Question:
I live in communal apartment. How is the amount of property tax for individuals determined in relation to a room in a communal apartment? Kuzhuget B.Answer:
In accordance with Article 1 of the Law Russian Federation dated December 9, 1991 No. 2003-1 (hereinafter referred to as the Law), taxpayers of the property tax for individuals are recognized as individuals, owners of property recognized as the object of taxation. In this case, the objects of taxation are residential buildings, apartments, cottages, garages and buildings, premises and structures.
According to Articles 15 and 16 Housing Code In the Russian Federation, residential premises that are objects of housing rights include a residential building, apartment, and room. In this case, a room is understood as a part of a residential building or apartment intended for use as a place of direct residence for citizens in a residential building or apartment.
The right of ownership of residential premises (including a room in a communal apartment), restrictions (encumbrances) of rights to it, their occurrence, transfer and termination are subject to state registration in accordance with Federal law dated July 21, 1997 No. 122-FZ “On state registration of rights to real estate and transactions with it.”
Thus, a room in a communal apartment is an independent object of taxation for personal property tax.
Based on Articles 41 and 42 of the Housing Code of the Russian Federation, the owner of a room in a communal apartment belongs to the right of common shared ownership premises in a given apartment used to service more than one room ( common property in a communal apartment), as well as common property in apartment building.
Features of calculating property tax for individuals in relation to property located in common property several persons are defined in Article 5 of the Law. However, these provisions do not apply to common property in a communal apartment and apartment building, since in in this case the object of ownership of the owners of premises in an apartment (house) will be the apartment or room, respectively, and not the entire residential building (communal apartment).
At the same time, the common property in a communal apartment (apartment building), like the common property of the owner of an apartment in an apartment building, is not recognized as an independent object of housing rights.
In addition, the Law does not provide for common property in a communal apartment (apartment building), as well as shares in the ownership of such property, as objects of taxation for the property tax of individuals.
1. Is there a tax on the sale of a dorm room?
Lawyer Cherednichenko V.A., 193043 answers, 73680 reviews, on the site from 05/12/2015
1.1. Good afternoon
Personal income tax is calculated in any case upon the sale of any real estate, including the sale of a dorm room.
It all depends on the cost of the room, so if the cost is below 1 million rubles, then in this case there is no need to pay tax (tax deduction).
Lawyer Orlova V.S., 85 answers, 51 reviews, on the site from 07/06/2017
1.2. Good afternoon
If the room has been owned for more than 5 years, or more than 3 years (if inherited), the income is exempt from tax. The declaration is not submitted.
Otherwise, you can reduce your income by a tax deduction of 1,000,000 rubles. or for the cost of purchasing a room. Be careful, you will need to file a return even if the tax is zero.
2. What is the tax on the sale of a room in a dormitory of 14 sq. m amount 600 tr.
Lawyer Khokhryakova L.V., 73656 answers, 28987 reviews, on the site from 07/06/2015
2.1. Hello! There will be no tax, since the cost is less than 1 million rubles. Article 220 of the Tax Code of the Russian Federation.
Lawyer Zekrina A.A., 119467 answers, 42229 reviews, on the site from 10/03/2013
2.2. there is no tax up to 1 million rubles, if the property has been owned for less than 3 years, you need to submit a declaration - Articles 217 and 220 of the Tax Code.
3. Is it true that you have to pay tax on the sale of a dorm room?
Lawyer Kriukhin N.V., 157458 answers, 68983 reviews, on the site from 07/14/2011
3.1. You need to pay if the price is more than 1,000,000 rubles.
4. I sold a room in a dormitory in 2015 for less than a million; it has been owned since 2011. Do I need to pay tax on the sale?
Lawyer Varakosov A.V., 38421 answers, 18458 reviews, on the site since 06/15/2011
4.1. No, you do not need to pay sales tax if you have owned the property for more than three years. There is no need to file a zero tax return either.
Lawyer Lobanova D. D., 561 answers, 493 reviews, on the site from 04/09/2018
4.2. Good afternoon Evgeniya.
In any case, the declaration must be submitted.
The tax will not arise since the real estate has been in your ownership for more than 3 years.
Best regards, Daria.
5. A dorm room was purchased in 2011 and at the end of 2017 it was demolished. According to the exchange agreement, the city administration allocated a room in the new house. I sold it at the beginning of 2018 for 800,000 rubles. Do I need to submit a declaration? And will they charge sales tax?
