Housing Law Agency - Questions on housing and land law

18.9.2017
19813

A person who used maternity capital to purchase housing and then received a tax deduction upon purchase will most likely face fines and penalties from the tax authorities. Moreover, in some cases the claims of the fiscal authority can be considered fair, but in others – not. So many by-laws have been issued on the topic of tax deductions for real estate buyers that today even experts do not always understand how to act in a given situation.

According to paragraph 5 of Art. 220 of the Tax Code of the Russian Federation, the tax deduction provided to a citizen who has purchased (built) a home for himself does not apply to the amount of maternity capital contributed to the purchase account. And here a curious collision arises. If housing was purchased using materiel at a price of more than 2.45 million rubles, then the buyer can take full advantage of the tax deduction. The situation is simple: a maximum of 2 million rubles is eligible for tax deduction. from the cost of housing. If the purchased apartment costs more than 2.45 million, then the buyer receives a deduction for those same two million (the budget returns him 13% of this amount, i.e. 260 thousand rubles) and there remains the balance of the amount paid that has not yet been deducted - 0 .45 million or more, which approximately corresponds to the size of maternity capital (the size of which in 2020 is 453 thousand). Everything is in order - the deduction was received from the amount paid by the buyer from his own funds. The deduction did not apply to maternity capital.

What is a deduction and how is it calculated for maternity capital?

Art. 220 Tax Code of the Russian Federation. Property tax deductions

A tax deduction is when a citizen is returned a 13% personal income tax, which is withheld from his income. The deduction when purchasing real estate is called property deduction - clause 1 of Art. 208, paragraph 1, art. 224 and paragraph 1 to 3 art. 220 Tax Code of the Russian Federation. If the 13% personal income tax is not withheld from a citizen’s income (for example, he does not work, is on maternity leave, or works unofficially), then there is nothing to return to him yet. When he starts paying personal income tax, then he can return it in the form of a deduction. More details - who has the right to a property deduction and when this right arises.

In the form of a tax deduction, you can return 13% of the expenses incurred for the purchase of an apartment (its cost), but there is a maximum amount - 260 thousand rubles, that is, 13% of 2 million rubles. The deduction is distributed among the owners depending on the size of their shares, but it all depends on when the apartment was purchased. All this is indicated in paragraphs. 3 clause 1 and pp. 1 p 3 tbsp. 220 Tax Code of the Russian Federation.

If the apartment was purchased after January 1, 2014, the maximum is 260 thousand rubles. can be received by each of the owners - paragraphs. 1 clause 3. art. 220 Tax Code of the Russian Federation. If the apartment was purchased before January 1, 2014, the maximum is 260 thousand rubles. calculated for the entire apartment, that is, divided among all owners according to the size of their shares - para. 17 pp. 2 p. 1 art. 220 of the Tax Code of the Russian Federation in the old version. In January 2014, tax legislation regarding deductions changed - Federal Law dated July 23, 2013 N 212-FZ.

Yes, the deduction does not have a maximum period - letter of the Ministry of Finance dated June 11, 2014 No. 03-04-05/28141. Moreover, you can get it even when the apartment has already been sold.

Now the main thing is that no deduction is provided for the amount of maternity capital. Because, as I wrote above, the deduction is returned only for expenses incurred to purchase an apartment. Maternity capital is not a citizen’s personal expenses, but state support. In our case, to improve the living conditions of the family after the birth of the second child - Art. 2 of the Federal Law of December 29, 2006 N 256-FZ. The Ministry of Finance of the Russian Federation shares the same opinion - letter dated July 18, 2013 N 03-04-05/28149.

EXAMPLE No. 1: In 2020, a family of 4 people bought an apartment for 4,200,000 rubles. The apartment is registered as shared ownership - each child has 1/50, each parent 12/25. Maternity capital in the amount of 453,000 rubles was used. This means the family spent 4,200,000 - 453,000 = 3,747,000 rubles on the purchase of an apartment. Their deduction is calculated from this amount.

