New rules for taxing personal income tax on income from the sale of real estate. The new rules for granting property tax deductions were discussed during an interview with Art 217.1 of the Tax Code of the Russian Federation in a new edition
New edition Art. 217.1 of the Tax Code of the Russian Federation
1. Exemption from taxation of incomes indicated in received by individuals for the relevant tax period, as well as the determination of the tax base for the sale of real estate, is carried out taking into account the specifics established by this article.
2. Unless otherwise established by this article, the income received by a taxpayer from the sale of an immovable property object shall be exempt from taxation, provided that such an object was owned by the taxpayer during the minimum deadline for possession of the immovable property object and more.
For the purposes of this paragraph and paragraph 3 of this article, in the event of the sale of residential premises or a share (shares) in it, provided for ownership in exchange for the vacated residential premises or share (s) in it in connection with the implementation of the housing renovation program in the city of Moscow, when calculating the minimum time limit for the possession of a residential property or a share (stakes) in it that is being sold, the period of ownership of such residential premises or a share (stakes) in it by the taxpayer shall be included in the period of such taxpayer's ownership of the vacated residential premises or share (stakes) in it.
When calculating the minimum time limit for ownership of a dwelling or shares (shares) in it, provided to the taxpayer for ownership in connection with the implementation of the housing renovation program in the city of Moscow, the provisions of paragraph 3 of this article shall apply if the ownership of the property released during the implementation of the specified program the residential premises or a share (shares) in it was received subject to the observance of at least one of the conditions provided for in paragraph 3 of this article.
3. For the purposes of this Article, the minimum time limit for holding an immovable property object is three years for immovable property objects in respect of which at least one of the following conditions is met:
1) the right of ownership to an object of immovable property was received by the taxpayer by way of inheritance or under a gift agreement from an individual recognized as a family member and (or) close relative of this taxpayer in accordance with the Family Code of the Russian Federation;
2) the right of ownership to the immovable property was obtained by the taxpayer as a result of privatization;
3) the right of ownership to an object of immovable property was obtained by the taxpayer - the payer of rent as a result of the transfer of property under a life maintenance agreement with a dependent.
4. In cases not specified in paragraph 3 of this article, the minimum time limit for possession of an immovable property is five years.
5. If the taxpayer's income from the sale of a real estate object is less than the cadastral value of this object as of January 1 of the year in which the state registration of the transfer of ownership of the real estate object being sold, multiplied by a reduction factor of 0.7, in For the purposes of taxation, the taxpayer's income from the sale of the specified object is taken equal to the cadastral value of this object as of January 1 of the year in which the state registration of the transfer of ownership of the relevant real estate object was carried out, multiplied by a reduction factor of 0.7.
If the cadastral value of the immovable property specified in this paragraph is not determined as of January 1 of the year in which the state registration of the transfer of ownership of the specified object was carried out, the provisions of this paragraph shall not apply.
6. The law of the constituent entity of the Russian Federation may reduce to zero for all or certain categories of taxpayers and (or) real estate objects:
1) the minimum deadline for the possession of an immovable property specified in paragraph 4 of this article;
2) the size of the reduction factor specified in paragraph 5 of this article.
1. Exemption from taxation of income specified in paragraph two of clause 17.1 of Article 217 of this Code received by individuals who are tax residents of the Russian Federation for the relevant tax period, as well as the determination of the tax base for the sale of real estate, is carried out taking into account the specifics established by this article .
2. Unless otherwise established by this article, the income received by a taxpayer from the sale of an immovable property object shall be exempt from taxation, provided that such an object was owned by the taxpayer during the minimum deadline for possession of the immovable property object and more.
3. For the purposes of this Article, the minimum time limit for holding an immovable property object is three years for immovable property objects in respect of which at least one of the following conditions is met:
- 1) the right of ownership to an object of immovable property was received by the taxpayer by way of inheritance or under a gift agreement from an individual recognized as a family member and (or) close relative of this taxpayer in accordance with the Family Code of the Russian Federation;
- 2) the right of ownership to the immovable property was obtained by the taxpayer as a result of privatization;
- 3) the right of ownership to an object of immovable property was obtained by the taxpayer - the payer of rent as a result of the transfer of property under a life maintenance agreement with a dependent.
4. In cases not specified in paragraph 3 of this article, the minimum time limit for possession of an immovable property is five years.
