The formation of entrepreneurial activity in the real estate sector dates back to the first half of the 90s, when the domestic real estate market began to form. The characteristic features of the development of the real estate market during this period are:
consumer motivations that form the demand in the real estate market, real estate is beginning to be considered by financial institutions as an investment object with the aim of making a profit only at the final stage;
the lack of regulation of rights to real estate and the weakness of the regulatory framework of the market, which made it possible to quickly increase the number of transactions at the beginning of the period and became a brake on the stage of its completion;
the predominance of redistributive tendencies between strata of the population with different income levels, between old and new capitals.
Naturally, under these conditions, the leading place in the market could not fail to be occupied by transactions with residential real estate, which dominate the real estate market in Russia. The main thing is that the concentration on the live real estate market in the conditions inherent in modern Russia has formed the appropriate structure of entrepreneurial activity in this area of the economy, had a decisive influence on the composition of clients, determined the appropriate forms of payment, methods of working in the market, etc.
With the development of the real estate market, a more detailed structure of entrepreneurial activity begins to form (Fig. 3.2). Although the bulk of firms operating in the real estate market are still diversified firms that simultaneously perform a number of functions, nevertheless the process
Rice. 3.2. The structure of entrepreneurial activity in the real estate market
specialization has already become an obvious fact. Many firms have allocated units in their structure to work with different types of real estate, to perform certain operations. The expansion of the range of real estate objects involved in the market turnover, the complication of the range of transactions carried out in the real estate market, the emergence of new types of entrepreneurial activity corresponding to these transactions - all this indicates that the real estate market is gradually entering a new level - the level of formation of a developed market characteristic of countries with established market economies.
In modern entrepreneurial firms, professional entrepreneurial groups are created, such as mortgage, title insurance companies, real estate consultants, etc. each of these groups performs its own functions, and within the framework of one firm there may be different areas of activity. For example, real estate development and real estate management often overlap, especially in the commercial real estate market.
But it is still too early to talk about the saturation of the market with professional participants. The distribution of firms across a large city is also uneven. It should be borne in mind that most firms operate in the city as a whole, and their location is determined by transport accessibility and population movement indicators. In most Western countries, firms engaged in the real estate market tend to localize their activities across the territory.
It is rather difficult to identify priorities in the areas of activity of firms. In countries with developed market economies on the real estate market, as a rule, there are large diversified firms working in the field of both development and consulting. The development of firms in Moscow, St. Petersburg and other large cities is proceeding in the same direction, although the contours of this development are still insufficient.
Realtors play a key role among professionals working in the real estate market. Real estate activity at the moment is a constantly developing sphere of services that are provided by real estate firms (i.e. legal entities of various forms of ownership), as well as by real estate agents who practice privately (individual entrepreneur). Real estate activity in modern conditions is a relatively new phenomenon, although it should be noted that professional intermediary activity is not a novelty for the Russian Federation, because agents and brokers in insurance, brokers in the securities market have already existed and have been successfully operating for several hundred years. Since in the early 90s. real estate objects were involved in the market turnover, then there was a need for professional knowledge and skills. Realtors are their carriers.
Real estate activity - activities carried out by legal entities and individual entrepreneurs on the basis of an agreement with an interested person (or by power of attorney) to perform on his behalf and at his expense or on his own behalf, but at the expense and in the interests of the interested person of civil transactions with real estate objects and rights to them.
Currently, the legal regulation of real estate activity is carried out by acts of the government of the Russian Federation, as well as by normative acts of the executive power of the constituent entities of the Russian Federation. Real estate activity is regulated by the following documents:
1. "Regulations on the licensing of real estate activities", Resolution of the Government of the Russian Federation of 23.11.1996, No. 1407. This document defines the essence and subjects of real estate activities, the licensing procedure, etc.
tion ", order of the State Committee of the Russian Federation for State Property Management dated 27.02.1997, No. 88-R.
3. "Federal Law on Licensing Certain Types of Activities" dated September 25, 1998, No. 158-FZ.
Along with state regulation of real estate activity, there is also social regulation. It arises in the event that representatives of a particular specialty create self-regulatory professional public associations (SPOO). It is this type of organization that has rather strict rights and obligations. Standards (rules) of professional activity, prepared and adopted in such an association, are mandatory for members of the SPOO. There are various associations of realtors - guilds, associations, unions, chambers.
