Tax deduction for inheritance. Can a spouse receive a property deduction for a deceased spouse? How does the tax office know that an apartment was purchased from a relative?

Federal Tax Service on the issue of receiving a property tax deduction by a spouse who is the heir of a deceased spouse, if he has not previously used such a deduction, in the amount of the part of the property tax deduction not used by the deceased spouse, regardless of which spouse the purchase agreement was drawn up for apartments, reports the following.

During the period of marriage, the spouses purchased an apartment, the ownership of which was registered in 2011 in the name of one of the spouses, who applied to the tax authority to receive a property tax deduction provided for in subparagraph 2 of paragraph 1 of Article 220 of the Tax Code of the Russian Federation (hereinafter referred to as the Code) , and received part of this deduction for the 2011 tax period. In August 2012, the husband died.

According to subparagraph 2 of paragraph 1 of Article 220 of the Code, when determining the size of the tax base, the taxpayer has the right to receive a property tax deduction in the amount of expenses actually incurred by the taxpayer, but not more than 2,000,000 rubles, in particular, for the purchase of an apartment, room or share(s) in them.

If the purchaser of an apartment died after he began receiving the property tax deduction due to him, the right to receive the remainder of the property tax deduction does not pass to the person inheriting his share, since the Code does not provide for the transfer to the heir of the right to the property tax deduction belonging to the testator .

At the same time, Articles 33 and 34 of the Family Code of the Russian Federation establish that property acquired by spouses during marriage is their joint property, and the legal regime of the property of the spouses is the regime of their joint ownership.

At the same time, the property acquired by the spouses during the marriage (common property of the spouses) includes the income of each spouse from labor activity, entrepreneurial activity and the results of intellectual activity, pensions received by them, benefits, as well as other monetary payments that do not have a special purpose ( amounts of financial assistance, amounts paid in compensation for damage in connection with loss of ability to work due to injury or other damage to health, and others). The common property of the spouses also includes movable and immovable things acquired at the expense of the spouses' common income, securities, shares, deposits, shares in capital contributed to credit institutions or other commercial organizations, and any other property acquired by the spouses during the marriage, regardless of whether in the name of which of the spouses it was purchased or in the name of which or which of the spouses contributed funds.

Paragraph 1 of Article 256 of the Civil Code of the Russian Federation also establishes that property acquired by spouses during marriage is their joint property, unless an agreement between them establishes a different regime for this property.

From the above it follows that the spouse - heir of the deceased spouse has the right, on an independent basis, to apply in the prescribed manner to the tax authority to receive a property tax deduction, if he has not previously used such a deduction, in the amount of the part of the property tax deduction not used by the deceased spouse, regardless of from which spouse the contract for the purchase of the apartment, the right of ownership of the apartment and documents confirming the fact of payment of funds for the expenses incurred for the purchase of the apartment were drawn up.

In this case, a tax return in form 3-NDFL and other documents provided for in subparagraph 2 of paragraph 1 of Article 220 of the Code must be submitted to the tax authority in order to receive a property tax deduction.

The Department of Tax and Customs Tariff Policy reviewed the letter about receiving a property tax deduction provided for in paragraphs. 2 p. 1 art. 220 of the Tax Code of the Russian Federation (hereinafter referred to as the Code), and in accordance with Art. 34.2 of the Code explains the following.

It follows from the letter that during the period of marriage the spouses purchased an apartment, the ownership of which was registered in 2011 in the name of one of the spouses.

The said spouse applied to the tax authority to receive a property tax deduction provided for in paragraphs. 2 p. 1 art. 220 of the Code, and received part of this deduction for the 2011 tax period.

In August 2012, the husband died.

According to paragraphs. 2 p. 1 art. 220 of the Code, when determining the size of the tax base, the taxpayer has the right to receive a property tax deduction in the amount of expenses actually incurred by the taxpayer, but not more than 2,000,000 rubles, in particular, for the purchase of an apartment, room or share(s) in them on the territory of the Russian Federation .

