TO When can you sell an apartment after donating? Let's figure it out together.

Real estate, including an apartment, in our country can not only be bought, sold, inherited or won the lottery, but also received as a gift. Many recipients of such a gift naturally have questions.

Here are some of them:

what transactions and when will they be able to make with the donated apartment?
under what conditions can they dispose of the property obtained in this way?
Are there any peculiarities in the sale of an apartment received as a gift if minors are registered in it?
Is it possible to avoid paying income tax on the sale?

How long can you sell an apartment received as a gift

A person gets the opportunity to dispose of an apartment (house) received as a gift, as well as any other type of property, at his own discretion, from the moment of transfer of ownership from the gift giver to its recipient.

Such a transaction is registered in Rosreestr, and the result is a certificate of ownership.

Documents for registration can also be submitted through the MFC at the location of the object of sale. The donation agreement itself, as such, can be drawn up in a simple written form without the participation of a notary. This is understandable, since many sellers want to somehow save on the deal.

But recently, notary fees have been significantly reduced, especially for the category of persons falling under the concept.

In addition, notaries are connected to, which allows you to receive up-to-date information from Rosreestr, the Federal Bailiff Service and other authorities, thereby making it possible to check the transaction for purity.

It should be noted that in judicial practice there are a sufficient number of deplorable examples when scammers used the ignorance of citizens in matters and the optional notarization of contracts for personal gain.

Family members sometimes act not in the best way in relation to elderly parents, grandparents. Not understanding all the consequences, hoping for the decency of relatives, gullible old people agree to draw up a deed of gift without a notary, thereby sometimes depriving themselves of their only shelter.

So, an elderly woman N. found herself overnight on the street at the behest of her own granddaughter. Grandmother, drawing up a donation agreement for her, hoped that she would be able to live out her days in her native “odnushka”, and her granddaughter would be able to dispose of the apartment only after her death. But due to financial difficulties, a relative sold the apartment with her grandmother, then several more sales followed. The last owner of the property evicted the old woman through the court.

If the relatives had visited the notary's office before registering the rights, perhaps such a story would not have happened. Since the notary, before certifying the transaction, will explain to the parties all the consequences of issuing a deed of gift.

It should be borne in mind that the apartment donated to one of the spouses does not apply to jointly acquired property, therefore, the consent of the spouse for its sale is not required. But if minor children are registered in the apartment being sold at the time of the sale and purchase transaction, the seller must obtain permission from the Board of Trustees that their rights are not infringed.

Please note: from the first days of 2016, a donation agreement is subject to notarization if the subject of this agreement is the shares of an apartment, or an apartment in which minors are registered at the time of the donation.

If a new living space is purchased with the proceeds from the sale of an apartment received as a gift in a marriage, then it already belongs to the jointly acquired property, and, therefore, is subject to division in the event of a divorce of the spouses (an example of an agreement on the division of the common property of the spouses can be viewed ).

In order to avoid negative consequences, for example, during a divorce, it is recommended:

prepare an agreement on the division of new property, in which it is clearly stated that it is the property of the spouse (wife), as it was purchased with the proceeds from the sale of donated real estate;
get it certified by a notary.

Documents for the sale of an apartment received as a gift

The list of documents is in many ways similar to the list for other real estate transactions:

documents confirming the identity of the transaction;
certificate of ownership of the housing for sale;
passport obtained at the Cadastral Chamber;
an extract from the house book or a certificate from the passport office about registered persons in the apartment being sold;
contract of sale in the amount of three copies;
paid fee (receipt) for registration actions.

Tax on the sale of a donated apartment

Previously, the obligation to pay income tax was assigned to the seller of an apartment if he was the owner of this apartment for less than 3 years.

Since the beginning of 2016, changes in the legislation regarding the period of ownership of real estate subject to tax at the time of sale have come into force. Now it is five years old.