Several professional unions of realtors operate in the real estate market in St. Petersburg: the Association of Real Estate Market Professionals (APRI), associations of real estate companies "Big Seven", "Top Ten", "City Corporation of Realtors" (GKR), Baltic Union of Realtors and Housebuilders of St. Petersburg. Associations of professionals in the real estate market of St. Petersburg are constantly changing. For example, APRN was established a year ago on the basis of the Association of Realtors of St. Petersburg, the Baltic Union of Realtors. The fact of this unification put an end to the confrontation in 1998 between two public organizations of realtors. It was assumed that the GKR would also join the single association, but its members at the last moment refused to join the new union, explaining this by the fear of dissolving among large companies and losing all the good that they had achieved during their work in the GKR. During the year of its work, APRN has lost about half of its members, but continues to work in a stable composition. Now there are about 40 companies in it.
The Association of Realtors of St. Petersburg works with government authorities (for example, it has agreed with the licensing chamber to create an attestation commission that will check the professional suitability of a real estate agency - it includes specialists from the APRN, the Notary Chamber and government agencies).
Licensing real estate activity is designed to solve two main tasks:
Ensuring a unified state policy in the implementation of licensing of real estate activities;
Establishment of the legal framework for a single real estate market in the Russian Federation.
It is legally determined which types of works and services related to real estate activities are subject to licensing.
For example, in Moscow they include:
Mediation in transactions of purchase and sale, exchange, lease of real estate;
Management of real estate objects under an agreement with the owner of these objects;
Conclusion of contracts of rent and lifelong maintenance with dependents, providing for the alienation of real estate objects. In other regions of Russia, for example, in St. Petersburg, Voronezh, Smolensk, Murmansk regions and in the Stavropol Territory, real estate activities are not divided into types.
The main licensing requirements for applicants for real estate activities are:
Information about the premises intended for the implementation of the licensed activity, and the rights to them;
Information characterizing the professional qualifications of the person who intends to carry out the licensed activity;
Information about the solvency (availability of sufficient financial resources) to compensate for possible losses caused through the fault of the licensee by the customer of his services.
The license is terminated in the following cases:
Upon the expiration of the period for which the license was issued, in the absence of an application for the extension of its validity period;
In the event of the liquidation of a legal entity or the termination of the certificate of state registration of an individual as an individual entrepreneur - the owner of the license;
In case of revocation of the license by the decision of the licensing authority.
Licensing real estate activity in St. Petersburg is carried out by a licensing body - the Licensing Chamber of St. Petersburg, which carries out 29 types of entrepreneurial activities. Realtors are engaged in the management of licensing of design and construction activities.
Standard procedure for obtaining a real estate license:
The firm submits a package of documents to the Licensing Chamber;
The employees of the chamber conduct an expert examination of the documentation and go to the place to find out whether the licensee can engage in this type of entrepreneurial activity;
The expert who carried out the inspection decides whether to issue a license or refuse.
Information on the availability of a license in a real estate company is issued upon request to any citizen within a month (service fee 3 minimum wages). More than 600 licensed real estate agencies are registered in St. Petersburg.
The right to make decisions on the suspension of the license or its cancellation is given to the Expert Council for the licensing of real estate activities. This is, in a way, an arbiter in a dispute between a customer and a real estate company.
The reason for inspecting a real estate company is, as a rule, the customer's complaint about the company's illegal actions. The Licensing Chamber also practices planned raids. Seven real estate agencies have their licenses suspended for various violations.
According to the law, the company is given six months "to eliminate the identified deficiencies. In case of failure, the license should be canceled through the courts.
Both a legal entity and an individual can carry the status of a realtor, only having a license to carry out real estate activities. In addition, an individual (both an individual entrepreneur and a realtor within a legal entity) must undergo certification to carry out real estate activities. Persons who have undergone training according to the approved training program for specialists in real estate activities in the amount of at least 90 hours are admitted to certification.
There are techniques and methods for carrying out business activities for the provision of real estate services. The technology for the provision of real estate services can be reduced to the following main stages:
1. Receiving a request for a service:
a) study of the nature and volume of the upcoming work based on the analysis of the details of the real estate object declared by the customer;
b) formulation of restrictive conditions.