At the same time, Art. Art. 33 and 34 of the Family Code of the Russian Federation establishes that property acquired by spouses during marriage is their joint property, and the legal regime of the property of the spouses is the regime of their joint ownership.

In paragraph 1 of Art. 256 of the Civil Code of the Russian Federation also establishes that property acquired by spouses during marriage is their joint property, unless an agreement between them establishes a different regime for this property.

From the above it follows that the spouse - heir of the deceased spouse has the right, on an independent basis, to apply in the prescribed manner to the tax authority to receive a property tax deduction, if he has not previously used such a deduction, in the amount of the part of the property tax deduction unused by the deceased spouse, regardless of the one in whose name the agreement for the purchase of the apartment was drawn up, the right of ownership of the apartment and documents confirming the fact of payment of funds for the expenses incurred for the purchase of the apartment.

In this case, a tax return in form 3-NDFL and other documents provided for in paragraphs. 2 p. 1 art. 220 of the Code to obtain a property tax deduction.

Deputy Director

Tax Department

and customs tariff policy

This question arises when one of the spouses was unable to fully use the tax deduction on acquired property due to death.

In general, the legislation on taxes and fees does not provide for the transfer of taxpayer rights, including property deductions, to legal successors (Letter of the Federal Tax Service dated July 23, 2012 No. ED-4-3/12132@).

However, in some cases, regulatory authorities believe that the unused balance of the deduction (part of the unused balance) can be obtained. At the same time, they take into account the ownership regime established for residential real estate and the execution of documents. (For more information on the use of the property deduction by spouses under various property regimes, see How is the property deduction applied if housing was purchased by spouses?)

Regime of common joint ownership.

Since the distribution of the deduction under this regime is recorded in a statement signed by both spouses, then in the event of the death of one spouse, the surviving spouse may qualify for a new redistribution of the property deduction . If, according to the application, he was entitled to part of the deduction, then after entering into an inheritance he can receive a deduction in full, taking into account the amounts already provided (Letter of the Ministry of Finance dated January 25, 2010 No. 03-02-08/5).

Example . The couple bought a house as joint property for RUB 3,000,000. Claiming a property deduction, they submitted to the tax office an application for the distribution of the deduction: the wife applies 70% of the deduction to her income ((RUB 2,000,000 × 70%) = RUB 1,400,000), and the husband applies 30% of the deduction ((2 RUB 000,000 × 30%) = RUB 600,000). The next year the husband died. The deduction that the spouses managed to take advantage of was: wife - 300,000 rubles, husband - 100,000 rubles.

After the new distribution, the wife has the right to receive a property deduction in the amount of 1,600,000 rubles (1,400,000 rubles – 300,000 rubles + 600,000 rubles – 100,000 rubles).

It may be that the purchased housing is registered entirely in the name of one spouse and the property deduction in full is claimed by him. Then in case of death this spouse's absence of an application for distribution of the deduction makes it impossible for the second spouse to receive the remainder of the deduction (Letter of the Ministry of Finance dated May 31, 2010 No. 03-04-05/7-297).

Regime of common shared ownership.

When property is acquired during marriage and shared ownership is established on it, the property deduction is distributed between the spouses in proportion to their shares in ownership (paragraph 25, subparagraph 2, paragraph 1, Article 220 of the Tax Code).

In the event of death, the deduction belonging to the testator is not transferred to the heir-spouse. The surviving spouse can claim a property deduction regarding the share of the deceased inherited by him (Letter of the Ministry of Finance dated September 19, 2012 No. 03-04-08/4-311).

Example . In 2012, the spouses purchased an apartment in common equal ownership for RUB 1,800,000. The deductions that the spouses were going to claim for their shares are equal to 900,000 rubles. for everyone. That same year, the husband died without being able to take advantage of the property deduction. Based on a certificate of inheritance issued by a notary (the wife and two children each inherit 1/3 of the spouse’s share in the apartment), the wife has the right to claim a property deduction as an heir to the deceased’s share in the amount of 300,000 rubles (900,000 rubles / 3) in addition to to your deduction.