The deduction amount for each parent is 13% * (3,747,000 * 12/25) = 233,812 rubles. The deduction for each child is 13% * (3,747,000 * 1/50) = 9,742 rubles.

Tax deduction when purchasing an apartment with maternity capital

We will talk not only about a tax deduction when buying an apartment with maternity capital, but also about a subsidy for the 3rd child in the amount of 450 rubles.

When purchasing an apartment, the taxpayer has the right to return 13% of the cost of the property, but no more than 2 million rubles, i.e. 260 thousand. The option is available only to officially employed persons. This is a tax deduction that we have talked about many times.

In addition to obvious benefits, deductions also have pitfalls. For example, it is impossible to return 13% of that part of the object that was paid for by maternity capital or other government subsidies. Big problems often arise from this clear and seemingly insignificant detail.

They happen to those who received a tax deduction for an apartment before using maternity capital for it. In this case, it will be necessary to return part of the tax deduction already received back to the budget, namely 13% of the subsidy.

Tax deduction when buying an apartment with maternity capital - an example.

In 2020, the Ivanovs took out a mortgage and bought an apartment for 2 million rubles. Over the course of 3-4 years, they received a tax deduction of 260 rubles for it, i.e. 13% of the cost. In 2020, they got maternity capital, and since the mortgage was in full swing, they sent him there.

Due to the fact that in the 20th year there is a change in the procedure for calculating maternity capital, it can be either 466 or 616 thousand. Let's say the Ivanovs receive 616 thousand and pay it for the loan.

The most important!

And now it turns out that with their own funds they paid for the apartment not 2, but 1 million 384 thousand. This means that 13% of 616 thousand must be returned back to the budget. The refund amount is more than 80 thousand.

And if you “slam” another 450 thousand into the same mortgage for the 3rd child, then the amount of return to the state will increase by another 58 and a half thousand rubles. In total, the Ivanovs will “get in” by 138 thousand.

Especially often, mortgage holders with real estate less than 2.5 million rubles fall into the orbit of such selfless state love. And that's why.

The tax deduction for real estate, the one that is in your favor, which you initially receive when buying an apartment, has a limit - 13% of the cost of the apartment, but not more than 2 million. If you buy an apartment for 3 million, then the deduction is all we get the same only from 2.

The third million seems to be on its way. But (!), having used maternal capital to pay off the mortgage on such an object, we will not have to return to the state the previously received part of the tax deduction. Why?

Because the maternal capital is written off from the total cost of the apartment, i.e. from the third million. The two million from which the deduction was received will in this case remain unaffected.

But, if for the same object another 450 thousand are allocated for a mortgage for the 3rd child, then the total amount of subsidies together with maternity capital will be 1,066,000 rubles. Having minus it from 3 million, we see that the “tail” is 66 thousand rubles. will already “creep” into the same 2 million from which the deduction was received. This means that 13% of 66 thousand will need to be returned to the state.

Thus, from the examples it is clear that it is easiest for those whose real estate costs from 2 to 3 million rubles to get into such a mess. It is clear that these are mostly families from the regions. Because most often it is there that for this money you can buy real estate where a family with several children will live.

Here's another tricky one. Very often, families receive a tax deduction jointly. For example, if an apartment costs 3 million, then one spouse will be able to receive only 260 thousand from it (13% from 2 million), because he simply does not have enough “pump” limit from the third million. Then a working woman gets involved in the matter wife. She also applies for deductions and receives another 13% from the third million, i.e. 130 thousand, using her limits.

If in this situation you use MSK or a subsidy for the 3rd child (this means after the parents have received a full deduction from 3 million), then the situation described above arises - you will have to return part of the money to the state. The fact that the apartment costs more than 2 million in this situation will no longer save you from having to return the money to the state.

What to do with this whole situation? The best way, of course, is to think ahead.