2.Preliminary inspection of the facility and conclusion of a service agreement:
a) concretization of the subject of the contract and preparation for its signing;
b) drawing up a plan for the performance of work under the contract
3.Collection and analysis of object data:
a) collection of documents on the real estate object and confirmation of the reliability, relevance and usefulness of the collected information necessary for a specific real estate transaction;
b) providing a report to the customer on the work done and informing about the degree of readiness of all entities to complete the transaction.
4. Legal support of the transaction:
a) formation of a set of documents and their study, confirmation by a lawyer of the legality of the transaction;
b) determination of the risks associated with the transaction;
c) familiarization of the customer with the documents and materials provided for the execution of the transaction and agreeing on the conditions and techniques for its implementation.
5. Conducting a real estate transaction and paying for services to a realtor:
a) conducting a real estate transaction and documenting its results;
b) execution of the acceptance certificate for the work performed under the contract for the indication of the service;
c) payment for the services of a realtor for the work performed. These stages show a typical relationship between a real estate company and a customer. It looks as follows: the offer by the firm of a set of services - the choice of the service by the customer - the conclusion of the contract - the provision of the service - the conclusion of a real estate transaction - payment for the services of a realtor for the work performed.
With these relationships, the content of each service is rather rigidly formalized and limited by the scope of the services provided by the firm, and the specialists of each structural unit of the real estate firm work according to the internal rules for providing the appropriate profile of services. The customer, in turn, must define the content and result of the provided service quite clearly. And underestimation of the peculiarities of the customer's perception of the content of the real estate service causes the risk of losing the customer.
The main activities of realtors.
1. The realtor acts as an agent. The realtor realizes this status on the basis of an agency agreement, which he concludes with the consumer of services. This agreement defines the obligations of the realtor-agent to carry out certain legal actions with respect to the real estate object specified in the agreement (for example, to conclude one or several transactions with it) on his own behalf and at the expense of the consumer or on behalf and at the expense of the consumer. Also, the agency agreement may provide for the imposition on the realtor-agent of the obligation to carry out legal actions in relation to the consumer of services personally (purchase or alienation, acceptance or transfer for temporary use of a real estate object). All employees of the legal entity who directly work with customers and participate in the preparation for the conclusion of contracts for the implementation of civil transactions with real estate objects must have a personal license card-agent.
2. The realtor acts as an attorney. In this case, a contract of agency is concluded, which imposes on the realtor the obligation to carry out, on behalf and at the expense of the principal, certain legal actions in relation to the property belonging to him or used by him.
3. The realtor acts as a broker. A commission agreement is concluded between the consumer of services and the realtor. In accordance with it, the realtor assumes obligations on his own behalf and at the expense of the principal to complete one or more transactions with the property. The broker performs the following functions:
Acting as a confidant of one or both parties in a transaction with a real estate object;
Analysis of negative and positive factors accompanying the transaction;
Development of an optimal program for carrying out an appropriate transaction with a real estate object with the lowest costs and risk.
A broker's license card is issued only to specialists or individual entrepreneurs who have worked as an agent or have been carrying out brokerage activities for at least two years.
4. The real estate firm acts as a dealer. Dealer activity is carried out in the case when the property is owned by the realtor himself (it was acquired earlier for the purpose of subsequent sale).
5. Intermediary activities of a realtor. Activities for the provision of services for the search for counterparties for persons who have expressed a desire to purchase or sell any real estate object for the subsequent conclusion of relevant transactions. In this case, the realtor is not a direct party.
6. Realtor's trading activities. With this status, the realtor performs the following functions:
- provides information support services for the participants in the transaction;
Provides consulting and paperwork services;
Provides services for the proper and safe settlement of transactions.
7. The activity of a real estate company for the creation of new real estate objects with the aim of their subsequent sale. This activity is carried out on the basis of partnerships with investment and construction companies. As a rule, a real estate company operates in the secondary real estate market, but in St. Petersburg there are several real estate companies that sell housing on the primary market.
8. The activity of a real estate company for the creation for the subsequent sale of a separate real estate object by changing the legal regime of a previously existing object (property complex). Privatized enterprises often do not have title documents for real estate objects obtained in the process of corporatization of enterprises. In this case, the agency's specialists carry out a full range of works from consulting to registration of land ownership rights.