Lawyer Malykh A.A., 138,046 answers, 49,248 reviews, on the site since December 29, 2001
5.1. It is necessary to submit a declaration if it has been owned for less than 3 years. Just for 2018 - the declaration is submitted in 2019.
There will be no tax, the proceeds are less than tax deduction (1 000 000).
6. In November 2017, I bought an apartment for my adult, incapacitated son, a disabled person from childhood (now group 2). I bought it with money allocated by the state (as a beneficiary) and added my own from the sale of dorm rooms. The apartment cost us 1,100 thousand rubles. What personal property tax should we pay and is it necessary to pay it at all if our son falls under the category of beneficiaries?
Lawyer Ivashchenko A.V., 2993 answers, 1526 reviews, on the site from 05/07/2016
6.1. Hello, Olga Vladimirovna.
About what tax goes speech? Do you mean selling dorm rooms?
Depends on how long you owned it.
7. I was selling a room in a hostel for 210 rubles, initially the room was given to me, I didn’t buy it, when permission was given to privatize it, I privatized it and sold it right there, my child and I have 1/2 each, should I pay sales tax for the child.
Lawyer Levandovskaya A.V., 487 answers, 366 reviews, on the site from 12/05/2015
7.1. Good afternoon If after privatization the room was owned by the property for less than 3 years, then at the end of the year it is necessary to submit a personal income tax declaration to tax office at the place of residence. You need to submit 2 declarations - for yourself personally and for your share minor child. You can claim a property deduction in connection with the sale of housing up to 1 million rubles. Thus, the tax payable will not be calculated, but a declaration must still be filed.
8. At the beginning of 2014, my wife and I bought a dorm room in joint ownership for 300 tr. In 2016, we divorced her, the court divided her in half into shares, after which I bought her share from my wife for 250 tr. and became the full owner. Now I want to sell a room for 500 rubles, will I need to pay tax on the sale of the room? If yes, then from what amount?
Lawyer Zlatkin A.M., 35215 answers, 17101 reviews, on the site from 04/18/2015
8.1. Hello, in accordance with the norms current legislation In the Russian Federation and the established practice of its application, there is no need to pay tax; tax is paid on amounts over 1 million.
Lawyer Rachinsky D.V., 77 answers, 58 reviews, on the site from 08/01/2017
8.2. Good afternoon
For real estate objects acquired into ownership after 01/01/2016:
Income received by a taxpayer from the sale of real estate is exempt from taxation (and declaration) provided that such an object was owned by the taxpayer for a minimum period of ownership of the real estate or more.
The minimum maximum period of ownership of a real estate property is 3 years for real estate objects in respect of which at least one of the following conditions is met:
ownership of the object was received by the taxpayer by inheritance or under a gift agreement from an individual recognized as a family member and (or) close relative of this taxpayer in accordance with the Family Code of the Russian Federation;
ownership of the object was acquired by the taxpayer as a result of privatization;
ownership of the object was obtained by the taxpayer - the rent payer as a result of the transfer of property under a lifelong maintenance agreement with dependents.
In other cases, the minimum period of ownership of real estate is 5 years.
If the income from the sale of real estate is significantly lower than its real value (less than 70% of cadastral value of this object as of January 1 of the year of sale), then for tax purposes such income of the taxpayer is taken equal to the cadastral value of this object, multiplied by a coefficient of 0.7.
For real estate objects acquired in ownership before 01/01/2016, as well as for other property (garage, car, etc.) - minimum term tenure remains the same - 3 years.
Instead of using property deduction the taxpayer has the right to reduce the amount of income received from the sale of property by actually incurred and documented expenses directly related to the acquisition of this property. In certain situations, this may be more profitable than using a property deduction.
In other words:
- the tax base, provided that you owned the room for less than 3 (or 5 years) will be 13%
- if you present documents confirming the costs of purchasing a share, the tax base will be reduced to 13% of 250 thousand rubles.
- if you don’t want to pay taxes at all, then you need to wait 3 (5) years.
8.3. Good afternoon No, you do not need to pay tax, since you have the right to a tax deduction in the amount of 1,000,000 rubles, you sell cheaper, so the tax will be 0. However, you need to file zero declaration until April 30, 2018.
