreement. According to Art. 18 of this law, all documents submitted for state registration must be executed on paper.

Thus, the donation of non-residential real estate must always be formalized by an agreement in simple written form (Article 161 of the Civil Code). Otherwise, making a gift orally will become grounds for refusal to carry out state registration.

The donation of these premises does not require notarization, however, the fact of its existence allows you to avoid many subsequent problems. In particular, according to Art. 163 of the Civil Code, the notarial form of donation makes it possible to confirm its legality and indisputability , including the existence of the parties’ rights to make it.

In addition to the form, the most important factor in the validity of the transaction should be its content. So, according to Art. 432 of the Civil Code, the deed of gift must contain a condition about the subject, i.e. have an indication of the gift. Thus, specification of any non-residential premises is carried out by indicating its exact address , belonging to a specific premises, area, description, indicating data from cadastral and technical passports, cost and other individualizing characteristics.

In addition to the subject, according to paragraph 2 of Art. 572 of the Civil Code, an indication of the donor’s obligation is required. Thus, a promise of gift agreement must contain a clearly expressed intention to transfer the gift in the future. In this case, creating obligations of the donee is unacceptable.

In addition, the deed of gift must clarify the procedure, conditions and method of transferring the premises to the donee, the documents being transferred and drawn up (registration certificate, deed of transfer). It is also advisable to clarify the procedure for undergoing state registration, including indicating who will bear the costs of its implementation.

If the premises have deficiencies that threaten life and health, the donee must be notified (Article 580 of the Civil Code). In order to avoid subsequent troubles and disputes, it is advisable to reflect them in the contract itself or the transfer deed.

Donation of commercial real estate to close relatives taxes

According to tax legislation, income that is expressed in kind or monetary equivalent and received as a gift from an individual is exempt from paying tax.
The tax rate is simple. It is 13% for citizens of the Russian Federation and 30% for non-resident foreigners. International treaties regarding personal income tax may be concluded with respect to foreign citizens, providing for other rules. It is more difficult to determine the tax base.

After all, we are talking about the free acquisition of income in the form of real estate: how to determine the amount of this income, the value of the real estate received as a gift? The Ministry of Finance and the Federal Tax Service of the Russian Federation have several times expressed opinions on this issue that contradict each other and themselves.

Forbidden

Attention

The specifics of gift legal relations significantly expand the rights of the parties, in particular the donor, regarding the termination and cancellation of a non-residential real estate contract.

Thus, the provisions of Articles 577 and 578 of the Civil Code define a range of special grounds, in the presence of which the donor can terminate and annul the gift agreement, without any adverse consequences for himself.

Upon receipt of the specified premises as a gift, the recipient, in accordance with Art. Art. 208, 217 Tax Code, receives income that is subject to personal income tax. According to Art. Art. 40, 224 Tax Code, its amount is 13% of the market value of non-residential premises, which is subject to payment to the tax authorities.

Execution of a donation agreement for non-residential premises General requirements for the form of a donation agreement are determined by the provisions of Art. 574 of the Civil Code, according to which non-residential real estate can be transferred to new owners, both under oral and written agreements.

Notary fee - tax when donating real estate to a close relative (spouse, parent, child, grandchild) is:

at a cost above the stated amount - 3 thousand rubles. 0.1% of the difference in asset value and 10 million rubles.
at a cost of within 10 million rubles. – 3 thousand rubles. 0.2% of the cadastral or assessed value of assets;

The fee for state registration of the transfer of ownership under a deed of gift for an apartment between close relatives is 2 thousand.

This innovation made gifting as a legal procedure much easier. This is one of the very important questions. Indeed, how to determine the value of real estate so as not to pay too much or, conversely, to pay the tax in full without remaining in debt to the state?

Cost can be determined in various ways.

There are several other features of the calculation. Thus, if a gift involves the transfer into personal ownership of not all real estate, but only part of it, then the tax is calculated based on the value of this part of the real estate and is equal to the same 13 percent.

