New edition Art. 217.1 Tax Code of the Russian Federation

1. Exemption from taxation of income specified in, received by individuals for the corresponding taxable period, as well as the definition tax base upon sale real estate carried out taking into account the features established by this article.

2. Unless otherwise established by this article, income received by a taxpayer from the sale of an immovable property item is exempt from taxation provided that such an item was owned by the taxpayer for a minimum period of ownership of the immovable property item or more.

For the purposes of this paragraph and paragraph 3 of this article in the event of the sale of residential premises or share(s) in it, provided as ownership in exchange for vacated residential premises or share(s) in it in connection with the implementation of the renovation program housing stock in the city of Moscow, when calculating the minimum maximum period of ownership of sold residential premises or shares (shares) in it, the period during which the taxpayer has owned these residential premises or share (shares) in it includes the period of ownership of the exempted residential premises or share (shares) in it ) in him.

When calculating the minimum maximum period of ownership of residential premises or shares (shares) in it, provided to the taxpayer in connection with the implementation of the housing renovation program in the city of Moscow, the provisions of paragraph 3 of this article are applied if the right of ownership to those exempted during the implementation of the specified program residential premises or a share(s) in it were received subject to compliance with at least one of the conditions provided for in paragraph 3 of this article.

3. For the purposes of this article, the minimum maximum period of ownership of an immovable property is three years for real estate in which at least one of the following conditions is met:

1) the right of ownership to an object of real estate was received by the taxpayer by inheritance or under a gift agreement from individual recognized as a family member and (or) close relative of this taxpayer in accordance with the Family Code Russian Federation;

2) ownership of the real estate property was acquired by the taxpayer as a result of privatization;

3) the right of ownership to an object of real estate was received by the taxpayer - the rent payer as a result of the transfer of property under a lifelong maintenance agreement with dependents.

4. In cases not specified in paragraph 3 of this article, the minimum maximum period of ownership of an immovable property is five years.

5. If the taxpayer’s income from the sale of real estate is less than cadastral value this object as of January 1 of the year in which the state registration of the transfer of ownership of the real estate object being sold, multiplied by a reduction factor of 0.7, for tax purposes, the taxpayer’s income from the sale of the specified object is taken equal to the cadastral value of this object as of January 1 of the year in which state registration of the transfer of ownership of the corresponding real estate object was carried out, multiplied by a reduction factor of 0.7.

If the cadastral value of the real estate object specified in this paragraph has not been determined as of January 1 of the year in which the state registration of the transfer of ownership of the specified object was carried out, the provisions of this paragraph do not apply.

6. The law of the subject of the Russian Federation down to zero for everyone or individual categories taxpayers and (or) real estate may be reduced:

1) the minimum maximum period of ownership of an immovable property specified in paragraph 4 of this article;

2) the size of the reduction factor specified in paragraph 5 of this article.

The individual entrepreneur sells real estate at a price below the cadastral value. Does the rule for individuals regarding taxation of income from an amount equal to 70% of the cadastral value apply to individual entrepreneurs?

This rule applies only if an entrepreneur sells property that he acquired after 01/01/2016 and did not use in entrepreneurial activity. If the property was used in business activities, then this rule no need to apply. The income from its sale will be income received from business activities. For income received from the sale of real estate in connection with business activities, the provisions of Article 217.1 Tax Code RF do not apply. This conclusion is confirmed by the letter of the Ministry of Finance of Russia dated November 23, 2016 No. 03-11-11/69180.

In accordance with paragraph 5 of Article 217.1 of the Tax Code of the Russian Federation for personal income tax purposes income from the sale of real estate will be considered no less than the cadastral value of the property, multiplied by a coefficient of 0.7. This procedure applies to real estate for which the seller received title no earlier than January 1, 2016. Otherwise, determine income according to the old rules (letters from the Russian Ministry of Finance and).

On what income should an entrepreneur pay personal income tax?