9. The work of a real estate company with industrial real estate. This activity of a realtor is aimed, as a rule, at the lease and sale of office, retail and warehouse space.
10. The work of a real estate company with industrial real estate under the production restructuring program. This activity is carried out on the basis of the accreditation of the Committee for Economic Policy.
11. Activities of a real estate company for real estate management can be carried out on the basis of:
a) agency agreements and work contracts;
b) lease agreements with the right to sublease for clients;
c) trust management of real estate objects.
On May 4, 1998, the State Duma adopted the draft federal law "On real estate activities in the Russian Federation" in the first reading.
Until mid-1999, the KUGI was engaged in licensing real estate activities on the basis of the order "On the procedure for licensing real estate activities" dated May 14, 1997 No. 436-r.
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Nikolay bought non-residential premises on the first floor of the house in 1997. After 12 years, he decided to rent it out as a store. Issued an individual entrepreneur on a simplified tax system in order to honestly pay taxes on income. In the documents, he wrote that he would rent out his own real estate. As an entrepreneur, he planned to receive income only from rent.
Since 2009, Nikolai received money from tenants and paid the prescribed 6% to the budget. So he worked for five years, and then decided to sell the premises for 10.5 million rubles.
Since he bought it as an ordinary individual long before the IP registration, he sold it as an individual. Nikolai did not pay any taxes from the sale, because he owned the property for many years.
The tax office did not agree with him and added 630 thousand rubles in tax plus interest and fines. Only 720 thousand. Nikolai went to the courts.
Why did the tax authorities charge hundreds of thousands of rubles?
Nikolay is an entrepreneur and worked for the STS. He received rental income. And if he received rental income, then he used his property for business.
When he sold his personal premises, it was as if he received income not as an ordinary owner, but as an entrepreneur. This means that the income from the sale of this property can be considered the income of the individual entrepreneur - all 10.5 million rubles.
There are no deductions for the sale of real estate on a simplified tax system with a rate of 6%. And you will not be able to exempt the object from tax, taking into account the period of ownership. The entire amount from the sale of premises is the income from which the budget is supposed to pay tax. Plus a 10% penalty and interest. And so 720 thousand rubles came over.
What did the entrepreneur objected to this?
The man made the following arguments:
- He bought the premises as an individual, long before the registration of an individual entrepreneur.
- I also sold real estate as an individual. The contract did not contain references to his status as an individual entrepreneur. He received the money from the sale to his personal account.
- As an entrepreneur, he was not involved in the sale of real estate: there is no such type of activity in the registration documents.
- In similar situations, the Ministry of Finance used to divide income by type and tax. There were official letters on this matter.
What did the courts say?
👎 Arbitration court
The tax office did everything right. The man has to pay
For taxes, the purpose of the property is important, and not how it is formalized according to the documents. Although the man sold the property as personal property, he used it for business.
The explanations of the Ministry of Finance are not a normative document. They were not given to this entrepreneur and cannot be referred to.
👎 Appeal
Tax law
It's like that. Let him pay extra tax, fines and penalties. But since he acted in good faith, we will reduce his fine by half.
The entrepreneur, although he acted in good faith, was mistaken. If you use personal property in business, pay tax on its sale as an individual entrepreneur.
The courts were not wrong. According to its characteristics, the premises are not intended for personal use. This means that the income from its sale is the income of the individual entrepreneur with all that it implies.
Bottom line. The man went to the courts for more than a year, but could not challenge the charges. The income from the sale of personal real estate was recognized as entrepreneurial. We'll have to pay 720 thousand rubles to the budget.
Can't you complain to the Constitutional Court?
This is unlikely to help. The Constitutional Court explained that entrepreneurs can use their property both for personal purposes and for business. It is difficult to distinguish legally, so you need to figure it out.
If I am an individual entrepreneur and sell a car or a computer, can they also charge me something?
They can. If it turns out that you used this property for entrepreneurial activity, then the income from its sale is recognized as revenue. With a car, this can happen easily: the tax office receives data from the traffic police.
Some individual entrepreneurs have already been charged tax on the sale of personal cars. They failed to appeal. This is not the first time with real estate either.