5. If the taxpayer's income from the sale of a real estate object is less than the cadastral value of this object as of January 1 of the year in which the state registration of the transfer of ownership of the real estate object being sold, multiplied by a reduction factor of 0.7, in For the purposes of taxation, the taxpayer's income from the sale of the specified object is taken equal to the cadastral value of this object as of January 1 of the year in which the state registration of the transfer of ownership of the relevant real estate object was carried out, multiplied by a reduction factor of 0.7.
If the cadastral value of the immovable property specified in this paragraph is not determined as of January 1 of the year in which the state registration of the transfer of ownership of the specified object was carried out, the provisions of this paragraph shall not apply.
6. The law of the constituent entity of the Russian Federation may reduce to zero for all or certain categories of taxpayers and (or) real estate objects:
- 1) the minimum deadline for the possession of an immovable property specified in paragraph 4 of this article;
- 2) the size of the reduction factor specified in paragraph 5 of this article.
Is a transaction for the sale of non-residential property subject to personal income tax? Is it possible to apply clause 4 of Article 217.1 of the Tax Code of the Russian Federation when taxing a transaction?
In 2017, he sold non-residential real estate acquired more than five years ago, before being registered as a deal. The amount of the transaction exceeds 1 million rubles. The non-residential real estate object was not used in business activities during the entire time it was owned by an individual entrepreneur.
After considering the issue, we came to the following conclusion:
Income of an individual entrepreneur from the sale of real estate not used in business activities, in this situation, is exempt from personal income tax.
Art. 217.1 of the Tax Code of the Russian Federation came into force on 01/01/2016 and applies to real estate objects acquired into ownership after 01/01/2016. Accordingly, this article does not apply to the situation under consideration.
Rationale for the conclusion:
Income from the sale of real estate and other property that is located on the territory of the Russian Federation and belongs to an individual is not subject to personal income tax (clause 5, clause 1, article 208 of the Tax Code of the Russian Federation, article 209 of the Tax Code of the Russian Federation, clause 1 of article 210 of the Tax Code of the Russian Federation) . Based on paragraph 1 of Art. 224 of the Tax Code of the Russian Federation, income from the sale of property received by an individual - a tax resident of the Russian Federation, is subject to personal income tax at a rate of 13%.
The term of ownership of real estate in this situation is counted from the date of right to the property (clause 1 of article 131 and clause 2 of article 223 of the Civil Code of the Russian Federation; part 1 of article 28 of the Federal Law of July 13, 2015 N 218-FZ "On state registration of real estate "; parts 1, 7, article 21 of the Federal Law of July 3, 2016 N 360-FZ "On Amendments to Certain Legislative Acts of the Russian Federation").
In this situation, the IP purchased the property more than five years ago and sells it in 2017.
Federal Law No. 382-FZ of November 29, 2014 (hereinafter referred to as Law No. 382-FZ) amended Chapter 23 of the Tax Code of the Russian Federation, which affected the procedure for taxing income from sales, including real estate. At the same time, the procedure for taxing income from the sale of real estate provided for by Law N 382-FZ began to be applied to real estate objects acquired into ownership after January 1, 2016 (clause 3, article 4 of Law N 382-FZ). See also letters of the Ministry of Finance of Russia dated 10/06/2016 N 03-04-05/58170, dated 12/30/2014 N 03-04-05/68684, dated 12/29/2014 N 03-04-05/68339, paragraph 2 of the letter of the Federal Tax Service on region dated 03.12.2014 N 2.13-31/ [email protected]"On changes in the taxation of property and income of individuals".
Therefore, in the case under consideration, when determining taxable income from the sale of real estate in 2016, it is necessary to be guided by the norms of Chapter 23 of the Tax Code of the Russian Federation in the edition that was in force before the adoption of Law N 382-FZ (hereinafter referred to as the old version) (see also letters from the Ministry of Finance of Russia dated February 19, 2016 N 03-04-05/9364 and dated 01/21/2016 N 03-04-05/2050).
Article 217 of the Tax Code of the Russian Federation (in the old version) establishes a list of income from the sale of its own personal income tax exempt from taxation. These include, in particular, income received by individuals who are tax residents of the Russian Federation for the relevant tax period from the sale of residential houses, apartments, rooms, including residential premises, dachas, garden houses or shares in the said property, owned by the taxpayer three years or more, as well as when selling other property owned by the taxpayer for three years or more.
It is clear that if an individual entrepreneur sells real estate acquired more than five years ago, the period of ownership of this property at the date of sale in 2017 will certainly be more than three years (clause 17.1 of article 217 of the Tax Code of the Russian Federation).