Income subject to personal income tax

The composition of income from business activities, which are subject to personal income tax, is presented in paragraph 14 of the Procedure for accounting for income and expenses for entrepreneurs. These include all proceeds from the sale of goods, performance of work and provision of services, as well as the value of property received by the entrepreneur free of charge. It should be taken into account that a number of incomes are not subject to personal income tax.

Situation: should an entrepreneur include in income from business activities subject to personal income tax income from the sale of property that was used both in business activities and for personal purposes

Yes, I should.

However, from later clarifications it follows that income from the sale of property used in business activities is included in income from business activities, regardless of whether the costs of its acquisition were taken into account earlier or not (letter of the Ministry of Finance of Russia dated March 23, 2012 No. 03 -04-05/8-365, dated September 7, 2011 No. 03-04-05/3-637). The validity of this approach is confirmed by arbitration practice (see, for example, Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 16, 2010 No. 14009/09, determination of the Supreme Arbitration Court of the Russian Federation dated October 27, 2008 No. 14235/08, resolutions of the FAS North-Western District dated July 4 2008 No. A42-6341/2007, dated October 2, 2008 No. A05-7915/2007).

What personal income tax deductions can an entrepreneur receive?

Property deduction

The right to receive property deductions upon the sale of property arises for an entrepreneur only in relation to income not related to his activities. That is, income from the sale of property that he did not actually (in reality) use in his business activities. This follows from the provisions of subparagraph 4 of paragraph 2 of Article 220 of the Tax Code of the Russian Federation and is confirmed by letters from the Ministry of Finance of Russia dated September 18, 2013 No. 03-04-05/38689, dated February 22, 2013 No. 03-04-05/3-122. For example, an entrepreneur can apply a deduction to income received from the sale of his own apartment.

It happens that a businessman, after his liquidation, sells vehicles or real estate that he once used in commercial activities. That is, at the time of sale the object was not used for business purposes. On the full amount of income from the sale of such property, you will have to pay personal income tax as a citizen, but without the right to property deduction. The taxation system that a person applied as an entrepreneur, as well as the period of ownership of the property, do not matter. Such clarifications are given in letters of the Ministry of Finance of Russia dated May 4, 2016 No. 03-04-05/25690 and dated November 18, 2014 No. 03-04-05/58221.

Valentina Akimova, State Counselor tax service RF rank III

How to get a tax deduction when selling property: apartment, house, cottage, car, etc.

Sales proceeds

For objects purchased earlier, the deduction will be provided according to the old rules (clause 3 of article 4 of the Law of November 29, 2014 No. 382-FZ, letters of the Ministry of Finance of Russia dated January 21, 2016 No. 03-04-05/2050 and dated 9 April 2015 No. 03-04-05/20185).

Personal income tax is imposed on income received from the sale of property:

resident (subparagraph 5, paragraph 1, subparagraph 5, paragraph 3, Article 208, Tax Code of the Russian Federation);
non-resident, if at the time of sale the property is located on the territory of Russia (subclause 5, clause 1, article 208, Tax Code of the Russian Federation).

In this case, the date of receipt of income is considered to be the day of payment of such income. This point is important, for example, in the case of a purchase and sale transaction that requires state registration of the transfer of ownership. So, if money for a sold property was paid (transferred) to a person in one year, and the transfer of ownership is registered in another, income is considered received in the year the money was paid (transferred).

A person (resident or non-resident), as a rule, must independently:

calculate and pay personal income tax;
submit a declaration in form 3-NDFL based on the results of the year in which he received income from the sale.

The exceptions are:

income from the sale of real estate (its shares) owned by a resident for a minimum period;
income from the sale of other property owned by a resident for three or more years;
proceeds from the sale of some shares in the authorized capital and some shares.

They are not subject to personal income tax. This procedure is established by subparagraph 2 of paragraph 1 of Article 228, paragraphs 17.1 and 17.2 of Article 217 of the Tax Code of the Russian Federation.

