Purchasing a home while married
As a general rule, everything purchased during marriage is considered joint property of the spouses. There are two types of such property:
- joint,
- general share.
If a husband and wife bought an apartment as joint property, they jointly use and manage the property without allocating a share to each of them. Unless otherwise provided by law or contract, they are presumed to own equal shares.
The second regime assumes that the shares of the spouses are clearly defined. Moreover, they can be either the same or different.
Tax and section in general
What taxes in general relate to the division in one way or another? After all, there are several dozen of them in the Tax Code. Should spouses, in principle, pay any taxes in connection with the property they receive as a result of division of jointly acquired property?
INUSTA
The Russian Ministry of Finance believes that the personal income tax established by Chapter 23 of the Tax Code of the Russian Federation is relevant (letter dated March 15, 2021 N BS-4-11/4624). This opinion was expressed by the ministry in March 2021. Previously, the ministry had no opinion on the issue, and state authorities were not interested in the division of property in principle. Read about this in the article: For the division you need to pay a tax of 13%. Innovation of the Ministry of Finance of the Russian Federation on property agreements.
Briefly, the officials' statement boils down to the following. When the division of property - apartments and other real estate - is carried out by former spouses, that is, after a divorce, and this is done without court through the conclusion of an agreement on the division of property, then in some cases a tax base may arise. In particular, if the property is not divided equally. For example, if, by agreement, the marital apartment becomes the property of only the ex-wife, and the other does not receive anything, half of the cost of the apartment will be the tax base and the ex-wife must pay 13% of this amount, because this will be her income.
Thus, according to officials, personal income tax is imposed on that part of the property that, under an agreement on the division of property, is transferred to the former spouse and which exceeds half of what is being divided.
Another tax concerns the division of property of spouses, both before divorce and after dissolution of marriage - this is a state duty regulated by Chapter 25.3 of the Tax Code of the Russian Federation. True, it should also be called conditional, since it is paid in connection with filing a claim in court for the division of property or in connection with the registration actions of Rosreestr.
Thus, one way or another, the division of property of a husband and wife concerns only one tax - personal income tax.
Features of tax refund for housing purchased before 2014
As noted earlier, changes were made to tax legislation in 2014. If housing was purchased before January 1, 2014 in common shared ownership, the tax discount is distributed in accordance with the established shares.
Many people are interested in whether a husband can return apartment taxes for his wife. According to the law in force at that time, neither party can refuse its share or receive a deduction for another person. Everything is determined within the spouse's share.
If the property was acquired as a joint property, then, regardless of who incurred the expenses, the couple is considered to have participated in them jointly.
Therefore, answering the question of which spouse can receive a tax deduction, we can safely say - any of them. By default, it is distributed in equal shares, but the couple can, by agreement, distribute it in any proportion.
Grounds for receiving a deduction and its possible amount
The right to a discount arises depending on what funds were used to purchase the property: personal or credit. Based on this, the maximum amount allowed is determined:
- actual expenses incurred, but not more than 2 million rubles for each person;
- actual expenses incurred, but not more than 3 million rubles when repaying interest on the loan.
All expenses incurred for the apartment must be documented.
A personal income tax refund when spouses purchase an apartment in 2021 is possible if the following requirements are met:
- location of the purchased housing in Russia;
- lack of characteristics of a transaction in which the parties are interdependent persons;
- acquisition of property using own or borrowed funds;
- the person has a registered right of ownership or participation in shared construction;
- the person is an income tax payer.
Many are also interested in how spouses can get a double tax deduction for the purchase of an apartment. According to the law, the property deduction for the purchase of an apartment can only be used once. If the maximum amount is not exhausted, the remainder is used for other purposes.
Spouses have the right to apply for a double tax deduction, regardless of which of them is the owner of the purchase. The main condition is official employment, as well as the absence of a previously issued such right.
Sale of real estate shares
To sell a share in an apartment or private house that is in common ownership, the same legal provisions are observed as when selling part of any other common property. Buying 1/5 of an apartment means acquiring an equal share of the ownership of this home. This is not about buying a specific room with a designated living space, as in communal apartments or dormitories, where the rooms are individual objects separated from the general volume. A 1/5 share offered for purchase, for example, may be part of both a one-room and a three-room residential space, and the rights to use and dispose of it in this case will be the same for the five owners.
And the right to be the first to purchase a share from co-owners of common housing is also fully valid. A portion can be sold to unauthorized persons no earlier than a month after the shareholders have been notified in writing of the sale, and only after the co-owners refuse to purchase the alienated share.
The owners carry out the disposal and use of common property by consent and on an equal basis. Everyone owns their part and looks out for each other's interests. Possible income received from the operation of common property is distributed by the parties in proportion to their shares, as well as maintenance costs, unless other conditions have been agreed upon by the owners. Co-owners of common property have the right to donate, sell, rent, pledge or carry out other actions with the part belonging to them, observing the legislative provisions of the Russian Federation.