We come to the conclusion that the income of individual entrepreneurs from the sale of real estate not used in business activities, in this situation, is exempt from personal income tax.
We note that the Art. 217.1 of the Tax Code of the Russian Federation was put into effect on January 1, 2016 by Law N 382-FZ and applies to real estate objects acquired into ownership after January 1, 2016 (clause 3, article 4 of Law N 382-FZ). Accordingly, this article does not apply to the situation under consideration.
However, an interesting question arises: if the income of an individual entrepreneur from the sale of real estate in this situation is exempt from personal income tax, then should not the income from the sale of real estate be taxed in connection with the application of the simplified taxation system (STS)?
As you know, to income received from the sale of real estate in connection with the implementation of entrepreneurial activities, the provisions of clause 17.1 of Art. 217 of the Tax Code of the Russian Federation, as well as the provisions of Art. 217.1 of the Tax Code of the Russian Federation do not apply (letter of the Ministry of Finance of Russia dated November 23, 2016 N 03-11-11 / 69180). Moreover, the taxpayer is not entitled to reduce the amount of his personal income taxable income received from the sale of real estate that was used in entrepreneurial activities by the amount of actually incurred and documented expenses associated with the acquisition of this property (letter of the Ministry of Finance of Russia dated February 28 .2017 N 03-04-05/11261).
In accordance with paragraph 1 of Art. 346.15 of the Tax Code of the Russian Federation, when determining the object of taxation of an individual entrepreneur on the simplified tax system, takes into account sales revenues determined in accordance with Art. 249 of the Tax Code of the Russian Federation, and non-operating income, determined under Art. 250 of the Tax Code of the Russian Federation.
According to the financial authorities, if real estate was used in the entrepreneurial activity of a merchant, then the income from its sale is taken into account as income when determining the base for tax paid in connection with the application of the simplified tax system. Income received from the sale of real estate that was not used by an individual entrepreneur for the purpose of carrying out entrepreneurial activities, and also if an individual entrepreneur did not indicate during registration the type of activity related to the sale of real estate, is subject to personal income tax in the manner established by Chapter 23 of the Tax Code of the Russian Federation (letters from the Ministry of Finance Russia dated 07/18/2016 N 03-11-11/41910, dated 06/10/2015 N 03-11-11/33583, dated 01/20/2014 N 03-11-11/1390, dated 10/07/2013 N 03-11-11 /41798).
The practice is similar. According to the courts, the tax legislation does not link the concept of "individual entrepreneur" with the implementation of a certain type of activity. An individual registered as an individual entrepreneur and conducting entrepreneurial activities is considered as an entrepreneur for tax purposes, regardless of what activity he is engaged in. Therefore, all types of activities carried out by an individual entrepreneur after state registration should be considered as entrepreneurial (decree of the Arbitration Court of the Volga District dated January 15, 2015 N F06-18820 / 2013 in case N A72-3193 / 2014).
If the property was used by the seller (at the time of the sale or shortly before it) in their business activities, the courts take the side of the tax authorities and attribute the sale price to income from activities transferred to the USN (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 06/18/2013 N 18384/12, resolution Arbitration Court of the Ural District dated 09/01/2015 N F09-6258 / 15 in case N A76-31620 / 2014, decision of the FAS of the North-Western District of 12/18/2012 N A05-5609 / 2011, decision of the FAS of the Ural District of 04/03/2012 N F09- 1610/12).
In the case under consideration, real estate has never been used in the entrepreneurial activity of an individual entrepreneur, therefore, in our opinion, income from its sale should not be taxed in connection with the application of the simplified tax system.
Prepared answer:
Legal Consulting Service Expert GARANT
auditor, member of the Russian Union Mikhail Bulantsov
Response quality control:
Reviewer of the Legal Consulting Service GARANT
auditor, member of the RAMI Vyacheslav
Article 217.1. Features of exemption from taxation of income from the sale of real estate objects
1. Exemption from taxation of the income specified in the second paragraph of clause 17.1 of Article 217 of this Code received by individuals for the relevant tax period, as well as the determination of the tax base for the sale of real estate, is carried out taking into account the specifics established by this article.
2. Unless otherwise established by this article, the income received by a taxpayer from the sale of an immovable property object shall be exempt from taxation, provided that such an object was owned by the taxpayer during the minimum deadline for possession of the immovable property object and more.