It is more difficult with a computer, because data on such transactions between individuals are not automatically sent to the tax office. But there are always nuances and no one will give a guarantee that when you sell a laptop, furniture or a garage, you will not be taxed as an individual entrepreneur.
I will sell the property and claim a deduction. For example, purchase costs. So it is possible?
You can not do it this way. The deduction can be used only if the income is subject to personal income tax at a rate of 13%. If this is the income of an individual entrepreneur on the simplified tax system with 6%, there is no personal income tax and the rate is different.
There is no deduction either: it is not allowed by law. The fixed deduction of 1 million rubles for real estate and 250 thousand for other property cannot be used. Purchase costs and long tenure won't help either. Tax will be charged on the entire amount of the sale.
If I have a simplified tax system “income minus expenses”, how will the tax be calculated?
Then the expenses for the acquisition of the property will be deducted from the proceeds. But with the difference, you still have to pay tax. And it could be hundreds of thousands.
So it was in the history of another entrepreneur who bought several apartments as an individual long before registration, transferred them to non-residential premises and rented them out. Then he stopped doing this business and sold everything as an individual too. The tax authorities added 620 thousand to him from the difference, and the courts supported him.
Are these entrepreneurs acting at random and are they themselves to blame? Could they have foreseen such consequences?
These entrepreneurs did not act at random, but did not fully understand the situation. They took as a basis the letters of the Ministry of Finance and the positions of the courts. They thought that they were doing everything right, and even insured themselves. They also paid all taxes and did not hide transactions from the sale of their property, did not withdraw assets and did not lower prices.
For example, one individual entrepreneur did not take into account the utility costs in the declaration and sold the premises after he closed the business. The Ministry of Finance said that in such cases it is possible to pay personal income tax (letter 03-11-11 / 25 of 20.08.2012).
What to do in order not to get taxed when selling property?
If you use this property in order to receive income as an individual entrepreneur, it is unlikely that you will be able to avoid paying tax. The tax authorities and the courts have an unambiguous position.
But even this can be beneficial. You just need to be prepared for the fact that you have to pay tax. For example, when selling, include it in the price, then transfer it to the budget and sleep peacefully. Or not to sell if it is not profitable.
If you are selling property that the tax authorities do not know about and do not want to pay tax as an individual entrepreneur, assess the risks. If this is a computer for 50 thousand rubles and the buyer is an individual, you are unlikely to face anything. But if it's a million dollar car, and you are engaged in transportation, you can get into trouble.
Be careful if the property situation is ambiguous. For example, you have a car service in your own garage, but your car is also parked there. Or you have an apartment on the ground floor and you accept clients like a lawyer. No one can guarantee that when you sell this property, you will not be suddenly charged additional taxes.
There can be nuances in every story. The tax office will not make a claim without any reason at all. Inspectors will collect evidence, examine documents, and interview witnesses. In this story, for example, it was so. Do not neglect documents, consult with lawyers, look for a competent accountant.
Do not refer to the letters of the Ministry of Finance if they describe a situation that is even slightly different from yours. If in doubt
The inspectorate brought the entrepreneur to justice for tax evasion. During the audit, it was found that the payer did not reflect income from the sale of vehicles in the declaration. The controversial cars were used in business. This resulted in non-payment of tax to the budget. As a result, the individual entrepreneur was charged a tax paid in connection with the use of the simplified tax system, and a fine for a tax violation. The entrepreneur challenged the inspectorate's decision in court. The cassation office refused to satisfy the SP's requirements.
The court indicated that the object of taxation under the simplified taxation system is income or income reduced by the amount of expenses (clause 1 of article 346.14 of the Tax Code of the Russian Federation). Revenue from sales is recognized as revenue from the sale of goods (work, services), both of its own production, and previously acquired (clause 1 of article 249 of the Tax Code of the Russian Federation).
At the same time, when selling houses, apartments, plots and other property that has been owned for more than 3 years, a citizen has the right to receive a property tax deduction. Personal income tax deduction is provided in the amount received upon the sale of this property ( sub. 1 p. 1 of Art. 220 Tax Code). This benefit does not apply to the income of individual entrepreneurs from the sale of property in connection with their entrepreneurial activities.
