The responsibilities of land sellers include the payment of personal income tax (NDFL). However, certain categories of persons may be exempt from its collection, while others may receive significant deductions.

Please note that all provisions described in this article are still relevant today. Amendments regarding the tax on the sale of land are not planned in 2019.

Personal income tax payers

Individuals who have owned this real estate for less than five years must pay tax on dachas. However, for some categories of land owners this period has been reduced to three years. Such persons include:

• owners of privatized plots;
• owners of plots received as a result of fulfilling an obligation under a lifelong maintenance agreement with dependents;
• owners of plots received as a result of a gift or inheritance from a close family member.

From the above it follows that individuals who have ownership rights to the land being sold are exempt from paying tax. more than 5 years, and in certain cases - more than three years.

It is important to note that personal income tax is imposed on the sale of only those land plots that are located on the territory of the Russian Federation.

Until 01/01/2016, the period of ownership of property, after which the payer had the right not to pay tax when selling it, was 3 years. This period was established for all categories of owners without exception. From January 1, 2016, this period was extended for all categories of citizens with some exceptions.

Legislative acts that regulate these legal relations:

• Tax Code of the Russian Federation.
• Federal Law of November 29, 2014 No. 382.

Last changes

According to No. 382-FZ, the procedure for paying taxes from individuals when selling real estate has changed, and the law also detailed the cases in which an individual may be exempt from paying taxes.

If before the bill came into force the owner could sell his property without paying tax within three years, now a minimum of five years is required.

This period is counted from the moment of purchase of housing, that is immediately after signing the purchase and sale agreement.

If the property was acquired before the law came into force (before December 31, 2015), then the old rules apply to it. Therefore, the owner can sell the property without paying tax after three years of ownership. If the property was purchased after the law came into force, then only after five.

Depending on the region, the period may vary.

If the property was not acquired, but inherited, then the period is counted from the date of inheritance.

If the property is sold for more than it was purchased, the tax levied will be 13% of the value of the property.

Sales tax is not charged in cases where:

1. The only living space was sold specifically to purchase another.
2. If the object has been owned for more than three years and its value does not exceed 5 million rubles.
3. If the price at which the living space is sold is less than or equal to the one at which it was purchased. To do this, you must provide the relevant documents.

The owner may be exempt from paying taxes after owning an object for three years, if it was acquired by:

1. As an inheritance or was donated by one of the close relatives.
2. Was .
3. Based on a maintenance or dependency agreement.

Tax amount

The amount that the owner of the land plot will have to pay can be calculated using the following formula:

Income received from the sale of land

The amount of income is determined based on the sale price of the property specified in the contract. Moreover, from 01/01/2016, on the basis of the above-mentioned Federal Law, regulations were introduced aimed at preventing the undervaluation of the site in order to reduce the amount of tax.

In accordance with these rules, the taxable value of a land plot cannot be lower than the cadastral value multiplied by 0.7. The cadastral value of a land plot can be viewed in its cadastral passport.

So, if the cadastral value of a plot is 6,700,000 rubles, then the minimum amount that will be taxed upon its sale is 4,690,000 rubles (6,700,000 * 0.7). Even if the sale of real estate is carried out at a lower cost, tax must be paid on income equal to 4,690,000 rubles.

Tax rate

The personal income tax rate is directly dependent on whether the seller is recognized as a resident of the Russian Federation. Staying on the territory of the Russian Federation for more than 183 calendar days a year allows a person to be considered a resident. The remaining persons are non-residents.

It is important to note that obtaining non-resident status does not depend only on his actual stay within the territory of the Russian Federation. Each issue is resolved individually, including taking into account the presence of permanent residence in the country.

For residents of the Russian Federation, the tax rate is set at 13%. For non-residents it increases to 30%.

Thus, if a plot of land is sold for 7,420,000 rubles, then the amount of personal income tax will be equal to 964,000 rubles. for residents (7,420,000 * 0.13) and 2,260,000 rubles. for non-residents (7,420,000 * 0.3).

Tax deductions

In this regard, nothing has changed in 2019.