It is necessary to compare the cost of the apartment and the size of the subsidy. If the apartment costs more than 3 million, then you are not in the risk zone. This is clear from the last example. If it’s less, then count it.

You need to return the tax deduction back to the state in the situation if you have already received it. If you haven't received it, you don't need to return it. Initially they will not give it to you in the part in which the subsidy is applied.

If there is still a need to return to the state, then the tax authorities may offer you some kind of offset. As a rule, after the deduction for the apartment, the deduction for mortgage interest begins. So, these amounts, which should be returned to you for the mortgage, can be used to offset your obligations for deductions for the apartment.

This scheme is convenient because you do not have to look for cash to transfer to the tax office. But it is worth remembering that, after all, this is offset at your expense. Well, if offset is not done, then, unfortunately, you will have to give the tax authorities “real” money.

Friends, if this article is useful to you, I ask you to support the development of the project. You can do this here. Thank you! And we continue.

Finally, we note that if you had to return part of the tax deduction back, it means that your personal income tax refund limit is not exhausted. This means that you can “get” it when purchasing your next property. But that's a completely different story.

I in no way want to say that government subsidies are bad. This is good and the consumer will remain in the black. But along with the plus, there will also be a “sediment.” But it would be much more pleasant to know that the state does not waste time on trifles and is ENTIRELY on your side. Read more >>>

On the distribution of deductions between spouses

Spouses have the right to distribute the deduction among themselves in any proportion by agreement - paragraphs. 3 p. 2 art. 220 Tax Code of the Russian Federation. For example, 60 to 40. Up to 100% for one of the spouses, i.e. the entire deduction is details.

You can distribute the entire deduction to the first spouse even when: 1) the second spouse does not work, is on maternity leave, or works unofficially, i.e. does not pay 13% personal income tax - letter of the Ministry of Finance dated March 29, 2020 N 03-04-05/18320. In addition, when the entire deduction is distributed to the first spouse, the second spouse does not lose his right to the deduction when purchasing other real estate, if he did not previously receive it - letter of the Ministry of Finance dated March 10, 2015 N 03-04-05/12335; 2) the second spouse has previously received a deduction for other real estate, i.e. spent his right - letter from the Federal Tax Service dated April 4, 2013 N ED-3-3 / [email protected] The main thing is that the first spouse does not return the deduction earlier.

Do not forget about the maximum amount of 260 thousand rubles. You cannot receive more than this amount - neither for yourself nor for your spouse. Therefore, if the spouse’s share is more than 2 million rubles, there is no point in distribution. I have indicated the distribution conditions and examples below.

When financial capital is used to purchase an apartment, it is registered as shared ownership for all family members - clause 4 of Art. 10 Federal Law of December 29, 2006 N 256-FZ. That is, each owner has a certain share in the right (for example, 1/2, 1/4, 5/7) - clause 2 of Art. 244 Civil Code of the Russian Federation. This is what I indicated in the examples above.

There is a feature regarding the distribution of deductions between spouses in case of shared ownership. If the apartment was purchased after January 1, 2014, the deduction is distributed from the amount of expenses of each spouse, which can be documented - letter of the Federal Tax Service dated March 30, 2016 N BS-3-11/1367 and letter of the Ministry of Finance dated June 1, 2015 N 03-04-05/ 31428. Therefore, I will analyze the situations:

