International exchange of tax information under BEPS

general information

Let's take a little dip into history.

Twenty years ago, during the existence of the Soviet Union, such a thing as private property did not exist at all.

All real estate was state-owned, which means that all transactions that took place with it were also carried out at the expense of the state (read about the possibility of exchanging municipal housing).

It was during the Soviet Union that the exchange of apartments was widespread, since it was impossible to sell what did not belong to you by right of ownership.

After the Union ceased to exist and a new state called the Russian Federation appeared on the map, the situation changed somewhat.

Now citizens have the opportunity to purchase real estate as their own, and at the same time, own, manage and use it at their own discretion. Apartments can now be alienated by any transaction known to the Civil Code (read about the exchange of a privatized apartment).

Of course, now the costs of conducting a transaction, namely the execution of relevant documents by government agencies and checking the transaction for legality, are carried out for a certain fee .

This is a kind of payment towards the country’s budget for the opportunity to own this or that real estate under the right of ownership.

Board size

Unfortunately, the Tax Code does not establish the amount of tax for such a transaction as the exchange of real estate. There is no mention of this in the Civil Code.

By the way, you can find out the details of the transaction in Article 567 and subsequent norms of the Civil Code of the Russian Federation. But how then can a common man know what kind of monetary contributions to the state he can count on?

If we turn to the Civil Code, one of the articles contains the following definition.

Thus, barter is equivalent to the well-known purchase and sale agreement .

Many citizens will throw up their hands, because there is nothing similar in these procedures. Actually this is not true.

In a purchase and sale transaction, we can observe the presence of two parties - the seller's side , transferring ownership of the property in favor of another person, and the buyer's side , acquiring ownership for money.

There are also two parties to an exchange agreement, but each of them is automatically both a seller and a buyer . This means that these transactions can be compared almost equally.

The Tax Code in Article 217 establishes a tax of 13 percent of personal income tax on a purchase and sale transaction . Consequently, this figure is also relevant for barter transactions.

Tax amount when exchanging an apartment

How much will you have to pay when registering a transaction{q} Photo No. 2
The amount of tax required to pay in a real estate exchange transaction is determined based on the specific features of the exchange agreement, or more precisely:

If the subject or subjects of the transaction were owned by the owners for less than 3 years, the amount of tax is determined according to the standard formula for the entire cost of the apartment or apartments.
In a situation where there is an additional payment, the size of the tax base is determined exclusively from this additional payment.

Accordingly, if the cases presented above are combined with each other, then the amount of the surcharge and the cost of the entire apartment are summed up and, based on the resulting value, the tax required to pay is calculated.

https://www.youtube.com/watch{q}v=Et5t6IQiC8I

The tax calculation formula is also different for the situations presented above:

For the first case, the tax amount is determined by the formula - (cost of the apartment - 1,000,000 rubles) * 0.13. For example, citizen Ivanov exchanges his apartment, which he has owned for 2 years and costs 4,000,000 rubles, for another. This means that he must pay a tax equal to - (4,000,000 - 1,000,000) * 0.13, or more precisely - 390,000 rubles.
For the second case, that is, if there is an additional payment under the agreement, the person receiving the additional payment under the exchange agreement is obliged to pay tax, which is calculated using the formula - (amount of additional payment) * 0.13. For example, citizen Penochkin exchanges his apartment, the cost of which is 2,000,000 rubles, for an apartment worth 3,000,000 rubles, then the tax that he must pay to the state is equal to - (1,000,000 * 0.13), or more precisely - 130 000 rubles.

Tax base when registering a real estate exchange transaction. Photo No. 3

(Apartment cost Additional payment – 1,000,000) * 0.13

It is important to note that in situations where one apartment, the subject of a transaction, was with its owner (participant in the transaction) for less than 3 years, and the other apartment, also the subject of a transaction, was with its owner (another participant in the transaction) for more than 3 years , then only the owner of the apartment who has owned it for less than 3 years is obliged to pay the tax.

The calculation of the tax amount is carried out exclusively on the cost of his own apartment, that is, the price of the other subject of the transaction is not taken into account when calculating the tax base.