	Property deduction	Expense deduction
When is it used?	For owners who have owned a land plot for less than 5 years	Allows you to subtract the costs of selling it from the value of the land (most often this is the cost of purchasing the property)
The amount of the deduction	1,000,000 rub.	Actual costs supported by documents (for example, a bank statement or a receipt from the recipient of funds)
Calculation example	Let’s assume that a plot of land that the owner has owned for 4 years is sold for 4,340,000 rubles. Then the tax amount for a resident will be calculated as follows: (4,340,000 – 1,000,000) × 0.13 = 434,200 rubles	Let's assume that the plot is put up for sale at a cost of 3,500,000 rubles, and the owner purchased it for 2,990,000 rubles. The personal income tax amount for a resident will be calculated as follows: (3,500,000 – 2,990,000) × 0.13 = 66,300 rub.

It is important to note that if the land plot is in shared ownership, then when it is sold under one contract, the property deduction can be applied only once.

If the owners sell their shares separately, then each of them has the right to apply a deduction.

Timing and procedure for collecting tax

By April 30 of the year following the year of sale of the land plot, the owner must submit a declaration to the tax authorities. Moreover, the payer will have to calculate the personal income tax independently.

The tax obligation must be fulfilled before July 15. Otherwise, sanctions in the form of a fine will be applied to the defaulter - 20% of the amount of income for each day of delay. The penalty for failure to submit a declaration is provided in the amount of 5%, but not less than 1000 rubles for each day of delay.

There are situations when tax authorities mistakenly send a notice of the need to pay personal income tax to individuals who, by law, are exempt from paying tax. In this case, you should simply provide the tax authorities with documents confirming your right to tax exemption.

Review of changes in video

What has the new law on taxes on land sales changed? The changes are not so significant, almost everything remains as described above, but there are important points that should be taken into account.

The individual entrepreneur applies the simplified tax system. An individual entrepreneur, as an individual, sold land plots with residential buildings built on them and submitted a tax return in form 3-NDFL. The plots were purchased before the individual was registered as an individual entrepreneur. Less than three years have passed since the acquisition of the plots. In the personal income tax return of individual entrepreneurs, tax deductions for land plots were also declared. The tax authority requires that income from the sale of plots be indicated in the declaration as the income of an individual entrepreneur, since the individual entrepreneur has a registered type of activity - the sale of land plots.
Is the tax authority's demand legal?

Having considered the issue, we came to the following conclusion:
The tax authority has the prerequisites for filing claims against individual entrepreneurs. An entrepreneur will most likely have to prove the legality of taxing income from the sale of land with personal income tax in court.