From the materials of the case, it followed that the individual entrepreneur took into account the income from the main activity under the simplified taxation system and from the sale of eight cars. A personal income tax return was submitted to the inspectorate. It reflected income from the sale of motor vehicles. At the same time, the entrepreneur took advantage of the property deduction for personal income tax. The amount of taxable income in the amount of 2.4 million rubles. was reduced by the amount of expenses in the amount of RUB 2.8 million related to the purchase of cars. As a result, the amount of tax payable to the budget amounted to 0 rubles.
Justifying his innocence, the individual entrepreneur indicated that taxation under the simplified tax system is carried out only in relation to entrepreneurial activity declared during registration. In addition, the individual entrepreneur explained that the transaction for the sale of cars was of a one-time nature and was not aimed at making a profit. In fact, she brought a loss. The court found these arguments untenable.
The judges explained that the acquisition of property for the purpose of making a profit from its use or sale indicates the presence of entrepreneurial activity. An entrepreneur is not prohibited by law from selling motor vehicles. The lack of information in the unified state register about this type of activity does not mean that citizens cannot be engaged in the sale of cars.
The SP status is confirmed by the relevant certificate. Moreover, it is not associated with the activities listed in the certificate. Consequently, the absence in the certificate of a specific type of activity does not mean that the person in relation to him has not acquired the status of an entrepreneur.
The controversial cars were purchased by individual entrepreneurs for entrepreneurial activities. They were used in its implementation and were sold to another entrepreneur. Based on this, the court concluded that income from the sale of these cars, as well as the costs of purchasing them, should not have been taken into account when calculating personal income tax. Consequently, the cassation concluded that the additional assessment of the single tax under the simplified taxation system was legitimate.
The entrepreneur tried to save on taxes on the transaction due to his dual status. He is both a simplified entrepreneur and an individual at the same time. For a transaction that does not bring profit, it is more profitable to pay taxes as an individual.
The main factor influencing the outcome of such disputes in court is the purpose of acquiring the property. In the situation discussed above, the individual entrepreneur sold 8 cars. It is unrealistic to use such a number of vehicles for personal purposes. In the same cases when, for example, an individual entrepreneur sells the only housing, the right to property deduction should be realized in full.
The Presidium of the Supreme Arbitration Court of the Russian Federation also stated that the use of property deductions in the sale of commercial property was unreasonable. IN Resolution dated 16.03.10 No. 14009/09 it is noted that an individual entrepreneur is in any case obliged to pay tax on the sale of property used for commercial purposes. At the same time, neither the moment of acquisition of this property, nor the fact of accounting for the costs of its acquisition, plays a role.
On the other hand, there are abuses on the part of the tax authorities. For example, when absolutely any income from the sale of any property, including personal property, is taken into account. There are cases when additional tax is charged upon the sale of property after the termination of the IP.
An individual entrepreneur applying the simplified tax system with the taxable object "income" carries out entrepreneurial activities in the lease of his own property - non-residential premises. The individual entrepreneur plans to sell this non-residential premises. The premise has been in his ownership for more than 3 years. Under what taxation system (simplified tax system or personal income tax) this transaction will be taxed if the individual entrepreneur stops using the premises in entrepreneurial activity, terminates all lease agreements and then sells the premises, retaining or not maintaining the individual entrepreneur status? Is there a limitation period in this situation (for example, a year after the termination of the use of the premises in entrepreneurial activity, it is considered the property of an individual and is taxed not by the STS, but by personal income tax)?
Having considered the issue, we came to the following conclusion:
If at the time of the transaction the individual entrepreneur has not lost the status of an entrepreneur and applies the simplified tax system, then when selling non-residential real estate that was used in entrepreneurial activity, the income is taxed under the simplified tax system. At the same time, it does not matter whether the object is used at the time of sale in entrepreneurial activity or not and how much time has passed since the moment this property was used in entrepreneurial activity.
If the individual entrepreneur status is lost, then the proceeds from the sale are subject to inclusion in the personal income tax base and are taxed at a tax rate of 13% also regardless of whether the property is used at the time of sale to generate income or not.
At the same time, the "statute of limitations" for the use of property to generate income is not provided for by the Tax Code of the Russian Federation and the explanations of the Ministry of Finance of Russia.