Currently, 13% of personal income tax must be paid to the state if the sale is made before the end of 5 years of ownership of the apartment received as a gift. When selling a share of an apartment, the obligation to pay personal income tax remains with the seller, regardless of the number of years of ownership of the shares.

Compare: when making a donation transaction between strangers or distant relatives, the obligation to pay tax lies with the donee.

Escape the tax by lowering the value of the apartment is also becoming increasingly difficult. If the value of the apartment is indicated in the donation agreement below the appraised value, the Federal Tax Service Inspectorate has the right to request a certificate from the BTI and charge tax on the indicated value.

Owners for whom the tenure of the apartment for tax exemption is 3 years:

heirs recognized by the Family Code of the Russian Federation as close relatives of the testator;
donee recognized by the Family Code of the Russian Federation as close relatives of the donor;
persons who have privatized property;
persons who have received the right of ownership, as payers of rent under a life maintenance agreement with a dependent.

Pitfalls for the buyer of an apartment received as a gift

It must be remembered that the gift agreement can be challenged by the relatives of the donor by declaring him incompetent or not aware of his actions at the time of the transaction.

After the donation is challenged and satisfied, the court may decide to recognize all subsequent purchase and sale transactions as invalid and subject to annulment.

Moreover, the number of these transactions is not taken into account: the apartment can be sold more than once or even twice. In this case, the court issues a ruling declaring the transaction null and void and obliges the seller to return the funds in full according to the contract to the buyer, and the object of the dispute - to the seller.

In conclusion, I would like to wish both parties to the transaction to be careful when preparing documents for the purchase and sale, sometimes the only one, of real estate.

Watch an informational video about the home sales tax:

An object of real estate donated on the basis of a gift can be not only an apartment, but also a garage, a private house, a separate room, a non-residential building or premises, and even a piece of land.

In this article, we will talk about what a donation agreement for real estate is, in which cases the process of its transfer is taxed, what stages the registration procedure consists of, how to draw up an agreement correctly, what documents to prepare for registration, what is the cost and terms of registration.

According to Article 574 of the Civil Code of the Russian Federation, the essence of registration of a donation is to impose an obligation on one person (the donor) to transfer property to another person (the donee) free of charge. The document acquires legal force after its state registration in one of the relevant authorities (Rosreestr, Cadastral Chamber, Multifunctional Center).

The object of donation of real estate can be:

Apartment;
Private house or cottage;
Non-residential building or premises;
Separate room;
Land plot;

Drawing up a donation for property requires mandatory notarization, but only if the gift object has several owners. For example, an apartment donated as a gift is registered to several persons at once.

But if the object of donation is owned by only one person, there is no need for notarization. Having drawn up the document on their own, the donor can only apply to the selected registration authority with a prepared package of documents.

Information!

A necessary condition for a donation transaction is its gratuitousness. Those. transferring some property to the donee, the donor is not entitled to put forward any requirements or conditions for its receipt. Otherwise, the transaction is declared invalid.

Read the next section about the need to pay tax when transferring property as a gift.

Taxation

The issue of taxation of property by gift is of interest to both donors and the donee. However, in reality it concerns only the latter.

So, in accordance with the norms of the Civil Code of the Russian Federation, it exempts the donee from the need to pay tax upon receipt of an immovable object of donation.

Close relatives are:

Spouses;
Children;
Granddaughters and grandchildren;
Parents (relatives and non-natives);
Grandparents;
Brothers / sisters (relatives and adoptive ones);

However, when donating real estate between non-close relatives (second, third and subsequent stages), the donee is obliged to pay a tax in the amount of thirteen percent of the appraised value of the received property.