Rationale for the conclusion:
Based on the Tax Code of the Russian Federation, individual entrepreneurs using the simplified tax system take into account income from sales, as well as non-operating income, when determining the object of taxation.
The application of the simplified tax system for individual entrepreneurs provides for their exemption from the obligation to pay personal income tax in relation to income received from business activities.
The civil legislation of the Russian Federation does not divide the property of an individual into property that belongs to him exclusively as a citizen, and property that belongs to him exclusively as an individual entrepreneur (CC RF dated December 17, 1996 N 20-P). Obtaining the status of an individual entrepreneur does not separate part of a citizen’s property, since the fact of his state registration as an individual entrepreneur does not “create” him as a new separate person with separate property, and the entrepreneurial activity of a citizen is still the activity of the citizen himself.
The legislation on taxes and fees does not require individuals participating in purchase and sale transactions of property owned by them to have individual entrepreneur status.
Currently, the issue of taxation of income from the sale of real estate received by individuals registered as individual entrepreneurs and applying the simplified tax system cannot be called unambiguous, since there are different positions expressed by the financial department and tax authorities.
With regard to income from the sale of real estate that was used by individual entrepreneurs in business activities, the position of the regulatory authorities is that such income is recognized as received as part of business activities and income from its sale should be taken into account as income when determining the tax base for the tax paid in connection with the use of the simplified tax system. In other words, if an individual entrepreneur applies the simplified tax system at the time of sale of such property, he does not have the right to be guided by the provisions of the Tax Code of the Russian Federation, since such income is exempt from personal income tax on the basis of the Tax Code of the Russian Federation (see, for example, the Ministry of Finance of Russia dated January 20, 2014 N 03-11-11/ 1390, dated 10/07/2013 N, dated 07/01/2013 N, dated 02/22/2013 N, Federal Tax Service of Russia dated 05/07/2013 N). In these letters, the obligation to pay tax according to the simplified tax system does not depend either on the types of business activities specified when registering an individual entrepreneur as such, or on the status in which the individual entrepreneur acquired real estate (as an individual entrepreneur or as an individual), or on the fact use/non-use of property immediately before sale.
According to the Ministry of Finance of Russia (Ministry of Finance of Russia dated 08/22/2013 N 03-04-05/34352, dated 04/23/2013 N, dated 02/01/2012 N, dated 03/16/2011 N), income received from entrepreneurial activities is income from activities falling under the type of activity specified by the individual entrepreneur upon registration.
Other clarifications express the position that if an individual is registered as an individual entrepreneur and in accordance with the requirements of 08.08.2001 N 129-FZ “On State Registration of Legal Entities and Individual Entrepreneurs”, the types of economic activity are indicated in the Unified State Register of Legal Entities, in particular, such as “Preparation for the sale of own real estate”, “Purchase and sale of land”, then income from the sale of real estate acquired for resale, including land, is taken into account by individual entrepreneurs as part of income when determining the tax base for the tax paid in connection with application of the simplified tax system (see, for example, the Ministry of Finance of Russia dated 07/24/2015 N 03-11-11/42684, dated 06/26/2013 N, dated 08/16/2012 N, dated 05/10/2012 N, dated 03/15/2012 N). However, officials do not indicate whether these conditions must be met simultaneously.
In turn, for example, in the Ministry of Finance of Russia dated 05/24/2016 N 03-04-05/29559, dated 04/18/2016 N, dated 06/10/2015 N, dated 10/28/2013 N, dated 04/23/2013 N, it is noted that if real estate the property was used in business activities or if the individual entrepreneur declared during registration such a type of activity as the sale of real estate, then the income from its sale is taken into account as income when determining the tax base for the tax paid under the simplified tax system.
If the land plots were not used by the individual entrepreneur in business activities and the above-mentioned types of economic activity are not indicated in the Unified State Register of Legal Entities in relation to this taxpayer, then income from the sale of land plots is subject to taxation in accordance with the provisions of the Tax Code of the Russian Federation (Ministry of Finance of Russia dated April 18, 2016 N 03-11- 11/22134, dated 07/24/2015 N ).
In the analyzed situation, the individual entrepreneur, when registering, declared such type of activity as “Sale of land plots.” Therefore, we believe that there are prerequisites for income from the sale of land plots to be taken into account as income when determining the tax base for the tax paid under the simplified tax system.
Accordingly, in this case, the individual entrepreneur does not have the right to take advantage of the property tax deduction provided for by the Tax Code of the Russian Federation (Ministry of Finance of Russia dated 06.06.2013 N 03-04-05/21156, dated 07.06.2011 N, dated 04.10.2010 N, Federal Tax Service of Russia dated 22.12.2011 N).
However, it should be taken into account that the land plots were acquired by an individual before registration as an individual entrepreneur.
In this regard, we note that the financial department previously had another point of view on the issue under consideration. The Ministry of Finance of Russia dated 04.24.2008 N 03-04-05-01/131, dated 10.24.2007 N indicated that income received from the sale of non-residential premises acquired by an individual before his state registration as an individual entrepreneur and at the time of sale unused for the purpose of carrying out entrepreneurial activities, are subject to personal income tax in the manner prescribed by the Tax Code of the Russian Federation.
However, as we see, at present the emphasis in the explanations of the regulatory authorities has changed.
Judicial practice is not uniform. There are court decisions made in favor of taxpayers who decided to tax received income with personal income tax (FAS of the Ural District dated 04/03/2012 N F09-1610/12, FAS of the North-Western District dated 12/18/2012 N). In the first case, the court indicated that in the contracts for the purchase and sale of real estate there was no indication of the status of an individual as an individual entrepreneur, the amounts from the sale were received into the personal account of the individual, transactions for the sale of real estate were of a one-time nature and were not aimed at systematically generating income . In this regard, according to the judges, income is not subject to tax paid in connection with the application of the simplified tax system (see also FAS of the Ural District dated December 2, 2010 N F09-2787/10-C2).
And yet, in most cases, judges come to the conclusion that income from the sale of property used by individual entrepreneurs in business activities is taxed under the simplified tax system.
Thus, the courts take into account the purpose of the property used and subsequently sold. If the disputed real estate objects, according to their economic purpose, are not used to satisfy personal or family needs, but are intended to conduct business activities, that is, to make a profit, then the income from their sale is subject to taxation within the framework of the simplified tax system (FAS of the Volga region dated January 17, 2014 N F06 -1394/13, FAS North-Western District dated 08/15/2013 N, FAS West Siberian District dated 03/12/2013 N A27-10232/2011, FAS Volga-Vyatka District dated 05/10/2012 N A79-5243/2012).
Taking into account the above, we take the position that in the case under consideration, the tax authority had the prerequisites for filing claims against the individual entrepreneur. The legality of taxing income from the sale of land with personal income tax to individual entrepreneurs will most likely have to be proven in court.