A taxpayer who pays tax on income (except for dividends) in the territory of the Russian Federation at a rate of 13% has the right to receive a property deduction in the amount of up to 2,000,000 rubles if he acquires ownership of housing with his own funds or borrowed funds. Some categories of citizens listed in paragraph. 3 tbsp. 224 of the Tax Code of the Russian Federation, although they receive income taxed at a rate of 13%, cannot receive such a deduction.

However, sometimes the question arises: “ Is it possible to get a tax deduction when buying an apartment from relatives?

To answer it, it is necessary to understand first of all who, for tax purposes, the legislator classifies as relatives or, as the Tax Code of the Russian Federation says, interdependent persons.

According to clause 11, part 2, article 105.1 of the Tax Code of the Russian Federation, the following are classified as interdependent persons:

wife husband);
parents (adoptive parents),
children (adopted),
full and half (when the same father or mother) brothers and sisters,
guardian and ward.

The transaction between them is considered to be concluded under the influence of dependence, which affects the price of the purchased residential premises up or down.

In addition to the purchase and sale transaction, other transactions can be signed, including between relatives, and tax legislation regulates the resulting legal relations in different ways.

Tax benefits when concluding an apartment donation agreement with a close relative

According to Article 572 of the Civil Code of the Russian Federation, the gift agreement is recognized as a gratuitous transaction and the only one who receives the gift is considered to have received income, and the opposite party bears the costs. Therefore, for tax purposes, it is the donee, and not the donor, who is required to pay tax in the amount of 13% of the value of the gift.

However, the legislator has provided a basis for exemption from payment of this tax if the parties to the transaction are close relatives, the circle of whom is defined in paragraph 2 of clause 18.1 of Article 217 of the Tax Code of the Russian Federation. The norms of the Family Code of the Russian Federation apply to these legal relations and the circle of persons is expanded. Grandparents and grandchildren are added to the above persons.

Example

In 2016, the grandfather gave his grandson an apartment with a cadastral value of 5,356,000 rubles. The grandson who accepts the gift will be exempt from paying tax.

These relations between relatives do not fall under the general rule on property deductions. Here, an exemption from the obligation to pay tax is provided.

Example

In 2016, the mother-in-law gave her son-in-law ½ share of the apartment, and the other half to her daughter. In this situation, the daughter will be exempt from paying 13% tax, and the son-in-law must pay 13% (and if the son-in-law is not a tax resident of the Russian Federation, then 30%) tax amount on the value of the gift, which, in accordance with Part 2 of Article 228 of the Tax Code of the Russian Federation is determined independently.

Tax deduction when concluding a purchase and sale agreement with a close relative

The buyer can expect to receive a deduction.

However, if the contract is concluded between persons in a close relationship, tax deduction when buying an apartment from relatives is not allowed, since they are classified by the legislator as interdependent persons, an exhaustive list of which is given in clause 11, clause 2 of Article 105.1 of the Tax Code of the Russian Federation and indicated above.

Example

The mother sold her son an apartment, the value of which is equal to the cadastral value and corresponds to the market value. It does not follow from the essence of the transaction that the determination of the price was in any way influenced by family relations. But even in this case, you will not be able to get a deduction.

In judicial practice, there were cases before 2012 when the judicial authorities sided with the taxpayer and recovered the amounts due for refund. However, today, such practice cannot be applied to transactions completed after 01/01/2012. This is stated in the letter of the Ministry of Finance of the Russian Federation dated January 31, 2012 No. 03-04-08/9-12, communicated to the tax authorities by letter of the Federal Tax Service of Russia dated April 19, 2012 No. ED-4-3/6609@

In 2019, the tax deduction for purchasing an apartment from relatives did not undergo any changes.

Tax refund when buying an apartment from relatives

Despite the practice that has been established for a long time, the question constantly arises of how return personal income tax when buying an apartment from relatives, since there is nothing easier than concluding a profitable contract with a loved one.

The answer to this is unequivocal - there is no legal way, even if the surnames of the parties to the transaction are different, during a desk audit the fact of relationship can be established.

