Translated material
Family business
The highest paid spouse can receive a property deduction
Disputes about the ownership of property acquired jointly during marriage occur not only in divorces. Tax officials sometimes delve into the intricacies of family law. In the interpretation of the Federal Tax Service, the property of spouses is called jointly acquired only if it was acquired before a certain date. Based on this thesis, the fiscal authorities of the Voronezh region decided that the husband does not have the right to take advantage of the property tax deduction if he registered the purchased apartment in his wife’s name. Yesterday, the Presidium of the Supreme Arbitration Court (SAC) ruled that the spouse has the right to file a deduction on his own behalf for real estate purchased as a gift for his wife.In 2004, Voronezh businessman Andrei Lytkin submitted an income tax return to the tax office with an application to provide him with a property deduction for the purchased apartment. The issue price was just over 30 thousand rubles. - this is exactly the amount the apartment owner could receive back from the budget.
However, based on the results of a desk audit, the tax inspectorate not only denied him the deduction, but also assessed an additional 90 thousand rubles. tax plus penalties and fines for late payment. The entrepreneur refused to comply with these demands of the tax authorities, and the case went to the appeal courts.
The tax authorities motivated their position by the fact that the purchased apartment was registered in the name of the entrepreneur’s wife, and not in his name. Entrepreneur Lytkin did not deny this, assuring in his complaint to the court that there was no contradiction with the norms of the law. The money spent on the purchase of the apartment, as stated in the complaint filed by him, was earned by him, while his wife had small incomes. And according to the logic of family law, property acquired during marriage is common, and the spouses bear the costs of acquiring it together. Accordingly, either spouse has the right to include expenses incurred by the other spouse in property deductions, he justified his position.
Fiscal officials refer to the fact that the provisions of the Family Code on jointly acquired property apply only to property acquired before March 1996, namely until the code came into force. Property acquired after this date, according to fiscal officials, should be considered the property of one of the spouses, unless the right of joint ownership of the spouses is proven. However, the judicial panel of the Supreme Arbitration Court, sending the case to the last supervisory arbitration authority in Russia - the Presidium of the Supreme Arbitration Court, considered these arguments of the fiscal authorities untenable.
The Civil Code, as stated in the definition of the Supreme Arbitration Court, considers property acquired during marriage to be common in all cases, with the exception of situations where a marriage contract has been concluded between the spouses, providing for a different regime. The same is said in the resolution of the plenum of the Supreme Court in 1998. A similar rule applies in Art. 33 of the Family Code. And Article 34 says that it does not matter which spouse the property is registered in, or which spouse contributed the money. Moreover, a year ago, even the Ministry of Finance drew attention to the problem, providing clarification on the procedure for applying the deduction to jointly acquired property.
The Presidium of the Supreme Arbitration Court recognized the position of the Voronezh tax authorities as unlawful. The legislator, when adopting the rule on the regime of joint property of spouses, meant that this rule would be in force from the date of entry into force, but the tax authorities “overturned” this provision into the past, says Sergei Shapovalov, a partner at the Tax Help law firm. “If you follow this logic, it turns out that the recognition of property as jointly acquired property does not depend on the date of marriage or divorce, but on a certain conditional date existing in the law, that is, March 1996,” he explains.
After the Presidium of the Supreme Arbitration Court confirmed that the entrepreneur was right, the most interesting thing is just beginning: now the question is whether this decision will become a precedent for courts of general jurisdiction (after all, this case, in fact, ended up in arbitration by accident - only because the plaintiff has your business). If so, a wave of lawsuits may sweep across the country to change the “deductible recipient” in married couples. In order to rewrite the deduction to the spouse who, having a white salary, earns more. And thereby reduce the time to receive a deduction.
Death taxation
Continuing the topic of receiving a deduction for a spouse, a letter from the Ministry of Finance No. 03-04-05-01/351 was recently published. As explained in the Department of Tax and Customs Tariff Policy of the Ministry of Finance, if property in the form of a residential building, land plot and car was acquired by the husband during marriage, the period of its ownership by the wife is counted from the date of registration of the property in the name of the husband. Hence the conclusion: after the death of her husband, the wife can receive a property deduction from the sale of an apartment or car registered in his name only if more than three years have passed from the date of registration of the property.
If a car, land or apartment was purchased by the late spouse long before death - at least three years ago, then a deduction can be obtained for the entire amount received from the sale of property, the Ministry of Finance explains in a letter. Simply put, you won’t have to pay income tax at all on the sale.
If a residential building, land plot, dacha or car has been owned for less than three years, you will still have to pay tax. True, the amount of income on which it will be necessary to pay tax on the income of an individual from the sale of property can be reduced for real estate by 1 million rubles. for real estate and 125 thousand rubles. for other property. That is, the sale of an apartment at a price of up to 1 million rubles. and cars up to 125 thousand rubles. the property deduction will “cover” everything. And in this case, the transaction will not have tax consequences. At the same time, do not forget that even if the sale of property does not entail the payment of tax, a declaration must still be filed. Irina SKLYAROVA