Prepared answer:
Expert of the Legal Consulting Service GARANT
auditor, member of the MoAP Zavyalov Kirill

The answer has passed quality control

The material was prepared on the basis of individual written consultation provided as part of the Legal Consulting service.

Make sure that the cadastral number is indicated in the certificate, cadastral and boundary plans. This is a guarantee that the site is uniquely identified and has a single owner. If a number is not assigned, it may turn out that this piece of land has another owner, and, perhaps, more than one - the plot has been sold several times. Please note that the package of documents includes an extract from the Unified State Register of Rights to Real Estate and Transactions with It. This also confirms that the site is included in the registers only once. 5 If your seller is married, the package of documents for the plot must include the written consent of his spouse to sell this plot. If the seller is a minor citizen, there must be written consent to the sale of the plot from the guardianship and trusteeship authorities.

Documents for purchasing a land plot

Risk one: an unscrupulous seller. The seller (or real estate agency), pursuing the goal of quickly concluding a transaction for the purchase and sale of a land plot, may not provide all the essential details and restrictions on the use of the plot. For example:

• The discrepancy between the purpose of the land and the stated one is a very common risk when purchasing a plot of land.
  So, for example, forest lands are not subject to sale and, in this case, one can only hope to rent a plot located in a household. You can purchase a plot, but it will be impossible to carry out your plan, for example, to build a house, since your land, as it turns out, is used exclusively for agricultural land.

What documents should you check when purchasing a plot?

Attention

Timely and correctly compiled reporting is a necessary condition for the success of any small and medium-sized business. So, what documents should an individual entrepreneur have? What kind of reporting should they keep as an employer? To avoid problems, the most important thing is to know the correct answers to all these questions, and to be able to provide all the necessary data on time and in the correct format.

Important

Starting a business Compared to the various difficulties of entrepreneurial activity, registering an individual entrepreneur is a fairly simple and quick procedure. This presupposes strict adherence to the rules, upon fulfillment of which a person wishing to become a businessman acquires his coveted status within 3 days.

At first glance, it seems that the hardest part is over, and you can calmly begin to engage in your chosen activity, but, of course, this is only the beginning.

What documents need to be checked when purchasing land?

Restrictions on the disposal of land can only be established by regulatory legal acts. When purchasing a plot of land, what documents are needed to draw up an agreement and subsequent registration actions? First of all, the parties need to check the documents certifying the seller’s right to sell the land plot.

They will include:

• general civil passport of the owner of the allotment;
• notarized power of attorney, if the transaction is entrusted to a representative;
• title documents - certificate of title (if registration of rights was carried out before July 2016), extract from the Unified State Register of Real Estate (if registration actions were carried out since July 2016), certificate of inheritance, administrative act of local authorities on the provision of land ownership, etc.

What documents are needed to purchase a plot of land?

Rights to land plots are subject to mandatory state registration. In accordance with Art. 14 Federal Law of July 21, 1997

No. 122-FZ “On state registration of rights to real estate and transactions with it”, state registration of the emergence and transfer of rights to real estate is certified by a certificate of state registration of rights, and from 07/03/2016 by an extract from the Unified State Register, and from 01/01/2017. an extract from the Unified State Register of Real Estate in accordance with the Federal Law of July 13, 2015. No. 218-FZ “On state registration of real estate”.