Thus, tax on the gift of real estate to a close relative will not be paid.

However, after the donee takes ownership, it should be taken into account that he will have an obligation to pay property tax (Article 400 and Article 401 of the Tax Code of the Russian Federation).

The category of distant relatives includes: cousins and second cousins; spouse's brothers and sisters; nephews (including grandchildren); spouse's parents; great-uncles and grandmothers; other relatives.

In particular, if one of the parties to the agreement is a legal entity, then to formalize the transaction you will also need documents such as: registration certificate; constituent documents with all existing amendments; a document confirming registration with the tax authorities; a document that confirms the authority of a representative of a legal entity.

brothers and sisters (including only one parent, that is, half-siblings).
parents and children (both natural and adopted);
spouses;
grandparents and grandchildren;

All these persons do not pay taxes on the donated real estate!

Thus, when concluding a gift agreement within a family, the recipient of housing as a gift does not have the obligation to pay tax and submit a tax return 3-NDFL.

However, when drawing up a deed of gift, you need to take into account particularly important points that should be clarified. The gift deed can be drawn up anywhere, regardless of your location.

However, if this agreement is not registered with the Registration Service of the locality where the donated property is located, then the agreement will be invalid.

The agreement should be drawn up by a competent notary, and then certified by a special Registration Service. Only gifts between close relatives are exempt from tax.

The gift agreement must contain: A deed of gift is a gift transaction in which one party donates property belonging to the other party free of charge.

But in legislative documents there is no concept of “deed of gift”. This word is popular among people. The laws include the expression “deed of gift”.

The donor has the right to independently choose who to give the apartment to.

Last updated March 2018

When deciding on the possibility of donating real estate to someone: be it relatives or strangers, you should remember that the completion and execution of such a transaction is subject to tax. Therefore, you need to familiarize yourself with the Legislation regulating the rights and obligations arising in the transaction of both the donor himself and the recipient - the new owner of the property, or seek the help of lawyers.

The Tax Code of the Russian Federation provides for the imposition of personal income tax (NDFL):

all income of citizens of our country and foreigners who are residents at a rate of 13%
foreigners and citizens of the Russian Federation - non-residents 30%

A resident can be not only a citizen of the Russian Federation, but also a foreigner who has lived in Russia for more than 183 days. In addition, a Russian who lives in another country for more than 183 days loses his resident status.

If you received real estate as a result of a transaction under a donation agreement, then the object of taxation is:

The MARKET value of the apartment at the time of the transaction for such property, for the calculation of tax from January 1, 2021, it is compared with the cadastral value.
CONTRACTUAL - the value of the donated apartment or house specified in the donation agreement - it should not exceed the market value by more than 20% and should not be underestimated by more than 20% (until 2021). Since 2016, it has also been compared with the cadastral value and for tax purposes the value should not be less than 70% of the cadastral value.
CADASTRAL - from January 1, 2021, for tax purposes, the value should not be less than 70% of the cadastral value, except if the cadastral value is unknown or the cost of housing is less than 1 million rubles, and the cadastral value is less than 1,428,571 rubles.
When donating part of a house or apartment, the taxable amount is calculated according to the donated share of the value of the property at the same rate of 13%.
If the value is not indicated in the donation agreement, the calculation is based on the full cadastral value.

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In other words, from 2021, if the amount of the gift under the gift agreement is not specified, the cadastral value is taken for calculation, if the price is indicated in the gift agreement, it is compared with the cadastral value and if it is less than 70% of the cadastral value, then calculation is made from 70% of the cost according to the cadastre.

Examples:1. The market value of the apartment is 3 million rubles, the tax will be 3 million * 13% = 390,000 rubles.

2. The market value of the apartment is 4 million rubles, 1/3 share is donated, the tax will be (4 million/3) * 13% = 173,000 rubles.