Relatives who are not exempt from tax include:

Father-in-law / mother-in-law;
Brothers / sisters of spouses;
Cousin grandparents;
Nephews;
Great-nephews;
Brothers and sisters cousins, second cousins;
Other relatives;

Registration procedure: step by step instructions

Registration of a donation for property includes the following steps:

Immediate ;

When drawing up, the parties to the transaction (donor and donee / donee) must be present, as well as a notary, if the object of donation is owned by several persons.

for the transfer of ownership from the donor to the donee / donee (if there are several of them);

The stage of compiling a donation is the most difficult and includes the following subsections:

Written preparation of the document (the number of copies depends on the composition of the participants in the transaction);

Copies and photocopies of the agreement are distributed among the following participants in the transaction: the donor, the donee, a notary, a real estate specialist (if he is the one who handles the registration).

Obtaining the consent of the parties to the transaction for its implementation. Those. before conducting it (drawing up, signing and registering), the notary must make sure that both parties agree to this, and then organize a sanity check of the donor in order to make sure that there is no coercion factor;
Preparation for the implementation of registration actions;
Transfer of all documents to the state registration authorities;

Information!

Registration of a real estate gift agreement is carried out in Rosreest, the Cadastral Chamber or the Multifunctional Center.

Obtaining a ready-made certificate of transfer of ownership of the gift object from one person to another;

Drafting a document

Despite the fact that, according to the structure, a real estate donation agreement does not have an established form, certain features must be taken into account when drawing up it.

You can draw up a deed of gift both on your own by downloading a sample document in the public domain on the Internet, or by contacting the help of a specialist (lawyer, notary or realtor).

We suggest that you familiarize yourself with the typical structure of a donation:

At the very top of the page of an A4 sheet (in the middle), the name of the document is affixed, namely, “Real Estate Donation Agreement”;
After that, the place (city, region), as well as the date (day, month, year) of the contract is prescribed;
In the main part of the document, in a narrative form, the data of the donor and the donee are written (full name, address of residence (according to the passport);
The following is a description of the property (house, apartment, room, land, garage) that will be transferred to the donee, with the obligatory indication “free of charge”;
The next paragraph confirms the consent of the donee to the acceptance of the above immovable object as a gift;
After that, it is prescribed to provide a guarantee on the part of the donor that the immovable object transferred as a gift will be transferred to the donor in the same form that it is at the time of the conclusion of the contract;
Next, the date is prescribed when the donation object finally becomes the property of the new owner;

So, it can be the moment of receipt of the certificate or any other date, at the discretion of the donor.

The next paragraph states that all the costs of compiling a donation for property will be borne by the donee or donor;
The number of copies and copies of the deed of gift, which the parties have compiled in addition to the main one, is prescribed;
At the very end of the transaction, the parties (the donor, the donee and, in some cases, the notary) put down their personal signatures;

List of required documents

To register with one of the registration authorities, you must provide the following list of documents:

Identification documents (passports) of the donor and the donee;
Gift agreement in the required number of copies;
Certificate of state registration of ownership of the property owned by the donor;
Registration certificate for the property (obtained from the BTI);
Notarized written consent to the transfer of real estate as a gift from another owner (if any);
An extract from the home book, which indicates the number of persons registered in the property (for example, in an apartment or a private house);

You must provide the original and a photocopy.

Power of attorney of one of the parties to the transaction (if necessary);

If, when drawing up the contract, one of the parties to the agreement cannot be present in person and an official representative (lawyer) is present instead.

Permission to draw up an agreement from the guardianship and guardianship authorities;

Required if one of the parties to the transaction is a minor or incapacitated citizen;

Read how to issue a deed to a minor.

A document confirming the payment of the state fee;

Price

The object of the donation directly depends on the degree of relationship between the parties to the transaction. So, when drawing up a donation agreement for real estate between close relatives, the donee is exempted from paying tax on the property received as a gift.

However, when drawing up a real estate gift agreement between other relatives, the donee must pay a tax in the amount of 13% of the assessed value of the real estate received as a gift.

In addition, the following costs will have to be incurred during the execution of the contract:

Services of a notary/lawyer/real estate specialist;

If the donor draws up the contract on his own, this paragraph is deleted.