• Refusal of a subject of the Russian Federation to purchase a land plot.

How to purchase a land plot

Info

The so-called book for accounting of business transactions, expenses and income - KUDiR. The documents required for an individual entrepreneur depend on many nuances.

The tax reporting regime is considered the easiest to understand. But it does not always turn out to be profitable. To simplify the activities of small entrepreneurs, the legislation of the Russian Federation has introduced various tax regimes. Let's look at them below. STS The most common and simplified of all regimes is the taxation system (STS), which replaces three taxes at once. The simplified tax system does not burden entrepreneurs with the need to pay assessments on property, VAT and personal income tax.

Other taxes must be paid in the manner prescribed for individual entrepreneurs under the general tax regime. The main documents that businessmen are required to maintain using the simplified tax system are the tax return and KUDiR.

did not you find what you were looking for?

You can buy a plot on the primary and secondary markets. In the first case, the above documents will be enough to complete the transaction, but when purchasing from an individual, you will need a number of additional papers.

This list includes a notarized permission from the owner's spouse to sell and a similar permission from the client's spouse to buy, if both parties to the contract are married. The seller should also take certificates from psychoneurological and narcological dispensaries (PND and ND), since any transaction made by a person registered with these dispensaries may be declared invalid.

And it doesn’t matter that it’s not the apartment that’s being sold, but the land. But clients who purchase country real estate often forget about this, and in fact lose their hard-earned money.

By the way, the court won’t even look at your claim without these certificates, so it’s better to play it safe.

What you need to know when buying a plot or country house

The best option for the purpose of the acquired land is individual housing construction (IHC).

• Quite often, the seller sells land obtained as a result of squatting, and after a transaction to purchase a land plot, you risk being burdened with a complicated procedure for registering ownership of the acquired land plot. If you have not been provided with all the necessary documents confirming the seller’s ownership of the plot (and the real estate objects present on it), the best solution would be to refuse such a purchase.
• The land plot may be under arrest, prohibition, etc., which the seller may not inform you about.
• There is a risk of multiple sales of the same land plot.

What documents to check when purchasing a plot from an individual entrepreneur

How to check the authenticity of documents for a purchased land plot When purchasing real estate, the buyer must check the legal purity of the transaction and the property itself that he plans to purchase. In relation to land plots, the verification algorithm will consist of the following actions:

• a confirming document for the right to dispose of land is required (a certificate of registration of a land plot or an extract from the Unified State Register of Real Estate will be the appropriate document for completing the transaction);
• It is required to obtain an extract from the Unified State Register of Real Estate with the main characteristics of the allotment (borders, area, etc.).

• Copies of title agreements for objects of entrepreneurial activity of individual entrepreneurs.
• Notification of the possibility of applying the simplified tax system (if available).
• Agreement for a bank account.
• GRN for making changes to the Unified State Register of Individual Entrepreneurs.
• Agreement on the use of the Bank-Client system (if available).
• Certificate from the FSS.
• Certificate from the Pension Fund of Russia as an employer.
• Copies of rental agreements for equipment used by the individual entrepreneur.
• Copies of lease agreements for the premises where the individual entrepreneur operates.
• Acts of inspections by certain authorities.
• IP details form.

Be that as it may, before preparing a complete list of all documents, you need to immediately clearly decide which method of taxation is most convenient for you, as well as whether your company plans to organize workplaces.

Can an individual entrepreneur (types of activity - purchase and sale of land plots), who received the status of an entrepreneur at the end of 2012, sell a land plot (acquired by him as an individual at the beginning of 2012) in 2013, sell this land plot as an entrepreneur?

An entrepreneur has the right to sell a plot of land that he acquired as an individual. Current legislation does not prohibit this. The property of an individual and an entrepreneur is inseparable. Therefore, the sale of property acquired as an individual by an entrepreneur is significant only for tax purposes. That is, the entrepreneur will pay taxes on income from the sale of property in accordance with the taxation system adopted by him.