In some cases, employees of the Federal Tax Service ask you to draw up a document in which you inform that you are not in a close relationship with the seller, since There is no tax deduction when buying an apartment from a relative.

But don't be upset. There is a way out of almost any situation. You can, for example, resell an apartment through third parties.

Example

The father wants to sell his apartment to his son, Ivan, but so that he receives a deduction, since the latter is an income tax payer. In this situation, the parent sells the apartment to his friend, and he resells it to Ivan. And so that the intermediary friend does not pay tax on the sale, he must sell it for the same price as he bought it, without receiving income from the resale.

Tax deduction when buying an apartment from your mother-in-law or mother-in-law

Previously, the legislator classified the relationship of daughter-in-law - mother-in-law, son-in-law - mother-in-law as a relationship of property. To date, this concept has been excluded from the Tax Code of the Russian Federation.

Therefore, these persons are not considered relatives between whom the purchase and sale transaction affects the receipt of a tax deduction.

But here too there are some peculiarities. If there is a mother-in-law and mother-in-law, then there are married spouses. And as you know, the presence of a registered marriage affects the regime of joint ownership. When concluding an agreement with the mother-in-law on one side and the spouse on the other, the deduction may be denied. Because the woman is in a close relationship with one of the spouses (whose shares are not defined).

Resourceful citizens have found a way out of this situation by concluding marriage contracts, according to which the property becomes the property of only one spouse who is not related to the seller.

Example

The mother-in-law is selling an apartment to her son's family. The latter enters into a marriage contract with his wife, according to which the property after the transaction will become her personal property. The daughter-in-law, who is not a relative, will receive a deduction in full. (Problems will arise only in the event of divorce and the husband attempts to sue, allegedly according to the law, his share in the apartment).

In practice, there are cases when real estate is sold through third parties, but the funds for the purchased apartment are paid directly. In this situation, property deduction if money is transferred to close relatives, is not relied upon and will not be provided.

In accordance with clause 7 of Article 105.1 of the Tax Code of the Russian Federation, at the request of the Federal Tax Service Inspectorate, the court may recognize other persons as dependent on each other, who are not specified in Part 2 of Article 105.1 of the Tax Code of the Russian Federation, if the substance of the transaction, and in this case the price of the real estate sold, was influenced influence of persons being in the property. The burden of proving this circumstance will rest entirely with the applicant. But practice shows that the Federal Tax Service practically does not address such requirements.

Deduction under an agreement with father or mother, daughter or son

Regardless of the component of the transaction for the purchase of housing between persons who are related, such agreements do not fall under Article 220 of the Tax Code of the Russian Federation and do not give rise to obligations for the Federal Tax Service to refund income taxes.

The Supreme Court of the Russian Federation put an end to all disputes, which, in its ruling dated June 3, 2015 No. 38-KG15-3, explained in detail the impossibility of using the deduction in such situations.

This rule, of course, does not apply to cases of concluding a transaction between a stepmother or stepfather, on the one hand, and a stepson (stepdaughter) on the other hand. Formally, these persons may be called mother and father, daughter or son, but legally they will not be related.

How does the tax office know that an apartment was purchased from a relative?

There are often cases when, based on last names and other data, tax officials cannot determine whether persons have any relationship with each other, and let’s say they did not ask you to indicate in your application that you are not related to the seller of the real estate.

If you are officially employed, regularly pay income tax to the state from year to year, and still have not taken advantage of your right to receive a tax deduction when buying an apartment, building a house and compensation for interest on a mortgage, then you should definitely read this article from beginning to end. end.

Your right to a tax deduction is legislated and described in detail in Article No. 220 of the Tax Code of the Russian Federation, and will also be explained in detail and with specific examples by our leading lawyer.

Today we will tell you about all the intricacies of applying for a tax deduction when buying an apartment, taking into account all the changes in legislation for 2019, and we will also explain in detail to whom, when, how much and how you can get a refund for buying an apartment.

If you have any specific questions on this topic, our online lawyer is ready to advise you promptly and free of charge directly on the website. Just ask your question in the pop-up form and wait for an answer. This way you can quickly and more clearly understand your rights to receive a tax deduction.