See also the new calculation of real estate tax for individuals from 2016 (apartments, houses, garages, dachas) will also be tied to the cadastral value, and not to the inventory value, as was previously the case.

The following are exempt from taxes on donating an apartment to a relative:

Spouses
Grandmothers and grandfathers
Parents (adoptive parents), their children (also adopted children)
Grandsons and granddaughters
Brothers, sisters (full and half-siblings)

The list is established by the Family Code of the Russian Federation, in which employees of Consulates and their families can exercise the right of tax exemption.

Donating an apartment to a close relative exempts him from paying tax, but when completing the transaction, the recipient will incur additional expenses: payment of state fees, costs of drawing up a gift agreement, and, if required, notary services.

If a close relative, exempt from paying gift tax, sells the apartment given to him in the next 3 years, then in this case he is not exempt from paying the 13% tax on the sale of property owned for less than 3 years. In this case, the tax is imposed on the cost of an apartment exceeding 1 million rubles. (1 million is a tax deduction).

Example: Parents gave their son an apartment in 2012, in 2014 he sold it for 2,500,000 rubles. Therefore, the tax amount will be (2.5 million - 1 million) * 13% = 195,000 rubles.

son-in-law, daughter-in-law
aunts, uncles
nephews
cousins
cousins, grandparents and other relatives.
persons who have no family ties

There are no benefits for pensioners in this case. If real estate is given to a pensioner (not from the list of close relatives), then he is obliged to pay the same 13% according to the general rules.

The taxpayer often has a question: if the market (or cadastral) value of the donated apartment is no more than 1,000,000 rubles, is it necessary to pay tax or can a property deduction be applied?

If the donee is not from the list of close relatives exempt from tax, then the tax is paid on the full amount and no deduction (1 million rubles) for a gift is provided for by law.

Registration of a donation agreement for non-residential premises in Rosreestr

According to Art. 2 Federal Law No. 302 dated December 30, 2012, state registration of real estate donation agreements was cancelled. However, this does not at all relieve the parties from the obligation to carry out state registration of rights to real estate (Article 131 of the Civil Code), carried out on the basis of Federal Law No. 122 of July 21, 1997, taking into account specialized Methodological recommendations.

Attention

According to paragraph 2 of Art. 223 of the Civil Code, the right of ownership in transactions requiring state registration of rights passes to the purchasers of goods (the donee) only after it has been completed .

According to Art. 9 Federal Law No. 122, state registration is carried out by the Federal Service for State Registration of Cadastre and Cartography (Rosreestr), local branches of the service in populated areas and Multifunctional Centers (MFC). To register rights to non-residential premises, applicants submit to the specified authorities a set of documents, the requirements for which are indicated in Art. 18 F No. 122.

The required documents themselves are defined in the articles of the said law, but it is advisable to find out their specific list in advance from the state registrar. It should also be remembered that before submitting documents, applicants must pay a state fee , the amount of which, according to Art. 333.33 Tax Code is 2 thousand rubles. for citizens and 22 thousand rubles. for legal entities persons

In the registration procedure, these bodies check the submitted documents for their compliance with the law , enter information into the register of rights (USRE), apply certification inscriptions to the title documents and return them, along with the state registration certificate, to the applicants.

According to Art. 13 Federal Law No. 122, registration is carried out within 10 working days from the date of submission of documents. After this period, in the absence of contradictions to the law, the applicants are issued the specified documents, and the donee should be considered the rightful owner of the non-residential premises.

Example

PlitSpichTorg LLC and TsRMO OJSC entered into a donation agreement, according to which TsRMO received private ownership of warehouse premises with an area of 800 square meters. m. After signing the deal, representatives of the parties sent documents for state registration of rights. After 10 working days, a representative of OJSC “TsRMO” received by mail a resolution refusing state registration due to non-compliance with the requirements of the law in the content of the submitted documents (Article 20 of Federal Law No. 122). In particular, the applicants were explained that donations between commercial organizations, of which they were, were prohibited (clause 4 of Article 575 of the Civil Code).