State duty in the amount of 1,000 rubles (mandatory item);

Terms of registration

After compiling, certifying and collecting all the necessary documents, they are submitted to the selected state registration authority (Rosreestr, Cadastral Chamber or Multifunctional Center).

The term for consideration, verification of the contract and production of a certificate of transfer of ownership is about twenty days, after which the donee receives an SMS notification (or email) about the readiness of the document. And you can pick it up on any day convenient for the donee.

Add. nuances

Various life circumstances can change the will of the donor regarding the fate of the donated property. However, it will be extremely difficult for the donor to cancel the donation agreement, since the document itself is distinguished by its immutability. In order to invalidate a deed of gift, the donor or potential heir will need to find a good reason for this.

So, the grounds for property are prescribed in Article 578 of the Civil Code of the Russian Federation. According to this article,

A citizen may transfer any immovable property to another person. Such types of property include land, residential building, apartment or room, non-residential premises and other buildings. The donation of real estate is regulated by clauses 1 and 3 of Article 574 of the Civil Code of the Russian Federation. How to transfer one property to another, what papers are needed - all the details are in the article.

A paper fixing property for further transfer and the conditions under which this transfer will be carried out is called a real estate donation agreement. The advantage of this paper is that the gifted person can dispose of his property as he wants.

Thus, the owner who donated the property does not have the right to establish limits on its use. He is not able to prohibit selling and changing it, registering close relatives there, renting it out and performing other actions provided for by law.

To whom the property is transferred

According to the law in force in the Russian Federation, property is transferred as a gift to any citizen or close relative. However, you can get rid of paying taxes when real estate is donated to a close relative. These should include:

children: both relatives and adopted;
parents, including adoptive ones;
sisters and brothers: both relatives and not full-blooded;
grandparents, grandchildren;
husband or wife.

Property subject to deed of gift

According to the law, there are only a few categories of property that are subject to donation to another person. Before donating, the donor should check that the property has no debts and is not under the claims of third parties.

apartment and land belonging to the owner who will donate them;
property donated with the permission of the owners;
property not subject to arrest by banking services;
a donated apartment that cannot be sued to other persons.

Special conditions apply to property belonging to social rent. Initially, a person must arrange privatization for him and only then - transfer it as a gift to another citizen.

If the property is located in an unfinished house, then it is possible to give it to a close relative when the person takes possession of this property.

Positive and negative aspects of concluding a donation agreement

This paper has pros and cons. Of the pluses, one can name the following:

easy to draw up and does not require notarization;
it is difficult to cancel or challenge: by donating property, the owner transfers all rights to it to another person;
it is impossible to cancel the actions described in the document at the personal request of the owner;
if the owner decided to register a loved one, then he has the right not to pay tax for this procedure.

Of the minuses of the design, the following should be mentioned:

a citizen who is not a relative of the owner should pay tax;
registration of a donation for real estate is carried out free of charge;
the owner does not have the right to change his mind and change the terms of the donation of property.

Required documents

Consider the papers that are collected for deeds:

Passport.
Contract. Gift certificates are issued in 2 jokes. One is given to the owner, and the second to the recipient. A copy of the agreement is also provided, which is filed with the case.
Certificate of ownership.
Extract from the house book. It indicates the number of citizens registered in this property.
If you have property acquired during marriage, you should take the consent of the spouse. Remember that if there are multiple owners, multiple permits are required.
Papers from BTI. These include a certificate of inventory and a cadastral passport.
Completed application for the transfer of ownership. The owner draws up a paper on the transfer of ownership of the property. Also, the person receiving the gift formalizes the right to take ownership of the property.
Receipt from the bank for the payment of state duty.
A completed power of attorney. It is required when the papers are signed by a trusted person.
Permission from the guardianship authorities.