For general information, let us clarify that you can use a deduction or receive one based on the results of a transaction only if the following conditions are met:

The parties to the transaction are not interdependent persons. That is, if parents and their son are involved in an apartment exchange agreement, then obtaining or using a tax deduction is impossible. In the case of the participation of a family and their neighbor (not a relative) in the transaction, the tax deduction system is applicable.
The party to the transaction who wishes to receive a deduction or take advantage of it pays personal income tax (personal income taxes). Everything is simple here, because such a measure is necessary only because it is from the personal income tax that the tax deduction is determined. Moreover, both in the situation of receiving it and in the situation of using it.
The recipient of the deduction or the person using it has documentary evidence of the transaction. This measure is necessary in order to confirm the right to a tax deduction in authorized organizations. In the absence of such documents, the deduction is often not provided or is provided for a taxable base of 1,000,000 rubles, but no more.

Every person is required to pay taxes. Including for the sale of real estate.

if the apartment that was decided to be exchanged has been owned for less than 3 years;
when property is exchanged with additional payment.

Russian legislation establishes that if real estate was acquired before 2020, then the period of ownership after which you can avoid paying tax on the sale of an apartment is 3 years. If the property was purchased after this year, the tenure period increases to 5 years. There is one rule:

In an exchange, each party is obliged to provide each other with a product for use in exchange for another.
All rules of the purchase and sale agreement may be applied to the agreement drawn up during the exchange. Therefore, each party has two statuses, seller and buyer.

If the property has been owned for less than 3 years

If a citizen has owned the property for more than three years, then he is exempt from the obligation to pay money to the state , claiming a kind of tax deduction .

This deduction is exactly 13 percent of the transaction amount. Thus, out of 100 percent of the amount of the exchange carried out, not a ruble will be paid to the state.

But if the period of ownership of this property does not exceed three years, at least for one month, this is a reason to pay the tax proposed by the state. Otherwise, the transaction is considered invalid and is not registered.

If there is an exchange in which one housing was owned for no more than 3 years, and the other for more than 3 years, then the owner of the housing that was in his possession for less pays 13 percent of the transaction amount, relating only to his specific housing.

Practical use

An agreement for the exchange of real estate can be considered a type of purchase and sale agreement. But in practice, an exchange agreement is extremely rare. It is very difficult in modern realities to find equivalent property so that the exchange suits both parties. Even when considering a contract with an additional payment, there is an acute question about the amount, despite clear market prices.

In addition, the contract for the exchange of real estate implies a number of nuances. But more about them a little later. The main thing you need to know is that you cannot exchange, for example, a room for a dacha. Of course, you can pay extra, but given housing prices, this no longer implies barter, but a full-fledged purchase.

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One way or another, barter implies an equivalent exchange of property, which must be owned by both citizens. Let us note some conditions that distinguish an exchange agreement from other types of property relations:

The concept of property deduction

When exchanging an apartment with an additional payment, do I need to pay tax? What is a tax deduction when exchanging an apartment with an additional payment? When exchanging apartments, if the owner has owned it for no more than three years, he has the right to receive a property deduction . This opportunity is provided for in Article 220 of the Tax Code.

However, the deduction applies to an amount not exceeding one million rubles . If the transaction amount is slightly higher, then only the previously indicated amount is subject to deduction.

Let's calculate the amount of tax deduction.

If the transaction amount is 3 million rubles, then 1 million rubles is the deduction amount. You shouldn't touch him.

But of the remaining 2 million, the parties proportionately pay a tax of 13 percent in half. In this case, the tax deduction can be applied only once .

Learn more about the possibility of obtaining a property deduction in this video:

Taxation

Many citizens are interested in whether they should pay tax when exchanging an apartment or house{q} Legal documents clearly answer this question. No you don't need to pay, but there are a few exceptions. The first caveat is that when concluding an exchange agreement, you cannot take advantage of tax deductions to obtain monetary benefits.

Exchange implies a relationship with municipal property. For example, housing of the older generation (grandparents), which was purchased in the last century. Moreover, if re-registration for some reason does not occur, then an exchange is made. This category also includes social housing.

Exchange implies transactions with privatized housing, i.e. the owners have documents on the right of ownership. It is impossible to exchange municipal housing for privatized housing. The ban came out more than 10 years ago and no changes or amendments are expected yet.

But if an additional payment is made during an exchange agreement, then tax will have to be paid.

The tax situation was more transparent until the beginning of 2020. If one party owned the apartment for more than three years, then no additional payments were required. A shorter period was subject to a tax of 13%.