Payment for the apartment was made by one of the spouses or the amount was registered as one amount for both spouses.
For example, the sellers wrote a receipt indicating the total amount they received from the buyer spouses. If the money was transferred by bank transfer, then from the bank account of only one of the spouses. In this situation, the deduction can be distributed in any proportion, and not according to the size of the shares in the apartment. Because the spouses have common income, which means expenses and purchased real estate - clause 2 of Art. 34 RF IC.
EXAMPLE No. 1: In 2020, a family of 4 people bought an apartment for RUB 5,200,000. Each child has 1/20 shares, parents have 9/20 shares. Material capital of 453,000 rubles was used. This means that the family’s expenses are 5,200,000 - 453,000 = 4,747,000 rubles.
Payment for the apartment was made from the husband’s bank account and the sellers wrote a receipt for the total amount. The wife had previously received a deduction, so she spent her right. She still cannot distribute her deduction to her husband. Although the husband gets an amount of 13% * (4,747,000 * 9/20) = 277,290, he will still receive the maximum 260,000 rubles.
EXAMPLE No. 2: In 2020, a family of 4 people bought an apartment for 2,700,000 rubles. Each child has 1/15 shares, parents have 13/30 shares. Material capital of 453,000 rubles. This means that the family’s purchase expenses were 2,700,000 - 453,000 = 2,247,000 rubles.
The couple gave the sellers money for the apartment in cash, and the sellers wrote one receipt with the total amount. The wife does not work, so she is not entitled to a deduction. They can distribute the deduction to the husband because he did not previously receive it. For each spouse, the deduction is 13% * (2,247,000 * 13/30) = 126,581 rubles. The wife distributed her deduction to her husband, so he can return 126,581 + 126,581 = 253,162 rubles.
Both spouses paid for the apartment separately.
For example, the seller of an apartment wrote a receipt for receiving money, which indicated that the first spouse gave the seller 2.5 million rubles, and the second 1.5 million rubles. Or the first spouse transferred 2.5 million rubles from his bank account to the seller’s account, and the second spouse transferred 1.5 million rubles from his account. Then the spouses can receive a deduction only for their expenses incurred or depending on their shares. It cannot be distributed in any other proportion.

If the apartment was purchased by spouses before January 1, 2014 as shared ownership, the deduction is distributed among the owners only depending on their shares. That is, the spouses cannot distribute it in a different proportion - letter from the Federal Tax Service dated July 11, 2013 N ED-4-3/ [email protected] and letter from the Ministry of Finance dated February 27, 2013 N 03-04-05/8-154.

Refund of personal income tax for an apartment with a mortgage with maternity capital

When purchasing an apartment with a mortgage, you can return income tax with two deductions.

Deductions when purchasing an apartment with a mortgage:

Deduction from funds spent on the purchase of housing (clause 3, clause 1, article 220 of the Tax Code of the Russian Federation), but not more than 2 million rubles. (Clause 1, Clause 3, Article 220 of the Tax Code of the Russian Federation). It works both if you took out the money on credit and if you paid the required amount out of your own pocket.
Deduction from interest paid to the bank on a mortgage (clause 4, clause 1, article 220 of the Tax Code of the Russian Federation), but not more than 3 million rubles. (clause 4 of article 220 of the Tax Code of the Russian Federation)

Maternity capital can be used for a down payment, to repay the principal debt or to pay interest.

The certificate is included in the down payment, without investing your own money

To calculate the amount of the deduction for housing expenses, you need to subtract the amount of the down payment from the cost of the apartment, that is, the amount of the deduction will be equal to the amount of the principal debt on the loan, but not more than 2 million rubles. For example, Olga buys an apartment for 2 million rubles. Of these, 300 thousand of the down payment were paid by MK. The deduction amount will be 1.7 million rubles - this is the amount of the principal debt on the mortgage.

The mortgage interest deduction is paid in full.

The certificate is included in the down payment with the investment of your own money

The rule doesn't change. You need to subtract the amount of maternity capital from the total cost of the apartment. For example, Tanya buys a house for 1.5 million rubles. Takes out a loan for this amount, makes a down payment of 300 thousand rubles. Of these, 200,000 rubles are maternity capital, and 100 are Tanya’s personal savings. The tax deduction will amount to 1.3 million rubles - Tatiana’s money, which she will spend on an apartment (some of it immediately, some of which she will gradually return to the bank).

The mortgage interest deduction is paid in full.