The rationale for this position is given below in the materials of the Glavbukh System vip version

1. Article: An entrepreneur sells his own real estate

What to do: pay tax on the income received according to the simplified tax system if property that was used in business activities is sold. If the property was used for personal purposes and was owned for less than three years, then you need to pay personal income tax.

An entrepreneur as an individual can buy and sell his property. At the same time, he needs to evaluate whether such a sale is a way to generate income from the business. Or the sale of real estate is due to the personal needs of the entrepreneur as an individual. When making a choice in favor of one or another option, you need to pay attention to some nuances, which we want to talk about.*

Case No. 1. Sale of property as part of business

To begin with, let us recall the following. To engage in business, an individual must register as an individual entrepreneur and indicate the type of activity that he will engage in.

Receipts from this type of activity will be income received from business activities. Accordingly, if an entrepreneur applies the simplified tax system, and the income received from the sale of real estate relates to entrepreneurial activity, then they will be taxed within the framework of the simplified tax system (Article 346.15 of the Tax Code of the Russian Federation). And at the same time, these incomes will be exempt from personal income tax (clause 24, article 217 of the Tax Code of the Russian Federation). The Russian Ministry of Finance takes a similar position in letter dated August 12, 2010 No. 03-04-05/3-452.

It does not matter whether a real profit was made from the sale or not. The main thing is the very fact that actions are aimed at making a profit from the sale of property. This is confirmed by the judges (resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 16, 2010 No. 14009/09 and the Federal Antimonopoly Service of the North-Western District dated March 15, 2012 No. A05-5609/2011).*

When deciding whether the sale of real estate is a business activity, you need to pay attention to what OKVED code is entered by the entrepreneur into the Unified State Register of Individual Entrepreneurs.

For example, during registration, such types of activities as “preparation for the sale of one’s own real estate” and “purchase and sale of one’s own real estate” are indicated (OKVED codes 70.11 and 70.12, respectively). Then income from the sale of real estate can be considered as revenue from business activities and subject to a “simplified” tax (clause 1 of Article 346.15 of the Tax Code of the Russian Federation). A similar opinion was expressed in letters of the Ministry of Finance of Russia dated 09/08/2011 No. 03-11-11/226 and dated 12/05/2011 No. 03-11-11/309.

If only one code 70.11 “preparation for the sale of one’s own real estate” is indicated in the Unified State Register of Individual Entrepreneurs, then the proceeds from the sale of real estate are no longer business income. This means that it will be subject to personal income tax at a rate of 13% (clause 1 of Article 224 of the Tax Code of the Russian Federation).

Let us note that an entrepreneur is not prohibited from making changes to the Unified State Register of Individual Entrepreneurs and adding new types of activities by reporting this to the tax office (Clause 5, Article 5 of the Federal Law of 08.08.2001 No. 129-FZ). Therefore, if necessary, you can first add another type of activity, and then sell the property.

You can do it differently. Immediately upon registration, instead of, for example, two codes 70.11 and 70.12, indicate one - the more generalized code 70.1 “preparation for sale, purchase and sale of own real estate.” Then the question of whether this type of activity is taxed under the simplified tax system or not will not arise.

Case No. 2. Sale of real estate that is no longer used in business activities

It is also possible that an entrepreneur stops using his own real estate in business and sells it. For example, when registering, an entrepreneur indicated a type of activity such as renting out property. Accordingly, he received income from this type of activity and they were taxed according to the simplified tax system (clause 1 of article 346.15 of the Tax Code of the Russian Federation).

If the businessman then decides to sell the premises itself, then the income received will not be taken into account during the “simplified” procedure (letter of the Federal Tax Service of Russia dated August 19, 2009 No. 3-5-04/1290@). Moreover, as the tax authorities indicated, the entrepreneur in this case can receive a property deduction for personal income tax. There are also court decisions that support this point of view (see, for example, the resolution of the Federal Antimonopoly Service of the North-Western District dated December 21, 2011 No. A13-2339/2011).

Thus, if an entrepreneur, before selling property as part of a business activity, stopped using it in business, he will have to pay personal income tax on the proceeds.

Case No. 3. Sale of a personal apartment

And finally, let's look at the third option. An entrepreneur sells real estate, for example his own apartment, which was used for personal purposes. Then he, like any other individual, needs to pay the appropriate amount of personal income tax or apply a property deduction subject to the requirements of Article 220 of the Tax Code of the Russian Federation.