Lawyer Karasov S.P., 87834 answers, 44844 reviews, on the site from 08/08/2015
8.4. Hello! If you sell a room for an amount up to 1,000,000 rubles, then no personal income tax arises from the sale, and no personal income tax declaration 3 is filed.
Lawyer Akmalov A. G., 29231 answers, 13265 reviews, on the site since 03/30/2016
8.5. Hello! In this case, if it is less than 1 million rubles, then you do not need to pay tax.
Thank you for being with us, we were glad to help you!
9. We are selling a room in a dorm, the child has a share in the room, we have received permission from the guardianship, we have three transactions for one room, 1/3 donation, 1/3 purchase and sale and the rest of the child is also purchase and sale, now our agent speaks 1 /3 share is taxed, the room is being sold for 180 thousand rubles, the buyer does not want to pay tax in the amount of 10 thousand rubles, the question is whether tax is imposed on 1/3 share?
Lawyer Babkin M.A., 49331 answers, 31012 reviews, on the site from 03/06/2017
9.1. Good afternoon In this case, if the property has been owned for less than 3 years, then there will be a tax, however, there is a tax deduction of 1,000,000 rubles, therefore 1/3,333,333 rubles, but you are selling less than this amount, so you do not need to pay tax. You also indicated that there is a gift, if you give it to someone other than a close relative, then the recipient must pay a tax of 13 percent.
If you find it difficult to formulate a question, call the toll-free multi-line phone 8 800 505-91-11 , a lawyer will help you
1. I don’t receive letters about taxes for a dorm room! What to do?
Lawyer Shevchenko O.P., 177970 answers, 77650 reviews, on the site since 04/27/2009
1.1. If you own a room, you must pay property tax. If you do not receive receipts, you need to contact the tax office at your place of residence.
2. I have a room in a former dormitory. Do I have to pay property tax?
2.1. Hello,
Only the owner of the room pays property tax, so if you own the room, then you must
I wish you good luck and all the best!
Law firm LLC "PRAVOPRO", 20529 answers, 12038 reviews, on the site since 05/18/2017
2.2. Sergey, good afternoon!
If the room is registered as your property, then as the owner, of course, you should.
Best wishes to you!
3. Tell property tax is it charged for a dorm room?
Lawyer Evgrafova E.A., 75009 answers, 28514 reviews, on the site from 04/17/2010
3.1. Hello. If the room is owned, it is naturally charged.
All the best. Thank you for choosing our site.
Lawyer Kugeiko A.S., 86702 answers, 38673 reviews, on the site since 12/05/2011
3.2. Hello..
If the room is owned, tax is charged...
The exception is the category of persons who have benefits for paying property taxes
**
Any lawyer and lawyer,
I'm glad to answer your question!
We are doctors of severe cases,
We wish you well-being:) ©
4. Tax on a dorm room per year is 5,000 rubles - IS THIS REAL?
Lawyer Popov N.A., 13426 answers, 3347 reviews, on the site since November 28, 2010
4.1. We don’t set taxes and don’t know their amounts; that’s not our profile. Ask a question on the IFTS website.
5. What is the tax on a donated dorm room?
5.1. The recipient of the gift is required to pay tax. 13% is estate or gift tax under Chapter 251 Tax Code Russian Federation. Receiving a room as a gift does not give the right to a tax deduction, which the home buyer has the right to use once. (Based on clause 2 of Article 220 of the Tax Code of the Russian Federation, “the buyer has the right to receive a property tax deduction in the amount of actual expenses incurred... for the purchase of housing.”)
Currently, only immediate relatives, i.e., do not pay gift tax. , if the donor and recipient are family members or close relatives. The tax is not paid by the spouses, parents or children of the donor, his brothers, sisters, grandparents.
Lawyer Stepanov V.I., 35845 answers, 15709 reviews, on the site from 10/15/2011
5.2. 13% of the cost of housing.
6. If you build a dormitory/hostel with 6-8 rooms from containers and rent it out, what needs to be registered, should it be private housing land or something else? Or can you just install it, hand it over and not bother with taxes and paperwork?
Lawyer Ulanov A.S., 3453 answers, 1980 reviews, on the site from 12/09/2014
6.1. Hello!
Containers do not comply with Sanpin standards, fire safety and so on and so forth, so it’s not possible to just make a hostel out of them. This requires quite complex legal work to legitimize this entire project. I think it’s better for you to find a lawyer on the website and contact him in a personal message to prepare a legal basis and outline ways to legalize the hostel. Just advice won't help here.