According to Art. 250 of the Civil Code of the Russian Federation, participants in common ownership have the right of first buyer when buying out the share of a co-owner at the same price and on the same conditions that were offered to third parties. The seller is obliged to notify the co-owners in writing about the sale of a share of the common property so that it can be purchased by other participants. After the date of receipt of the notice, deadlines are established if the share in real estate is 30 calendar days, other property is 10, after which the seller has the right to sell his share to third parties. If the right of the first buyer is violated, each participant in shared ownership may file a claim with the judicial authorities in order to declare the transaction invalid and return pre-emptive rights to purchase. The same conditions are observed by co-owners in relation to each other when alienating part of the common property under an exchange agreement. It is not permitted by law to assign the preemptive right of the buyer of a share in favor of unauthorized persons.
An exception is the sale of property shares at auction. In case of collection of a debt from a co-owner of common property, the creditor may file a petition with the judicial authorities for the in-kind allocation of the debtor's part. If other participants refuse to buy the share, the creditor has the right to demand the sale of the debtor's property at auction to pay off his debt.
Features of calculating tax deductions depending on property status
We have already figured out whether both spouses can receive a tax deduction when buying an apartment. It was also mentioned that it directly depends on the type of property in which the housing is located.
In most cases, the couple prefers to split the discount. To take advantage of the maximum possible limit (2 million each), you need to make a 50/50 split.
If a husband and wife decide that one of them will receive 100% and the other nothing, they will not be able to count on more than 2 million.
This point should be taken into account by those who are interested in whether it is possible to obtain a tax deduction when purchasing an apartment for both spouses.
Deduction for the purchase of housing in common joint ownership
Most often, spouses in our country own joint property, without allocating shares, since they do not think about dividing property before the dissolution of the marriage relationship.
All expenses are by default recognized as common, regardless of who actually incurred them. As a result, many are interested in how to get a deduction if the apartment is in common joint ownership.
It is important to correctly distribute the ratio according to which the spouses will receive a deduction, because after writing the application, the conditions cannot be changed.
It is more profitable to choose the 50/50 option, but after analyzing the situation, perhaps some will come to the conclusion that a different ratio will be more profitable for them.
To better understand the situation, let's look at an example. Tax deductions for the purchase of an apartment by spouses as joint property in 2021 will occur as follows.
The Ivanov family purchased an apartment worth 5 million rubles in 2021. The husband earned 3 million rubles this year, and his wife earned 2.5 million rubles. The couple decided to take a 50/50 deduction. Therefore, both will receive a deduction of 2 million rubles. × 13% = 260 thousand rubles.
Deduction when purchasing housing in common shared ownership
Many citizens also ask how to return a tax deduction for the purchase of an apartment in shared ownership, because common shared ownership is a common type of property ownership among married couples.
After January 1, 2014, significant changes occurred in the calculation of tax deductions for this category of cases.
If previously the size of the deduction directly depended on the share of each person, today the property tax deduction for common shared ownership is calculated based on the actual expenses incurred.
In this case, the couple can independently distribute expenses as they see fit. The main thing is that this is confirmed by payment documents.
If one of the couple does not work, it is worth documenting the expenses for the working spouse.
If the property is shared, let's look at how the tax is returned using an example. The Ivanovs purchased an apartment in shared ownership in 2021, each of them owns ½ part. During the current year, the husband earned 2.5 million rubles, and his wife did not work. In this case, the husband will be able to count on 2 million rubles. × 13% = 260 thousand rubles, and his wife will receive a tax deduction only when she gets a job.
In accordance with the law, it is also possible to return personal income tax on mortgage interest in shared ownership.
Deduction when purchasing a home in joint ownership with children
If the living space was purchased by both spouses and is registered as joint ownership together with a minor child/children, the parents or one of them can receive a tax deduction for the children’s shares.
In addition, one of the parents or both spouses has the right to increase the amount of their deduction at the expense of the minor’s share. The spouses themselves decide what to do in this case.
How do spouses distribute property tax deductions when purchasing a home?
All things acquired during marriage are considered common, unless otherwise specifically provided for in the marriage contract.
When a husband or wife purchases an apartment, it automatically becomes common and both spouses are entitled to benefits in relation to this object up to a limit of 2,000,000 rubles. Registration of an apartment for only one spouse and the contribution of funds by him alone does not matter, according to the letter of the Ministry of Finance of Russia dated September 3, 2019 No. 03-04-05/67630.
The spouses must distribute the provided property tax deduction according to the application; any ratio is allowed: 50/50 or 70/30, 100/0. In the latter case, disputes with the Federal Tax Service of the Russian Federation are possible upon subsequent presentation of the right to the benefit. From the letter of the Ministry of Finance of Russia dated March 3, 2010 No. 03-04-05/9-82, it follows that a citizen who has agreed to a share of 0% has the right to use it once.
An application is not required if the object cost more than 4,000,000 rubles, in which case both husband and wife have the right to claim a maximum amount of 2,000,000.