According to the general rule, personal income tax is assessed on income received from the sale of property located on the territory of the Russian Federation, as well as outside its borders (subclause 5, clause 1, subclause 5, clause 3, article 208 and clause 1, article 209 of the Tax Code of the Russian Federation). Moreover, if the property has been owned by an individual for three years or more, then there is no need to pay personal income tax (subclause 2, clause 1, article 228 and clause 17.1, article 217 of the Tax Code of the Russian Federation). If a citizen has owned real estate for less than three years, then on the income from the sale of such real estate he will have to pay personal income tax at a rate of 13% (clause 1 of Article 224 of the Tax Code of the Russian Federation). As a rule, an individual independently calculates and pays tax, and at the end of the year in which income from the sale was received, submits a declaration in Form 3-NDFL.

In this case, the entrepreneur has the right to receive a property deduction (clause 3 of Article 210 of the Tax Code of the Russian Federation). That is, reduce the amount on which personal income tax will be charged. It can be reduced by the amount received from the buyer, but not more than 1 million rubles. (Subclause 1, Clause 1, Article 220 of the Tax Code of the Russian Federation).

Instead of a deduction, you can use another right. Namely, reduce the income from the sale of real estate by the amount that was paid for it at the time. This is convenient if the property was purchased and not received, for example, by inheritance. In this case, the costs must be documented.

G. N. Afinogenova

Chief specialist-expert of the department of methodology, automation of tax control and organization of interdepartmental interaction of the Control Directorate of the Federal Tax Service of Russia

2. Article: Commercial real estate is sold by individual entrepreneurs: how is it more profitable?

The peculiarity of individual entrepreneurial activity of citizens is that it is impossible to clearly distinguish between property used for household purposes and for profit. Accounting for income from the sale of property depends on whether this income is classified as business or personal. If income is considered to be received from business activities, then, according to paragraph 1 of Article 346.15 of the Tax Code of the Russian Federation, it should be included in the tax base under the simplified tax system. The personal income of entrepreneurs, like all other individuals, is subject to personal income tax according to the rules of Chapter 23 of the Tax Code of the Russian Federation.*

Let us note right away: if the property has been owned for more than three years, it is better for an entrepreneur applying the simplified tax system to classify the income from its sale as personal. Let's explain why.

If a businessman applies the simplified tax system to an object of income, he will pay a tax at a rate of 6% on all income from the sale without taking into account the costs of acquiring real estate. With an object of income minus expenses, in some cases it will be necessary to take into account not only income from the sale of property that was part of fixed assets, but also to adjust previously recorded expenses. Let us remind you that, according to paragraph 3 of Article 346.16 of the Tax Code of the Russian Federation, when selling a fixed asset before the expiration of three years from the date of accounting for the costs of its acquisition (for objects with a useful life of more than 15 years - before the expiration of 10 years from the date of purchase), the tax base for the entire period must be recalculated its use, additional taxes and penalties will be charged. In this case, only the amount of depreciation accrued according to the rules of Chapter 25 of the Tax Code of the Russian Federation should be included in expenses. If the property was not part of fixed assets, but was accounted for as a purchased item, then the tax base includes income from the sale and purchase expenses.

If income from the sale of property is considered personal, it is subject to personal income tax (according to paragraph 3 of Article 346.11 of the Tax Code of the Russian Federation, “simplers” do not pay personal income tax only in relation to business income). And paragraph 17.1 of Article 217 of the Tax Code of the Russian Federation states that when selling property that has been owned for three years or more, income is exempt from paying personal income tax. However, the provisions of this paragraph do not apply to income from the sale of property used in business activities. Let us recall that this paragraph was put into effect by Federal Law No. 202-FZ of July 19, 2009. Previously, in respect of income from the sale of property owned by an individual for three or more years, a property tax deduction was provided equal to the amount of income from the sale of this property (Article 220 of the Tax Code of the Russian Federation as amended in force before January 1, 2010).

V. V. Danilin

Leading tax lawyer at KUZMINYKH, EVSEEV & PARTNERS LLC