7. I was given a dorm room as a gift, how do I find out the gift tax amount? Someone says that it is calculated from 100% of the cadastral value, someone says that it is calculated from 70%. How do I know?
Lawyer Stepanov A. E., 35124 answers, 23658 reviews, on the site from 07/21/2017
7.1. If close relative then there is no tax. If an outsider, then 13% of the cadastral value.
Sincerely.
8. I bought a dorm room a year and a half ago. Property taxes never came. Where can I get it? Thank you.
Lawyer Popov A. O., 1296 answers, 773 reviews, on the site from 09/05/2014
8.1. Go to the government services website and check your debt by entering your Taxpayer Identification Number (TIN) and passport details.
9. I want to sell a room in a hostel worth 500,000 rubles, was it privatized the other day? Do I have to pay tax?
Lawyer Karavaitseva E.A., 56339 answers, 26769 reviews, on the site since 03/01/2012
9.1. No, you won't have to pay tax. But a declaration will need to be filed.
10. I am 59 years old, I am a pensioner, I own two-room apartment, which I inherited by will from my parents, this year I bought a room in a dorm with an area of 17.9 sq.m., worth 385,200 rubles, what will payment of property taxes look like?
Lawyer Shishkin V.M., 62476 answers, 25459 reviews, on the site since 02/11/2013
10.1. You have a benefit for one taxable item of your choice. Therefore, look - where the cost is higher, then it is better for you to get a tax benefit.
Tax Code of the Russian Federation Article 407. Tax benefits
(introduced by Federal Law dated October 4, 2014 N 284-FZ)
1. Subject to the provisions of this article The following categories of taxpayers are entitled to tax benefits:
10) pensioners receiving pensions assigned in the manner established by pension legislation, as well as persons who have reached the ages of 60 and 55 years (men and women, respectively), who, in accordance with the legislation of the Russian Federation, are paid a monthly lifelong allowance;
3. When determining the amount of tax payable by a taxpayer, a tax benefit is provided in respect of one taxable item of each type at the taxpayer’s choice, regardless of the number of grounds for applying tax benefits.
4. Tax benefit is provided in relation to the following types of taxable objects:
ConsultantPlus: note.
pp. 1 clause 4 art. 407 (as amended by Federal Law No. 334-FZ dated August 3, 2018) applies to legal relations related to the calculation of property tax for individuals from January 1, 2017.
1) apartment, part of an apartment or room;
ConsultantPlus: note.
pp. 2 clause 4 art. 407 (as amended by Federal Law No. 334-FZ dated August 3, 2018) applies to legal relations related to the calculation of property tax for individuals from January 1, 2017.
2) a residential building or part of a residential building;
3) the premises or structure specified in subparagraph 14 of paragraph 1 of this article;
4) economic building or the structure specified in subparagraph 15 of paragraph 1 of this article;
5) garage or parking space.
ConsultantPlus: notes
11. When selling a room in a hostel under a gift agreement, worth less than 1 million rubles, will the recipient (not a relative) need to pay tax? And if possible, a link to the wording of the law. Thank you!
Lawyer Voinarovskaya M.P., 631 answers, 420 reviews, on the site from 10/30/2018
11.1. Hello Ekaterina Igorevna, the housing stock in the hostel is not subject to alienation or purchase and sale transactions (including donations).
If you find it difficult to formulate a question, call the toll-free multi-line phone 8 800 505-91-11 , a lawyer will help you
Tries to prove that he business transactions are subject to VAT, but the tax authorities vehemently deny this. A similar situation was dealt with in Resolution of the Supreme Court of the Russian Federation dated April 4, 2017 No. F01-737/2017 in case No. A82-1716/2016.
However, everything is clear if you consider that we are talking about a very significant deduction of “input” VAT. Let us note that one of the parties to the conflict was a business educational institution. To the credit of the taxpayer, he fought stubbornly and very inventively. To tell the truth, the impression was created that the judges rather “pushed” their decision in the case, rather than overwhelming their opponents with logic. Especially considering that the educational institution managed to convince the court of first instance that it was right (Decision dated September 1, 2016).
The essence of the conflict - briefly
To an educational institution based on an agreement equity participation During construction, premises on the 3rd – 5th floors in a residential building, intended for use as a dormitory, became the property.