Rules for the execution of the contract

When drawing up a document on the transfer of real estate between relatives, the parties must comply with the following requirements:

The paper is issued only between capable citizens who are 18 years old.
Special conditions for issuing a document are established between civil servants.
Be sure to fix the item that will be presented in the paper. In the absence of its fixing, the contract may be declared invalid.
The deed of gift may describe the conditions that the property is transferred to close relatives after the death of the owner, but this item is not recorded when the agreement is drawn up.

It is possible to issue a donation in 2 ways:

According to the standard form on paper. In this case, the participation of a notary is not required.
According to the form provided by the notary, with his obligatory signature.

How to draw up papers as a donor personally

A donation for real estate can be issued in several stages:

The contract is drawn up in compliance with all the rules established by law.
Both parties sign papers.
Ownership of the donated apartment is formalized.
Tax payments are paid: 13% of the total value of the property.
Be sure to record the personal data of the participants in the paper: full name, passport details, place of residence.
The subject of the contract is also recorded. It records information about real estate: area, number of storeys, address, information from the state registration authority.
Further, the date of transfer of all types of property is fixed. Usually it is indicated when the property was not transferred at the time of execution of the contract.
At the end, the document is certified by the signatures of both parties. In their absence, the document is considered invalid.

We turn to the Registration Chamber or the MFC, which is located at the place of residence of the donor.
Next, an application is drawn up, and papers are sent for state registration. A sample of its registration can be obtained from the registration authority.
From the employee of the registration authorities you need to get a receipt and a document indicating the date of manufacture of the papers.
On the appointed day, you need to appear for ready-made donation papers. You should also take the completed documents.

Remember that the registration authority has the right to refuse registration. To avoid this, you can consult the registration service on how to draw up papers correctly. When the errors are corrected, you can contact the service again.

The process of issuing a deed of gift at a notary

This procedure is considered more expensive, but less nervous on both sides. The parties will not need to collect additional paperwork, as they will be collected by a specialist.

When applying for a donation, you will need the following documentation:

passport;
certificate of ownership of the received property;
certificate of state registration of the right to property;
technical passport of the object;
power of attorney. It is needed when the document is signed by a representative;
permission from the other spouse. It is required when property acquired in marriage is transferred;
permission from the guardianship and guardianship authorities.

After all documents are submitted, the notary may ask to pay the following fees:

state duty for certification of paper;
pay for the services of a notary who will draw up the document;
state duty for issuing a certificate of state registration for the right of ownership;
taxes on income from registered property.

When registering papers with a notary, the state duty for a certificate of registration of rights is provided to the notary. He then makes an application to the registration service and draws up a gift.

Who pays taxes

Only close relatives can not pay the tax. For other persons, the tax is calculated as follows:

If the property is not assessed, then the amount of tax depends on the following circumstances:

Depending on the amount specified in the real estate donation agreement. Remember that since 2017 it has been compared with the cadastral and market value, but it should not exceed the market value by 20%. Recall that the market price is considered to be the price of similar objects.
Depending on the total cadastral value. From 2017, the amount of real estate subject to tax should not exceed 70% of the cadastral value.

Remember that the validity of a donation for real estate is not limited by the legislative framework.

What responsibility threatens a person who did not pay the tax on time

If a person does not submit documents on time and does not pay tax, then he faces the following types of liability:

In the absence of a declaration in the form of 3-NDFL or if it is not submitted on time, a person should pay 5% of the total amount of tax. However, the total amount should not exceed 30%. This is regulated by Article 119 of the Tax Code of the Russian Federation.
In the absence of a declaration and receipt of payment of taxes, the penalty is 20% of the tax amount. This process is described in article 122 of the Tax Code of the Russian Federation.
When filing a declaration, but not paying personal income tax within a strictly established time frame, a fine will not be charged. However, the fine will be 1/300 of the Central Bank of the Russian Federation.