The certificate repaid the mortgage debt

Same rule here. Housing costs (cost of apartment) - MK.

The mortgage interest deduction is paid in full.

The mortgage interest was paid with the certificate

The amount of interest you pay to the bank can be found in the payment schedule. Subtract the MK amount from the amount paid and receive a tax deduction. The state will return personal income tax on no more than 3 million rubles paid to the bank as interest.

The principal amount (expenses for the apartment) is paid in full.

The certificate is included in mortgage interest and principal debt

Part of the monthly capital is deducted from the principal debt, and part from interest.

Parents can receive a deduction for their minor children

Both parents or one of them can receive a deduction for children, but only for minors - clause 6 of Art. 220 Tax Code of the Russian Federation. This is the same as sharing the deduction between spouses. Parents must decide among themselves in what proportion they can increase their deduction due to the deduction of a minor child - letter of the Ministry of Finance of the Russian Federation dated July 5, 2012 N 03-04-05/5-845. Naturally, this can be done if the parents have not received a deduction before - clause 11 of Art. 220 of the Tax Code of the Russian Federation and letter of the Ministry of Finance of the Russian Federation dated March 16, 2015 N 03-04-05/13747.

At the same time, children do not lose their right to receive a deduction when purchasing other real estate - letters of the Ministry of Finance dated 09/03/2015 N 03-04-05/50743 and dated 08/29/2014 N 03-04-05/43425.

Here you also need to remember the maximum 260 thousand rubles. It's easier to understand with examples.

EXAMPLE No. 1: In 2020, the spouses bought an apartment for 5,400,000 rubles. The family has two minor children. Each child was given a share of 1/50, while parents received 12/25. Material capital was used in the purchase - 453,000 rubles. This means the family’s personal expenses were 5,400,000 - 453,000 = 4,947,000 rubles.

For each spouse, the deduction amount is 13% * (4,947,000 * 12/25) = 308,692, but they will receive a maximum of 260,000 rubles. Although they have not received a deduction before, it makes no sense for them to distribute deductions from the children’s shares among themselves. More than 260,000 still cannot be returned.

EXAMPLE No. 2: In 2020, the spouses bought an apartment for 3,700,000 rubles. The family has two minor children. Each child was allocated a share of 1/35, and parents received 33/70. Material capital was used in the purchase - 453,000 rubles. This means the family’s personal expenses are 3,700,000 - 453,000 = 3,247,000 rubles.

For each spouse, the deduction amount will be 13% * (3,247,000 * 33/70) = 226,757 rubles. Each child will have a deduction of 13% * (3,247,000 * 1/35) = 12,060 rubles. Parents can distribute their children's deductions among themselves in any proportion. For example, each parent will receive a deduction for one of the children, i.e. will receive 226,757 + 12,060 = 238,817 rubles. Or one of the parents can receive deductions for both children, i.e. he will have 226,757 + 12,060 + 12,060 = 250,877 rubles, and the second parent will only have his own 226,757 rubles.

EXAMPLE No. 3: In 2012, the couple bought an apartment for 2,900,000 rubles. The family has two minor children; upon purchase, they were allocated 1/7, and each parent received 5/14. We used materiel capital in the amount of 387,000 rubles. This means that the family’s expenses were 2,900,000 - 387,000 = 2,513,000 rubles, i.e. more than 2 million rubles.

The couple did not know about their right to deduction, so they decided to get it only in 2019. Since the apartment was purchased before 2014, that means the maximum is 260,000 rubles. distributed over the entire apartment, i.e. between owners depending on their shares. Parents can receive deductions for their children, so each parent can get back 130,000 rubles.

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If you have questions, you can consult for free. To do this, you can use the form below, the online consultant window and telephone numbers (24 hours a day, seven days a week): 8 Moscow and region; 8 (812) 425-62-89 — St. Petersburg and region; all regions of the Russian Federation.