Such obligations are enshrined in paragraphs 1–3 of Article 228 and paragraphs of Article 224 of the Tax Code of the Russian Federation.

The amount on which you need to pay personal income tax is usually equal to the amount of income from the sale.

When you sell real estate , which has a cadastral value, please note the following. Whatever price you sell the property for, for personal income tax purposes the income from its sale will be considered no less than the cadastral value of the property multiplied by a factor of 0.7.

Take the cadastral value as of January 1 of the year in which the transfer of ownership was registered. Moreover, regions are given the right to reduce the coefficient of 0.7 down to zero (clause 6 of Article 217.1 of the Tax Code of the Russian Federation). For example, a person sold land for 500,000 rubles, while its cadastral value is 1,000,000 rubles. For personal income tax purposes, income from the sale of land will be equal to 700,000 rubles. (RUB 1,000,000 ? 0.7). Please note that this procedure applies to real estate for which the seller received title no earlier than January 1, 2016. Otherwise, determine income according to the old rules (clause 3 of article 4 of the Law of November 29, 2014 No. 382-FZ, letters of the Ministry of Finance of Russia of January 21, 2016 No. 03-04-05/2050 and of April 9, 2015 No. 03-04-05/20185).

Letter of the Ministry of Finance of Russia dated November 23, 2016 No. 03-11-11/69180

Question
An individual entrepreneur who is on a simplified taxation system sells in 2016 real estate purchased in 2016 at a contract price that corresponds to market price, but below the cadastral value. The individual entrepreneur pays from the income single tax with a simplified taxation system.
Please clarify whether it is correct that in this situation the procedure described in clause 5 of Article 217.1 of the Tax Code of the Russian Federation will not apply to an individual entrepreneur, according to which the taxpayer’s income from the sale of a real estate property is taken equal to the cadastral value of this property, multiplied by a reduction factor of 0, 7.

The Department of Tax and Customs Policy, having considered the appeal on the application of the legislation of the Russian Federation on taxes in relation to income received individual entrepreneur, applying a simplified taxation system from the sale of real estate, reports.
In accordance with paragraph 17.1 of Article 217 of the Tax Code of the Russian Federation (hereinafter referred to as the Code), income received by individuals who are tax residents of the Russian Federation for the corresponding tax period is not subject to personal income tax:
from the sale of real estate objects, as well as shares in the said property, taking into account the specifics established by Article 217.1 of the Code;
from the sale of other property that was owned by the taxpayer for three years or more.
Moreover, in accordance with paragraph four, the provisions of this paragraph do not apply to income received by individuals from the sale of valuable papers, as well as on income received by individuals from the sale of property directly used in business activities.
Thus, the provisions of paragraph 17.1 of Article 217 of the Code, as well as the provisions of Article 217.1 of the Code, which establishes the specifics of exemption from personal income tax on income from the sale of real estate, do not apply to income received from the sale of real estate in connection with the implementation of business activities. apply.

Answer approved by Sergey Granatkin,
leading expert

Article 217.1. Features of tax exemption for income from the sale of real estate

1. Exemption from taxation of income specified in paragraph two of clause 17.1 of Article 217 of this Code, received by individuals for the corresponding tax period, as well as determination of the tax base for the sale of real estate is carried out taking into account the specifics established by this article.

For the purposes of this paragraph and paragraph 3 of this article, in the event of the sale of residential premises or a share (shares) in it, provided for ownership in exchange for vacated residential premises or a share (shares) in it in connection with the implementation of a housing renovation program in the city of Moscow, when calculating the minimum maximum period of ownership of the sold residential premises or shares (shares) in it, the period of stay in the taxpayer's ownership of these residential premises or share (shares) in it includes the period of stay in the ownership of such a taxpayer of the exempted residential premises or share (shares) in it.