Special cases of donating non-residential premises

Depending on the nuances of a particular particular donation situation, such a procedure may require compliance with certain features . To a large extent, this is due to the peculiarities of civil circulation of non-residential premises, their taxation, compliance with the rights of co-owners, subject composition, donation restrictions, etc.

The procedure for registration and state registration of deeds of gift for non-residential premises is identical to the procedure for carrying out these procedures with other real estate objects. Their implementation is not affected by the specific features of individual cases of gift transactions.

Gift to a relative

The gratuitous transfer of the real estate in question presupposes the receipt on the part of the donee of some income, subject to 13% personal income tax on its market value. However, if the donating parties are close relatives or family members, such income is not subject to taxation .

Based on this and in accordance with clause 18.1 of Art. 217 of the Tax Code in this case, the donee will be released from the obligation to pay personal income tax . Let us note that such close relatives, according to Art. 14 IC should include children and their parents, grandparents and grandchildren, siblings and half-brothers.

In addition, there are some features when notarizing the donation of premises in favor of spouses, parents, children and grandchildren. According to Art. 22.1 of the Fundamentals of Legislation on Notaries, for these relatives and family members, a special notarial tariff , the amount of which is 3 thousand rubles. + 0.2% of the property value, but not more than 50 thousand . For all other persons, the tariff is significantly higher.

Donation of a share of non-residential premises

When alienating a part of non-residential premises that is in common shared ownership for compensation, such a procedure requires compliance with the rights of co-owners, in particular, their right to pre-emption (Article 250 of the Civil Code). This right allows co-owners to acquire a share of common property on conditions similar to those of third parties, but they have an advantage over them.

Important

Donation, being a gratuitous transaction, allows you to bypass this restriction , since the rule established by Art. 250 Civil Code does not apply to him. Taking advantage of this opportunity, unscrupulous donors cover up the purchase and sale with a donation, which makes the deed of gift void (clause 2 of Article 170 of the Civil Code).

If the premises are jointly owned, then its donation requires the consent of all co-owners, which, however, is presumed (Article 253 of the Civil Code). According to Art. 35 of the IC, if real estate is owned by spouses, its donation by one of them is possible only with the notarized consent of the other .

Donation of commercial real estate between close relatives of property

In this case, the inclusion of a gift in taxable income depends on several points:

Will the donee use the donated property in his business activities or not;
Who is the donor - a relative or an outside individual.

If the recipient individual entrepreneur plans to use the donated object in his business activities, then regardless of whether the donor is a close relative or another citizen, the market value of such a gift must be included in income and a single tax must be paid on this amount in accordance with paragraph 1 of Article 346.15 and paragraph 8 of Article 250 NK.

Registration of donation of real estate The parties can register the deed of gift independently. But it is best to do this with the help of a specialist, for example, in a notary office.

The contract is also verified there, which allows its parties to avoid many unpleasant moments in the future in the event of disputes regarding the transaction between them or interested parties. The process of registering a gift of real estate consists of several main stages:

Drawing up a contract and signing it;
Registration of the transfer of ownership of real estate with the relevant government bodies.

It is important to draw up a gift agreement correctly so that its form and content comply with legal requirements.

Moreover, it is impossible to transfer real estate as a gift from one commercial organization to another commercial organization. It is not necessary to have the gift deed certified by a notary, but many people prefer notarization to be sure.

Attention You can donate real estate exclusively free of charge. It is prohibited to set any conditions in the gift agreement, for example, to require the performance of any services or the payment of money for the gift.

Deed of gift between close relatives of commercial real estate The donee acquires ownership rights immediately after state registration of the right is made. If, for example, a daughter has not yet reached 14 years of age, then her parents or guardians can arrange the transaction for her.