The most common questions that our lawyers encounter are: who and how many times can receive a tax deduction when buying an apartment. We answer:

Every officially employed citizen of the Russian Federation has the legal right to receive a tax deduction for the purchase of an apartment, for whom the employer deducts monthly income tax from his work activity in the amount of 13%. In the same amount (13%), a citizen can return money from purchased real estate, or more precisely in the following cases:

Direct purchase of housing (apartment, house, room);
Building your own home;
Any expenses for repairs and finishing of newly built residential property (the main thing is to keep all receipts);
You also have the right to get your money back for paying interest on your mortgage loan.

Who will not be able to get their money back?

You won’t be able to get your income tax back for purchasing an apartment if:

You purchased an apartment before January 1, 2014 and have already exercised your right to deduction;
If you purchased real estate after January 1, 2014, but have reached your limit (more on this below);
If you purchased real estate from a close relative (mother, father, daughter, son, brother, sister);
If you are not officially employed (and accordingly do not pay income tax);
If your employer took part in the purchase of the apartment (for example, the company you work for paid for some part of the housing you purchased);
If, when purchasing an apartment, you took advantage of some government programs or subsidies, for example, maternity capital.

How many times can you receive a tax deduction when buying an apartment?

There are two possible answers to this question:

If your apartment or other real estate was purchased before January 1, 2014, then according to Article 220 of the Tax Code of the Russian Federation (paragraph 27, paragraph 2, paragraph 1), you have the right to use the tax deduction only once in your life, and it does not matter when square meters cost you the price. For example, if a home was purchased for 500,000 rubles, then the maximum amount you can count on is 13 percent of 500,000, i.e. 65,000 rubles. And that is all!
If you purchased housing after January 1, 2014, then you can count on a multiple tax refund, but within the limits of 260,000 rubles, since the maximum amount established by the state for a refund from the purchase of real estate is equal to two million rubles. Read more about how much money you can get back, as well as specific examples, further in this article.

How much money will be returned?

So, how much state compensation can you expect when purchasing an apartment after January 1, 2014? We answer:

Your maximum limit for income tax refund from the purchase of an apartment is 2,000,000 rubles (for your entire life). You can return 13% of this amount, i.e. 260,000 rubles and nothing more.

For each calendar year, you can return an amount equal to your income tax, which your employer pays to the state for you (13 percent) for the reporting year, while the balance of the funds due to you does not expire, and in subsequent years you will also be able to issue a refund until don't reach your limit.

But you have the right to submit income declarations to the tax office only for the current year or for a maximum of three previous years, but more on that a little later. First, let's finally figure out the amount of tax compensation you can count on when buying an apartment. To make everything completely and completely clear, let’s look at two specific examples.

An example of calculating a tax deduction for the purchase of an apartment

Example 1: At the beginning of 2015, you bought an apartment for 2,500,000 rubles. You officially worked all year and received a salary of 60,000 rubles per month. Thus, at the beginning of 2016, you have the right to contact your tax office at your place of residence and write an application for a refund for the purchased property. The maximum that you are entitled to in this case is 13% of 2,000,000, i.e. only 260,000 rubles. Because your annual income tax deductions for 2015 amounted to a total of 93,600 rubles (60,000 * 0.13 * 12), then you can count on this exact refund amount (93,600) in 2016. The rest of the money will be returned to you in subsequent years if you are still officially employed. For example, in 2016 you officially worked for only three months with a salary of 20,000 rubles, so at the beginning of 2017 you can receive a tax deduction equal to 7,800 rubles (20,000 * 0.13 * 3). Thus, for subsequent years you will still have an amount left for return equal to 158,600 rubles (260,000 - 93,000 - 7800).

Example 2. You purchased an apartment worth 1,500,000 and received a tax deduction for its purchase. In this case, you can count on 195,000 rubles (13% of 1,500,000). But later you bought another apartment worth 2,000,000 rubles. Accordingly, according to the law, you can return another 65,000 rubles (13% of 500,000) from this purchase, since the total limit for return is limited to 2,000,000 rubles.