The dormitory rents beds to its students and third parties, and also provides additional services. Both services and the cost of accommodation were subject to VAT to the taxpayer. In this regard, the “input” presented by the developer was accepted for deduction.
Tax officials decided that these business transactions (providing for use not residential premises, but part of residential premises (beds)) are not subject to VAT, and therefore tax refunds are illegal.
The educational institution objected that even in this case it still has operations, both taxable and not subject to VAT. And this allows him to use a special procedure for reimbursement and restoration of “input” VAT on objects capital construction.
Now let’s move on to the most interesting part – the details...
Taxable or non-taxable?
Is the provision of a bed in a dormitory subject to VAT?
Inspection version
In accordance with paragraphs. 10 paragraph 2 art. 149 of the Tax Code of the Russian Federation, the sale on the territory of the Russian Federation of services for the provision of residential premises for use in the housing stock of all forms of ownership is not subject to taxation.
By providing living space in a dormitory, the taxpayer provides services for the provision for use of residential premises of a specialized housing stock - a dormitory, intended by virtue of Art. 94 of the Housing Code of the Russian Federation for temporary residence of citizens during work, service and training.
As Art. 19 of the Housing Code of the Russian Federation, the housing stock is the totality of all residential premises located on the territory of the Russian Federation.
According to Art. 16 of the Housing Code of the Russian Federation, residential premises include a residential building, part of a residential building; apartment, part of an apartment; room.
Depending on the purpose of use in the composition housing stock Among other things, there is a specialized housing stock, which includes dormitories.
From these provisions, tax authorities conclude that housing in dormitories belongs to the housing stock.
According to paragraphs. 1 item 2 art. 170 of the Tax Code of the Russian Federation, VAT amounts charged to the buyer when purchasing goods, work, services, including fixed assets, are taken into account in the cost of such goods, work, services, including fixed assets, in cases of acquisition of goods, work, services, including fixed assets used for non-taxable transactions.
Since the works and services purchased by the educational institution for the construction of a dormitory are used in activities not subject to VAT, the amounts of tax paid to the customer-developer are taken into account in the cost of these goods and are not accepted for deduction.
Taxpayer version
The taxpayer approached the matter academically. He stated that in order to clarify the true meaning of paragraphs. 10 paragraph 2 art. 149 of the Tax Code of the Russian Federation, you must first study Art. 27 of the Federal Law of 05.08.2000 No. 118-FZ “On the introduction into force of part two of the Tax Code of the Russian Federation and amendments to some legislative acts Russian Federation on taxes". It said there that current edition pp. 10 paragraph 2 art. 149 of the Tax Code of the Russian Federation comes into force on January 1, 2004.
Before this date, the following transactions were exempt from VAT:
services for the provision of residential premises for use in the housing stock of all forms of ownership;
maintenance services, routine repairs, major renovation, sanitary maintenance, management of household operation, carried out at the expense of targeted expenses in the houses of housing cooperatives;
services for the provision of housing in dormitories (except for the use of housing for hotel purposes and rental).
But then it turns out that currently there is no exemption from VAT for services for the provision of housing in dormitories. For tax purposes, the legislator distinguishes between services provided in use residential premises and services providing housing in dormitories.
According to Art. 50 of the Housing Code of the RSFSR, which was in force until 03/01/2005, the use of residential premises in houses of the state and public housing stock is carried out in accordance with the rental agreement for residential premises.
By virtue of Art. 51, 52 of the Housing Code of the RSFSR, the contract for the rental of residential premises in houses of the state and public housing stock is concluded in writing on the basis of a warrant for residential premises between the landlord and the citizen-tenant. The subject of a rental agreement can only be an isolated residential space, consisting of an apartment or one or more rooms. Part of a room or adjacent rooms cannot be an independent subject of a rental agreement.
Article 671 of the Civil Code of the Russian Federation provides that residential premises may be provided for possession or use individuals based on the rental agreement. Moreover, in accordance with paragraph 1 of Art. 673 of the Civil Code of the Russian Federation, the object of a residential lease agreement may be an isolated residential premises suitable for permanent accommodation.
According to Art. 109 of the Housing Code of the RSFSR, dormitories in which they are provided with living space.
A dormitory refers to residential buildings specially built or converted for these purposes.