How to revoke a paper that was issued to the next of kin

If both parties to the contract agree to this action. Initially, they turn to the notary who carried out the transaction. Then the person to whom the property was transferred draws up a refusal to use the property. After that, they submit documents to the registration chamber.
If the person receiving the property died before the owner. Remember that you can return the donated property only when this action is fixed in the agreement.
If the recipient of the property does not want to return it, then the donor will have to go to court.

Can a donation be cancelled?

It is difficult to cancel the decision, but this procedure can be carried out under the following conditions:

if the gifted person committed a crime against the owner. This is necessarily supported by evidence;
if the person receiving the gift treats him badly, which is confirmed by witnesses;
if the execution of the deed of gift was made with errors.

How to donate property to a minor

If the paper is issued to a person who has not reached the age of majority, then in addition to the above documents, consent from the guardianship and guardianship authorities will be required. If the donated property has a share that belongs to the child, then permission will also be required from the guardianship and guardianship authorities. Model agreements are usually located at the registration authorities.

How to donate a share in an apartment

A person who has a share in property has the right to donate it to any person. Remember that you cannot give gifts only to your teachers. It is also important to know that you should not inform the other owners of the property that the share will be donated. An experienced specialist will be able to answer in more detail how to donate real estate.

Steps for issuing a donation:

We draw up a gift agreement indicating the donated share and technical characteristics of all property.
We receive an agreement from the spouse, which must be notarized. Remember that the permit must be of a special type.
If the share belongs to a minor citizen, then consent from the guardianship and guardianship authorities will be required.
Next, you need to sign a contract drawn up in a special form and register with Rosreestr with the transfer of ownership.

Remember that personal income tax for the transfer of real estate between close relatives is not paid. In other cases, it is paid by the citizen receiving the property.

Making a donation of real estate is not so difficult. The main thing is to study the whole procedure, get acquainted with the difficulties and nuances that arise and collect the required package of documents.

gift tax

Often, citizens, having received a valuable gift, think about whether it is necessary to pay tax on donated property, whether they are required to file a declaration and report the gift to the tax authority. These issues are especially disturbing if an apartment, car or other expensive property is donated.

General provisions on donation

General rules on donation are established by Chapter 32 of the Civil Code of the Russian Federation (CC RF). In accordance with Article 572 of the Civil Code of the Russian Federation, a donation is carried out in the form of an oral or written agreement, according to which one party (the donor) transfers or undertakes to transfer to the other party (the donee) a property right or thing in ownership free of charge.
A donation agreement must be concluded in writing in the following cases:

The donation is carried out by a legal entity, and the value of the gift is more than 3,000 rubles.
A promise to donate property in the future. However, if a citizen intends to donate something after death, then such a transaction is illegal, since it is attributed by law to inheritance.
The donation agreement is subject to state registration. This applies to cases of receiving a gift in the form of real estate, a vehicle, etc.

In other cases, the transfer of a gift is made without a written agreement by its delivery, symbolic transfer, delivery of title documents.

When is gift tax due?

The procedure for paying personal income taxes (PIT) is regulated by Chapter 23 of the Tax Code of the Russian Federation (TC RF). Based on the meaning of the named chapter, income in the form of shares, shares, shares, vehicles and real estate, including those received as gifts, are subject to personal income tax. Real estate includes land plots, plots and objects of construction in progress and everything that is firmly connected with land (Article 130 of the Civil Code of the Russian Federation). The tax on donated property and any other income of an individual is 13%.
Thus, having received a gift in the form of an apartment, car and other property listed above, you must contact the tax authority at the place of residence and fill out a 3-NDFL declaration, in which you indicate the property received as a gift and its value. The cost must be specified in the donation agreement. If there is none, then the tax is calculated from the market value. An underestimation of the value in a donation agreement is unacceptable, since the tax inspector has the right to conduct an audit and, if an understatement is found, you will have to pay not only tax, but also a fine, arrears and penalties.
If you have any questions or difficulties when calculating personal income tax or filling out a declaration, you can contact a tax consultant free of charge or pay a fee to a commercial organization.
The deadline for filing the declaration is April 30 of the year following the year when the property was received as a gift. The tax must be paid no later than November 1. Penalties are provided for late actions.
If a gift is received by an individual from an organization, then he does not need to apply to the tax authority to declare it. In accordance with Article 226 of the Tax Code of the Russian Federation, an organization, as a tax agent, is obliged to determine the tax base and independently withhold personal income tax from the value of the gift.