The following years brought several changes. Now a special coefficient will be introduced for the tax, which regulates cash payments.

Moreover, depending on the status of the owner (veteran, low-income), the period when it is not required to pay tax has increased to 5 years. For ordinary citizens, the rules have not changed. Ultimately, the tax does not apply to barter, but with a cash surcharge it will be 13%.

Is a real estate exchange transaction subject to taxes{q} Photo No. 1

The legislation of the Russian Federation, or rather the Tax Code of our country, clearly defines in what situations and in what amount citizens are required to pay tax on civil transactions. Regarding the conclusion of exchange agreements, the law regulates two situations when taxation occurs when exchanging an apartment:

The first situation - the subject of the exchange agreement is (are) an apartment (apartments) that have been owned by the owners for less than 3 (5) years and their value exceeds the amount of 1,000,000 rubles. More precisely, if the apartment transferred in exchange was purchased by the participant in the transaction before 2020, then in order to be exempt from paying tax, he must own it for at least 3 years, in other cases - 5 years or more.
The second situation is that in the terms of the exchange agreement there is a clause that determines the additional payment of one of the parties to the transaction. In this case, tax payment is always required.

Thus, it turns out that apartment exchange transactions in which there is an equivalent and free exchange are not subject to taxation.

Many citizens are also interested in whether payment of tax under a real estate exchange agreement is applicable to the tax deduction system. The answer is simple and obvious - absolutely yes. Moreover, persons participating in the exchange transaction can either use the received deduction to pay off tax obligations, or receive some deduction in their own name.

Naturally, the system of tax deductions for an exchange agreement is applicable only if it contains an additional payment clause; in other situations it does not apply.

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How to pay?

So, first you draw up an agreement with a notary . You can do without this, but such a measure will protect your rights.

Next, you transfer the surcharge or your side does this, if this is established by the contract (read about drawing up an exchange agreement with a surcharge). The notary registers your transaction. After that, it helps you calculate your tax.

You go to Rosreestr and declare your desire to submit documents for registration. They calculate the tax amount again and give you You pay the money, after which you stand in line to have your documents reviewed.

You can find out whether maternity capital can be used as an additional payment when exchanging an apartment in our article.

Additional terms

As mentioned above, it is impossible to exchange an apartment for a country house. Let us pay attention to other nuances that should be taken into account in the exchange agreement. For example, an apartment is owned by several owners.

Is it necessary to document the permission to exchange from other owners{q} Unfortunately, there is no exact answer to this question.

Regulatory documents, in particular 250 art. The Civil Code states that when selling, the refusal of other owners to purchase the property must be documented. But the exchange agreement is not an act of purchase and sale, the attentive reader will say. That's right.

Therefore, in practice, such issues for reliability should be recorded with a notary in order to avoid controversial issues. The authorities registering the exchange agreement will refuse to register it if there are no papers that confirm the waiver of the rights of first priority purchase by other owners.

The next point is that the property is owned by the spouses. Whether the consent of the second spouse should be documented{q} There is a lot of controversy on this topic. In practice, most people agree verbally and, as a rule, the exchange agreement is a mutual decision.

But the Family Code of the Russian Federation says the opposite - in any case, in real estate transactions, the official consent of both spouses is required. Again, the documents are drawn up through a notary office.

For example, there is a crack in the wall or the quality of the flooring is poor. Of course, you should carefully examine the object of exchange, but in this case it is possible to receive compensation if, for example, a crack appeared a week after the exchange. Usually the parties agree peacefully on this issue.

Even joint repairs are possible. But in fact, such an issue can be resolved through the court by providing the appropriate documents. Photo or video filming before and after the defect will only be a plus for the owner.

For example, repairs are estimated at 100 thousand rubles for an apartment costing 1 million. In court, it is possible to reduce the cost of the transfer by exactly this amount (or increase the surcharge, for example).

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But such a situation is unlikely if the parties draw up an additional document indicating that citizens have carried out an inspection and are familiar with the quality of the property. The signature of the parties will remove all questions regarding this matter. As an option, you can insure your property, but you should pay attention to the clauses of the contract. After all, a specific defect may not be covered by an insured event.

In a situation where the exchange of land is implied, citizens are obliged to be the owners of the land. If the site is leased, then the new owner will be forced to re-register documents on the property, and the fact of the lease has not been canceled. You should be careful and check such facts so as not to become a victim of scammers.