Required documents

To get your tax refund for purchasing an apartment, you first need to draw up an application according to the established template and provide all the documents listed below with copies to your tax office at your place of residence.

So, the list of necessary documents approved for 2018 to obtain a property tax deduction is as follows:

Copy of the passport;
Apartment purchase and sale agreement + copy;
Title documents for the object: a copy of the certificate of registration of ownership, or the act of transferring ownership of the apartment (if the apartment was purchased in a building under construction under an equity participation agreement);
Copies of documents confirming payment for the purchased property (checks, bank transfer statements, payment slips, etc.);
A copy of your certificate of assignment of Taxpayer Identification Number (TIN);
Certificate of income from place of employment in form 2-NDFL;
It is also necessary to provide a declaration of your annual income in Form 3 of Personal Income Tax for the past calendar year;
Completed application for tax refund.

In addition to the above mandatory documents, the tax authority may also require you to fill out applications for the distribution of deductions between spouses if you are officially married. Below you can download and review samples of applications required to be filled out.

To get a tax refund for the previous 3 years, you also need to fill out returns for 2017 and 2016.

When should I submit documents and for what period can I get a tax refund?

You can submit documents for a property tax refund when purchasing an apartment, starting from the moment you have fully paid for the purchased housing and received the documents for the right to own real estate:

Certificate of registration of ownership - in case of purchasing square meters under a sales contract;
An act of transfer of ownership of an apartment - if the property was purchased in a house under construction under an equity participation agreement.

You must also have in your hands all payment documents confirming your expenses for the purchased housing.

As a rule, submission of documents for a refund occurs at the beginning of each calendar year. It is best to contact the tax office in the second half of January (immediately after the New Year holidays).

In addition, if you purchased an apartment several years ago, then you can also receive a tax deduction for it, and you have the right to file an income tax return for the three previous years. Those. for example, you bought an apartment in 2016 and forgot to exercise your right to a tax refund. Five years later, in 2021, you came to your senses and contacted the tax office with a corresponding application. All these five years you worked honestly and had an official income, but you will only be able to use your contributions to the treasury in just three years preceding the moment you applied for the deduction. In this case, these are 2020, 2019 and 2018. If during this time your total income tax was less than the refund amount due to you (see the item “How much money will be returned?”), then you can easily receive the rest of the amount in subsequent years.

The process of obtaining a tax deduction

The best way: obtain it yourself by contacting your tax office. You may have to fuss a little and run around for certificates, collecting them from different authorities, but in the end the procedure will turn out to be much cheaper than contacting a specialized company.

If you don’t want to do this yourself, or you simply don’t have time for it, then our online lawyer is ready to give you a free consultation on how you can significantly speed up and simplify this entire process.

To receive a property tax deduction in 2018, you need to fill out a new declaration in the established form 3-NDFL and attach it to the collected documents (it is also included in the list of required documents).

Together with copies, the package of documents is handed over to the tax service employee on duty, after which he will check them within a certain time and, if everything was done correctly, you will soon receive the long-awaited money transfer. As a rule, applications are reviewed and decisions are made within two to four months.

How can I get a cash deduction from my employer?

You can receive a tax deduction for the purchase of an apartment without contacting the tax office. More precisely, you will have to go there only once in order to confirm your right to a tax deduction. To do this, you will need to prepare copies of all the documents described above and fill out an application “to confirm the taxpayer’s right to receive property tax deductions,” the form of which you can download below.

After receiving a written notice from the tax office confirming your right to a deduction (it usually takes about 30 days for the tax authorities to review the application and prepare a decision), you need to contact your direct employer and provide him with this notice of the right to receive a tax deduction. From the month you provide such notice, the accounting department must calculate your salary without deducting income tax.

Our duty lawyer will advise you free of charge on how to do this correctly. Just ask him the appropriate question in the pop-up form and wait for an answer.

Also, if you still have any gaps in understanding your rights and the necessary actions to return income tax after purchasing an apartment, our specialists will advise you online for free.

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