In accordance with clauses 10 and 11 of the Model Regulations on Dormitories, living space is provided in dormitories. Residential premises in dormitories are intended for temporary residence of citizens, which follows from Art. 94 Housing Code of the Russian Federation. Article 153 of the Housing Code of the Russian Federation establishes the obligation to pay for residential premises and public utilities.
Payment for the tenant of residential premises in a dormitory in accordance with Art. 154 of the RF Housing Code includes:
rental fee;
utility fees.
According to OKUN OK 002-93, services for the provision of residential premises for use are an independent type of activity.
Thus, the benefit established by paragraph. 10 paragraph 2 art. 149 of the Tax Code of the Russian Federation, applies only to rental fees, which corresponds to judicial practice(clause 1 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 5, 2007 No. 57 (clause 1) and Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 13, 2007 No. 9593/06).
According to Art. 156.1 of the Housing Code of the Russian Federation, the fee for renting residential premises includes:
expenses for construction, reconstruction, acquisition of the facility;
expenses associated with the maintenance and current repairs such an object;
expenses for major repairs of the facility;
other expenses.
The cost of living in a hostel educational institution consists of maintenance and utility costs. In fact, rent for residential premises is not charged in connection with the provision of social support during training.
Exemption of utility services from VAT is not provided - Letter of the Ministry of Finance of Russia dated October 09, 2012 No. 03-07-14/98.
According to the clarifications of the Ministry of Finance (letters dated June 18, 2010 No. 03-07-07/37, dated July 2, 2010 No. 03-07-11/283 and dated August 22, 2012 No. 03-07-07/88), as well as the tax department ( letters of the Federal Tax Service of Russia dated January 25, 2006 No. MM-6-03/62@, Federal Tax Service for Moscow dated June 30, 2010 No. 16-15/068676) in the case of provision of services for the provision for use of part of a room in a hostel, VAT exemption is not applies.
Since the educational institution provides beds, which, according to Art. 673 of the Civil Code of the Russian Federation does not fall within the definition of the object of a residential lease agreement, then the fee for the provision of these services is not exempt from VAT.
Court version
Operations for the sale of services for the provision of residential premises for use in the housing stock of all forms of ownership were subject to exemption from VAT both before and after 2004.
By virtue of paragraphs. 10 paragraph 2 art. 149 of the Tax Code of the Russian Federation, a necessary condition for the application of the benefit is the provision by the taxpayer for use of premises related to the housing stock. There are no other conditions for applying this benefit.
Since the Tax Code of the Russian Federation does not contain a definition of the concepts “residential premises” and “housing stock”, then on the basis of clause 1 of Art. 11 of the Tax Code of the Russian Federation, it is necessary to turn to other areas of legislation.
For your information. Living space- an isolated room, which is real estate and suitable for permanent residence citizens (clause 2 of article 15 of the Housing Code of the Russian Federation).
Housing stock is the totality of all residential premises located on the territory of the Russian Federation (Clause 1, Article 19 of the Housing Code of the Russian Federation). The housing stock is divided depending on the purposes of use (Clause 3, Article 19 of the Housing Code of the Russian Federation).
Residential premises in dormitories classified as residential premises of a specialized housing stock (clause 2, clause 1, article 92 of the Housing Code of the Russian Federation). Such premises are intended for temporary residence of citizens, including during the period of study (Article 94 of the Housing Code of the Russian Federation).
As follows from Art. 16 of the Housing Code of the Russian Federation, rooms in a residential building, including in a dormitory, are classified as residential premises.
Providing for the use of part of the premises does not change the social orientation of the benefit, and therefore services for the provision of beds in dormitories are services for the provision of premises for use and are not subject to VAT by virtue of paragraphs. 10 paragraph 2 art. 149 of the Tax Code of the Russian Federation.
The court did not accept the taxpayer’s argument that the payment for renting part of the residential premises in the dormitory included VAT-taxable utility costs.
According to paragraph 1 of Art. 671 of the Civil Code of the Russian Federation, under a residential lease agreement, the lessor undertakes to provide the tenant with residential premises for a fee for possession and use for living in it. At the same time, along with the obligation to transfer the residential premises to the tenant, the Civil Code of the Russian Federation includes its current maintenance and major repairs as the responsibilities of the landlord - clause 2 of Art. 676 and paragraph 2 of Art. 681 Civil Code of the Russian Federation.