For the purposes of this paragraph and paragraph 3 of this article, in the event of the sale of residential premises or a share (shares) in it, provided for ownership in exchange for the vacated residential premises or share (s) in it in connection with the implementation of the housing renovation program in the city of Moscow, when calculating the minimum time limit for the possession of a residential property or a share (stakes) in it that is being sold, the period of ownership of such residential premises or a share (stakes) in it by the taxpayer shall be included in the period of such taxpayer's ownership of the vacated residential premises or share (stakes) in it.
When calculating the minimum time limit for ownership of a dwelling or shares (shares) in it, provided to the taxpayer for ownership in connection with the implementation of the housing renovation program in the city of Moscow, the provisions of paragraph 3 of this article shall apply if the ownership of the property released during the implementation of the specified program the residential premises or a share (shares) in it was received subject to the observance of at least one of the conditions provided for in paragraph 3 of this article.
3. For the purposes of this Article, the minimum time limit for holding an immovable property object is three years for immovable property objects in respect of which at least one of the following conditions is met:
1) the right of ownership to an object of immovable property was received by the taxpayer by way of inheritance or under a gift agreement from an individual recognized as a family member and (or) close relative of this taxpayer in accordance with the Family Code of the Russian Federation;
2) the right of ownership to the immovable property was obtained by the taxpayer as a result of privatization;
3) the right of ownership to an object of immovable property has been obtained by the taxpayer - the payer of rent as a result of the transfer of property under a life maintenance agreement with a dependent;
4) owned by a taxpayer (including joint property of spouses) as of the date of state registration of the transfer of ownership from a taxpayer to a buyer to a sold real estate object in the form of a room, apartment, residential building, part of an apartment, part of a residential building (hereinafter in this subparagraph - residential premises ) or a share in the ownership of a dwelling is not located in another dwelling (a share in the ownership of a dwelling).
At the same time, for the purposes of this subparagraph, residential premises (share in the ownership of residential premises) acquired (acquired) in the ownership of the taxpayer and (or) his spouse (wife) within 90 calendar days prior to the date of state registration of the transfer of ownership of the sold residential premises (sold share in the ownership of residential premises) from the taxpayer to the buyer.
Subject to compliance with the conditions established by this subparagraph in respect of a dwelling (a share in the ownership of a dwelling), the provisions of this paragraph shall apply to the land plot on which such a dwelling is located (a share in the ownership of a land plot associated with a share in the ownership of such a dwelling). residential premises), and economic buildings and (or) structures located on the specified land plot.
1. Exemption from taxation of the income specified in the second paragraph of clause 17.1 of this Code received by individuals who are tax residents of the Russian Federation for the relevant tax period, as well as the determination of the tax base for the sale of real estate, is carried out taking into account the specifics established by this article.
2. Unless otherwise established by this article, the income received by a taxpayer from the sale of an immovable property object shall be exempt from taxation, provided that such an object was owned by the taxpayer during the minimum deadline for possession of the immovable property object and more.
3. For the purposes of this Article, the minimum time limit for holding an immovable property object is three years for immovable property objects in respect of which at least one of the following conditions is met:
1) the right of ownership to an object of immovable property was received by the taxpayer by way of inheritance or under a gift agreement from an individual recognized as a family member and (or) close relative of this taxpayer in accordance with the Family Code of the Russian Federation;
2) the right of ownership to the immovable property was obtained by the taxpayer as a result of privatization;
3) the right of ownership to an object of immovable property was obtained by the taxpayer - the payer of rent as a result of the transfer of property under a life maintenance agreement with a dependent.
4. In cases not specified in paragraph 3 of this article, the minimum time limit for possession of an immovable property is five years.
5. If the taxpayer's income from the sale of a real estate object is less than the cadastral value of this object as of January 1 of the year in which the state registration of the transfer of ownership of the real estate object being sold, multiplied by a reduction factor of 0.7, in For the purposes of taxation, the taxpayer's income from the sale of the specified object is taken equal to the cadastral value of this object as of January 1 of the year in which the state registration of the transfer of ownership of the relevant real estate object was carried out, multiplied by a reduction factor of 0.7.
If the cadastral value of the immovable property specified in this paragraph is not determined as of January 1 of the year in which the state registration of the transfer of ownership of the specified object was carried out, the provisions of this paragraph shall not apply.
6. The law of the constituent entity of the Russian Federation may reduce to zero for all or certain categories of taxpayers and (or) real estate objects:
1) the minimum deadline for the possession of an immovable property specified in paragraph 4 of this article;
2) the size of the reduction factor specified in paragraph 5 of this article.
Tax Code of the Russian Federation Article 217.1 Features of exemption from taxation of income from the sale of real estate
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