3. For the purposes of this article, the minimum maximum period of ownership of an immovable property is three years for real estate in which at least one of the following conditions is met:

1) the right of ownership to an object of real estate 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;

2) ownership of the real estate property was acquired by the taxpayer as a result of privatization;

3) the right of ownership to an object of real estate was received by the taxpayer - the rent payer as a result of the transfer of property under a lifelong maintenance agreement with dependents.

4. In cases not specified in paragraph 3 of this article, the minimum maximum period of ownership of an immovable property is five years.

5. If the taxpayer’s income from the sale of a real estate property is less than the cadastral value of this property as of January 1 of the year in which state registration of the transfer of ownership of the real estate property being sold was carried out, multiplied by a reduction factor of 0.7, in For tax purposes, the taxpayer's income from the sale of the specified object is taken equal to the cadastral value of this object as of January 1 of the year in which the state registration of the transfer of ownership of the corresponding real estate object was carried out, multiplied by a reduction factor of 0.7.

6. By law of a constituent entity of the Russian Federation, the following may be reduced down to zero for all or certain categories of taxpayers and (or) real estate objects:

1) the minimum maximum period of ownership of an immovable property specified in paragraph 4 of this article;

2) the size of the reduction factor specified in paragraph 5 of this article.

Article 217.1. Features of tax exemption for income from the sale of real estate

3. For the purposes of this article, the minimum maximum period of ownership of an immovable property is three years for real estate in which at least one of the following conditions is met:

2) ownership of the real estate property was acquired by the taxpayer as a result of privatization;

3) the right of ownership to an object of real estate was received by the taxpayer - the rent payer as a result of the transfer of property under a lifelong maintenance agreement with dependents;

4) owned by the taxpayer (including joint ownership spouses) as of date state registration transfer of ownership from the taxpayer to the buyer for a sold real estate object in the form of a room, apartment, residential building, part of an apartment, part of a residential building (hereinafter in this subclause - residential premises) or a share in the ownership of residential premises; there is no other residential premises ( shares in the ownership of residential premises).

At the same time, for the purposes of this subclause, residential premises (share in the ownership of residential premises) acquired (acquired) into the ownership of the taxpayer and (or) his spouse within 90 calendar days before the date of state registration of the transfer of ownership of the sold property are not taken into account residential premises (sold share in the ownership of residential premises) from the taxpayer to the buyer.

Subject to the conditions established by this subparagraph in relation to the residential premises (share in the ownership of the residential premises), the provisions of this paragraph apply to the land plot on which such residential premises are located (share in the ownership of the land plot associated with the share in the ownership of such residential premises), and located on the specified plot of land outbuildings and (or) structures.

3. For the purposes of this article, the minimum maximum period of ownership of an immovable property is three years for real estate in which at least one of the following conditions is met:

2) ownership of the real estate property was acquired by the taxpayer as a result of privatization;

3) the right of ownership to an object of real estate was received by the taxpayer - the rent payer as a result of the transfer of property under a lifelong maintenance agreement with dependents;

4) owned by the taxpayer (including joint property of spouses) on the date of state registration of the transfer of ownership from the taxpayer to the buyer for the sold real estate object in the form of a room, apartment, residential building, part of an apartment, part of a residential building (hereinafter in this subparagraph - residential premises ) or a share in the ownership of the residential premises is not located in another residential premises (shares in the ownership of the residential premises).

Subject to the conditions established by this subparagraph in relation to the residential premises (share in the ownership of the residential premises), the provisions of this paragraph apply to the land plot on which such residential premises are located (share in the ownership of the land plot associated with the share in the ownership of such residential premises), and economic buildings and (or) structures located on the specified land plot.

4. In cases not specified in paragraph 3 of this article, the minimum maximum period of ownership of an immovable property is five years.

6. By law of a constituent entity of the Russian Federation, the following may be reduced down to zero for all or certain categories of taxpayers and (or) real estate objects:

1) the minimum maximum period of ownership of an immovable property specified in paragraph 4 of this article;

2) the size of the reduction factor specified in Article 214.10 of this Code.