Payment for residential premises must cover the costs of the landlord for the current maintenance and major repairs of the rented residential premises. However, according to paragraph 3 of Art. 678 of the Civil Code of the Russian Federation, utility payments are made by the employer independently. Therefore, the provision by an educational institution of dormitory accommodation services to its students under rental agreements is in any case a VAT-free transaction.
Immediately or later?
First - victory
Having lost in the main, the taxpayer tried to at least stretch out the restoration of the received VAT deduction over time. (We should immediately note that in this case the old version of clause 6 of Article 171 of the Tax Code of the Russian Federation was used. By Federal Law dated November 24, 2014 No. 366-FZ, this clause was edited: part of it was moved to the new Article 171.1 of the Tax Code of the Russian Federation, but there were no fundamental changes Did not happen.)
The taxpayer indicated that the Tax Code of the Russian Federation contains special provisions regarding VAT deductions for capital construction projects. In accordance with paragraph 6 of Art. 171 of the Tax Code of the Russian Federation, tax amounts presented to the taxpayer are subject to deductions contractors when they carry out capital construction of fixed assets.
If a property, after accepting VAT for deduction, is used for non-taxable transactions, the “input” VAT must be restored. Reinstatement is made annually for 10 years from the start of depreciation in the amount of 1/10 of the amount of VAT previously accepted for deduction, and in proportion to the share of non-taxable transactions.
For your information. Clause 6 of Art. 171 of the Tax Code of the Russian Federation provides the opportunity to accept for deduction in in full VAT on a capital construction project, which is used in both taxable and non-taxable activities, subject to its further restoration within 10 years (Letter of the Federal Tax Service of Russia dated November 28, 2008 No. ШС-6-3/862@).
The taxpayer emphasized that if the property is initially acquired for use in both taxable and non-VATable transactions, the right to deduct VAT in relation to such a situation according to the provisions of Chapter. 21 of the Tax Code of the Russian Federation is not clearly regulated. Based on the Letter of the Federal Tax Service of Russia dated November 28, 2008 No. ШС-6-3/862@, tax amounts presented to the taxpayer for acquired real estate objects are accepted for deduction in full after the registration of these real estate objects, regardless of what they are intended for for use simultaneously in both taxable and non-taxable transactions. After such facilities are put into operation, tax amounts accepted for deduction are subject to restoration and payment to the budget within 10 years.
The provided procedure (later transferred to Article 171.1 of the Tax Code of the Russian Federation) for the restoration of VAT on real estate does not allow the simultaneous application of this procedure and the provisions of paragraph 4 of Art. 170 Tax Code of the Russian Federation. This means that purchased real estate objects do not participate in separate accounting of “input” VAT.
The court drew attention to the fact that citizens living in the dormitory, in addition to the provision of beds, are also provided with paid services according to the price list, including a paid service for using a storage room, renting a TV, using a washing machine in the room for washing and drying clothes, using energy-intensive appliances in the room electrical appliances - electric kettles, refrigerators, microwave ovens.
Since these services are subject to VAT, the court recognized that the taxpayer had both taxable and non-VAT-taxable transactions involving the dormitory building.
Then - defeat
The tax authorities also did not give up, and the appeal was completely on their side.
The judges decided that the educational institution did not provide any VAT-taxable services related to the dormitory building!
The institution’s argument that they provided additional paid services according to the price list, including paid services for using a storage room, renting a TV, using a washing machine for washing and drying clothes, and using energy-intensive electrical appliances in the room, is rejected, since according to Section. I All-Russian classifier types of activities (OK 029-2014) provision of places for short-term accommodation includes, among other things, additional services. Volume and type additional services provided under this section may vary significantly. Therefore, the services specified by the taxpayer are additional to the service of providing hostel services.
Thus, at the time of acquiring the dormitory, the educational institution had no reason to believe that it would be used in both VAT-taxable and non-VAT-taxable transactions. Therefore, initially the deduction of “input” VAT relating to this hostel was illegal.
The cassation also sided with the tax authorities, supporting the conclusions of the appeal.
And again the question
So the taxpayer was defeated.
However, we have one more question. Is it then possible to consider the rental of property in a hostel for its guests not as a rental of property as such, but as part of the service of living in a hostel? In this case, rental of such property is not subject to VAT! (By at least, this follows from the court decision.) But will the tax authorities themselves agree with such an interpretation of the issue?