Donation of real estate: legal consequences and nuances Thus, an agreement containing a condition providing for the transfer of a gift after the death of the donor cannot be called a gift agreement, since the rules of inheritance apply here.

Taxation of real estate by gift The actual formula for calculating the amount of deduction is simple: the base is multiplied by the interest rate.

Other documents may also be needed, for example, a cadastral passport and title documents for a land plot if the subject of the transaction is a building.

If the real estate being transferred as a gift is the common property of the spouses, for state registration it is necessary to attach the notarized consent of the spouse to the gift of real estate to the gift agreement.

And if the real estate is your personal property, you will need a notarized statement that you were not married at the time you acquired ownership of the donated real estate. How to formalize the donation of a commercial real estate property A real estate donation agreement is concluded in writing between the one who gives - the donor and the one who accepts the gift - the donee and is sealed with their signatures.

A specialist from a real estate company or a notary will help you draw up a gift agreement correctly.

However, this year I received a petition from the tax service that I did not file an income tax return and did not pay personal income tax on the value of the donated real estate.

Am I legally required to pay this tax or not? What consequences await me in this situation? Indeed, if a real estate donation agreement was concluded between individuals who are family members or close relatives of each other, then income in the form of donated property is exempt from taxation (clause 18.

1 Article 217 of the Tax Code). The Family Code contains an exhaustive list of such persons. Unfortunately, your grandfather's sister is not one of them. In this regard, the tax service rightfully demanded that you provide an income statement for 2014 and pay personal income tax in the amount of 13 percent of the value of the real estate donated to you.

an extract from the house register about registered citizens in the residential premises, if it is the object of a gift; this certificate is needed so that the recipient knows who is registered in the housing or that there are no registered persons in it;
a notarized power of attorney for the person who represents one of the parties to the agreement, indicating the donee and the exact name of the real estate to be donated (if such a situation occurs);
permission from the guardianship and trusteeship authorities if the donee is a minor or incompetent citizen.

We invite you to read: Validity periods for certificates

This list is not complete, since in each specific case other documents and certificates may be additionally needed.

It should not exceed or be less than the market value by more than 20%. Market value is the average price of similar objects at the time of donation;

from the cadastral value. In 2021, the value of property for taxation cannot be lower than 70% of the cadastral value. That is why this indicator is extremely important.

Is there a tax for relatives when donating real estate? Close relatives of the donor are not subject to taxation. Persons who are related to the donor do not pay tax:

children and parents;
spouse;
grandchildren, granddaughters, grandparents;
brothers and sisters.

An exhaustive list of close relatives is established by the Family Code of Russia. Thus, a real estate donation agreement can be drawn up independently and with the participation of a notary.

However, the main advantage for the recipient is the receipt of the gift, and for the donor - the realization of his own desire to present the gift. Estate Gift Tax 2021 Gift tax is paid on the income that the donee receives.

The tax rate in 2021 is different for different categories of persons:

residents will pay 13% of the value of the property received as a gift. These are those who permanently reside in the territory of the Russian Federation for at least 183 days, regardless of citizenship;
a non-resident will pay 30% of the value of the gift.

The tax is calculated on the amount indicated in the assessment of the property, but it is not always carried out, so there are alternative methods of calculation:

from the value specified in the donation agreement. However, in 2021 it is first compared with the cadastral and market value.

What documents are needed to formalize the donation of a commercial real estate property? The donation agreement must indicate the value of the real estate that is being donated.

If you are giving real estate as a gift to a person who is not a member of your family or close relative, or a business organization, you will definitely need to document the value of the property.

This can be either a certificate from the Technical Inventory Bureau (BTI), or a conclusion from a professional appraiser - based on one or another document, the tax will subsequently be calculated, since the new owner of the property has an obligation to pay tax. Family members and close relatives - spouses, parents, children (including adopted children), grandparents, grandchildren, full and half (who have a common father and mother) brothers and sisters - are exempt from paying the tax.