Spouses have two options for registering common property: in common ownership and in shared ownership. The 3-NDFL declaration for joint joint property of spouses or shared property is drawn up in the standard manner, with a joint application attached; since 2014, even when registered as a shared benefit, it can be distributed arbitrarily.
Tax deduction procedure
Let's figure out how to make a deduction for spouses for one apartment. It is worth noting that the entire accrued amount is not paid instantly at one time. How much was withheld from tax this year will be returned.
Where to go
All documents should be submitted to the district tax office at your place of residence. The address of the purchased property, as well as the actual place of residence, do not matter.
There are several ways to submit documents:
- bring it in person to the department;
- send by mail;
- submit online.
A tax deduction for property in your personal account is possible at.
Required documents
Along with the application for a deduction, the following package of documents must be submitted to the tax office:
- applicants' passports;
- certificate of registration of property rights or an extract from the Unified State Register of Real Estate;
- income certificate form 2 personal income tax;
- purchase and sale agreement or equity participation agreement;
- act of transfer of shared construction object;
- declaration 3-NDFL;
- documents confirming the fact of transfer of money.
The declaration of form 3-NDFL must be submitted in the original. In order to fill out the document correctly, you can seek help from the explanations. Section 7 of VAT on the sale of an apartment is described in detail here.
Deduction from an apartment purchased with a mortgage
The financial situation of many families does not allow them to immediately purchase housing with their own money. Therefore, for many, the solution is to buy an apartment on credit.
This procedure is very common, but many are interested in the question of whether it is possible to get a tax deduction when buying an apartment with a mortgage for two spouses.
When purchasing housing with a mortgage, you can register it as shared or common joint property of the spouses. When a couple buys a home on credit, one of them is in any case a borrower, and the second is a co-borrower.
Depending on who earns more, the main person under the mortgage agreement is selected.
According to the law, if the borrower is a husband, then the spouse can apply to grant him the right to a tax deduction.
In accordance with the changes that came into force in 2014, benefits are provided not in relation to the property, but in relation to its owner.
In this case, the deduction is first returned for the cost of real estate, and then for the cost of interest. A return of 13 percent from the purchase of an apartment on a mortgage by spouses is possible in both the first and second cases.
Documents for obtaining a mortgage deduction
In addition to the other documents discussed above, along with the application if you purchase an apartment with a mortgage, you must submit a mortgage agreement. It must be targeted at the purchase of housing.
It is impossible to obtain a tax deduction for interest on a mortgage with shared ownership under a non-target agreement.
Examples of calculating tax deductions for a mortgage
Let's look at how tax withholding is calculated when buying an apartment with a mortgage using an example.
Let’s assume that a person purchased housing worth 6,000,000 rubles, of which 2,500,000 was paid for through a loan issued for 15 years. The total amount of accrued interest on the loan is 1,250,000 rubles.
The applicant’s income for the current year is 800,000 rubles. The amount from which a tax deduction will be made: 2 million rubles + 1 million 250 thousand = 3 million 250 thousand rubles.
Thus, the total amount of tax withholding is 3 million 250 thousand × 13% = 422,500 rubles.
The amount of tax deduction for expenses for purchasing an apartment without accrued interest is 2 million rubles × 13% = 260 thousand rubles.
The amount of deduction from interest accrued on the loan is 1 million 250 thousand × 13% = 162,500 rubles.
Reasons for refusal to provide a property deduction
The right to receive a refund of taxes paid to the budget may be denied for several reasons. This may happen in the following cases:
- The right to deduction has been used previously.
- Purchasing residential premises using state social support programs without investing personal finances.
- Purchasing real estate with the inclusion of maternity capital.
- Payment for office housing by the employer.
- Purchasing an apartment from an interdependent person - spouse, mother, father, sister, brother, guardian and ward.
- The owner of the property is a non-resident of Russia.
- The house or apartments were not purchased in the Russian Federation.
- Purchasing a property that is not eligible for a tax deduction.
A tax deduction for joint property of spouses is an excellent way to return significant funds and improve the financial situation of the family. From all of the above, several general conclusions can be drawn:
- Both spouses can receive a tax refund when purchasing a home.
- Compensation for one person is 260 thousand rubles.
- One or both parents can receive payment for a child.
- The amount of compensation is limited to the amount of personal income tax paid for the relevant period.
- One of the spouses may refuse the deduction in favor of the other spouse.
- The refund is made in the form of a transfer to the account of the property owner or a reduction in the tax base by the employer.
It is important to remember that the registration procedure can take considerable time. Therefore, spouses must collect the necessary documentation in advance and decide on the distribution of tax deductions when purchasing a home.
conclusions
Many people are interested in whether the owner’s spouse can receive a tax deduction for an apartment. In connection with the adoption of new amendments to the Tax Code of the Russian Federation, it is now profitable for spouses to purchase housing in joint ownership.
If previously the tax deduction was tied to the property, now it depends solely on the owner. This makes it possible to receive the unused portion of the money in the future. However, only officially employed citizens have this right. Therefore, it will not be possible to obtain a tax deduction if the apartment is registered to a wife who does not work.