When is a gift not subject to VAT?

Article 217 of the Tax Code of the Russian Federation contains a list of cases when income is not subject to taxation.
According to paragraph 18.1, the tax is not paid if an individual received an ordinary gift from another individual in cash or in kind. That is, if you have been given a sum of money of several thousand rubles, a TV, a refrigerator and any other thing, then you do not need to report this to the tax office.

Also, personal income tax is not charged if a citizen received a gift of real estate, a vehicle, shares, shares or shares from family members or close relatives.

When determining this circle of persons, the Tax Code of the Russian Federation appeals to family law. In accordance with the Family Code of the Russian Federation, they include spouses, parents, children (both relatives and adopted children), grandfathers, grandmothers and grandchildren, full and half-blooded (having only one common parent - father or mother) brothers and sisters.
To avoid taxation, citizens must be related on the date of transfer of ownership of property to the donee. In particular, if by the time of registration of the property right the spouses have dissolved the marriage, then one of them (the donee) will have to pay tax.
Relationship must be documented. In addition, in order to avoid a tax audit, even if the property was received as a gift from relatives, it is necessary to apply to the tax authority with a package of documents for the received property and documents confirming kinship.

For property purchased during the marriage, but for funds owned by one of the spouses personally, the regime of joint property of the spouses does not apply, pointed out in a review of the judicial practice of the Collegium for Civil Cases.

The man filed a lawsuit against his ex-wife for the division of jointly acquired property. He indicated that during the period of marriage he had acquired an apartment with his wife, and asked to recognize his ownership of 1/2 of the share of this property. However, his ex-wife insisted that he could only count on 1/15 of the share, since most of the cost of the apartment - 1.75 million rubles. she paid.

The court found that the parties during the marriage bought the apartment and registered it as joint property. The purchase price was RUB 1.99 million. At the same time, part of the money in the amount of 1.75 million rubles spent on the purchase of real estate was received by the spouse (defendant) from the mother under a donation agreement. Satisfying the claims for the division of the disputed apartment between the spouses in equal shares, the court of first instance was guided by the fact that the woman, at her own discretion, spent the money received as a gift on common needs with her husband - the purchase of real estate. Therefore, this property is subject to the regime of joint property of the spouses. The appeal further concurred with those findings.

However, the collegium for civil cases of the Armed Forces saw in them a violation of substantive law. In accordance with Art. 34 of the Family Code, property acquired by spouses during marriage is their joint property. The common property of the spouses is also movable and immovable things purchased at the expense of common income, regardless of the name of which of them they were acquired or which of the spouses contributed money. At the same time, according to paragraph 1 of Art. 36 of the UK, property that belonged to each of the spouses before marriage, as well as property received by one of the spouses during marriage as a gift, by inheritance or other gratuitous transactions, is his property. According to the clarifications from the resolution of the Plenum of the Supreme Court of November 5, 1998 No. 15 "On the application of legislation by the courts when considering cases of divorce", the property acquired, although during marriage, is not common property, although acquired during marriage, but on the personal funds of one of the spouses that belonged to him before entry in marriage, received as a gift or by inheritance, as well as things for individual use, with the exception of jewelry and other luxury items.

It follows that

a legally significant circumstance in deciding whether to classify property as common property of the spouses is what funds (personal or common) and under what transactions (compensated or gratuitous) the property was acquired by one of the spouses during the marriage. Acquisition of property during the period of marriage, but with funds that belonged to one of the spouses personally, excludes such property from the regime of common joint property.