Rationale for the conclusion:
Sale of real estate by individual entrepreneurs during the period of application of the simplified tax system
When determining the object of taxation for taxpayers applying the simplified taxation system, income from sales determined in accordance with the Tax Code of the Russian Federation, as well as non-operating income determined in accordance with the Tax Code of the Russian Federation (Tax Code of the Russian Federation) are taken into account.
In this case, any property sold or intended for sale (Tax Code of the Russian Federation) is recognized as a commodity for tax purposes.
That is, transactions for the sale of real estate should be qualified for tax purposes as transactions for the sale of goods.
At the same time, it should be noted that the property of an individual entrepreneur and an individual is not legally differentiated. Therefore, for a long time, the question of within the framework of which activities to take into account the transactions for the sale of real estate by individual entrepreneurs in taxation remained a reason for discussions among specialists and litigation.
Until recently, the opinion of the official bodies was that if the property was used by an individual entrepreneur for entrepreneurial activity, then its sale can also be attributed to the sale of property in the framework of entrepreneurial activity (Ministry of Finance of Russia dated 21.02.2012 N 03-04-05 / 3 -198, Federal Tax Service of Russia in Moscow dated 16.02.2009 N).
In this case, income received by an individual entrepreneur from the sale of immovable property used by him for carrying out entrepreneurial activities, the taxation of which is applied by the simplified tax system, are not subject to personal income tax under the Tax Code of the Russian Federation (Ministry of Finance of Russia dated 05/10/2012 N 03-11-11 / 151, dated 03/15/2012 N, 09/08/2011 N, 12/05/2011 N, 04/14/2011 N).
At the same time, according to experts of the financial department, in order to account for income from the sale of a real estate object as part of the tax base for the tax paid in connection with the use of the simplified tax system (hereinafter referred to as the Tax), 2 conditions must be met:
When registering an individual entrepreneur in the Unified State Register of Individual Entrepreneurs, the types of economic activities are indicated, in particular, such as "Preparation for the sale of own real estate", "Purchase and sale of own real estate" or "Construction of buildings and structures" (respectively, codes 70.11, 70.12 and 45.2 of the All-Russian classifier of types of economic activity (OKVED), approved by the State Standard of Russia dated 06.11.2001 N 454-st);
Real estate was used in the entrepreneurial activity of an individual entrepreneur.
The question remained open whether these conditions should be fulfilled simultaneously.
In turn, judges, when considering cases on this issue, in most cases indicate that if the property was used in entrepreneurial activity, then the income from its sale is taxed within the framework of the simplified tax system, even if the corresponding OKVED codes were not declared during the registration of the individual entrepreneur and later (FAS Moskovsky from 10/28/2011 N F05-11288 / 11 in case N А41-40926 / 2010, FAS of the North-Western District from 04/19/2011 N in case N А05-7156 / 2010).
This position was also agreed by the Presidium of the Supreme Arbitration Court of the Russian Federation in No. 14009/09 dated March 16, 2010 (see also the Supreme Arbitration Court of the Russian Federation No. VAC-12756/11 dated October 11, 2011).
Apparently, taking into account the position of the supreme arbitrators, in the latest clarifications, the finance department somewhat changed its mind.
The Ministry of Finance of Russia explained its position in more detail in a letter dated 23.04.2013 N 03-04-05 / 14057. According to the specialists of the department, if the real estate was used in entrepreneurial activity or if the individual entrepreneur declared such activities as the sale of real estate during registration, then the income from such a sale is taken into account as income when determining the tax base for the Tax. Accordingly, as already mentioned, if an individual entrepreneur applies the simplified tax system with an object of taxation in the form of income, then a tax rate of 6% is applied to the income received.
At the same time, income received from the sale of real estate that was not used by the individual entrepreneur for the purpose of carrying out entrepreneurial activities, including if the individual entrepreneur did not indicate the types of activities associated with the sale of his own real estate during registration, are subject to personal income tax in the manner established by the Tax Code of the Russian Federation.
Sale of real estate by an individual after the loss of the status of an individual entrepreneur
By acquiring and losing the status of an individual entrepreneur, a citizen becomes a subject of certain tax legal relations, respectively, upon terminating his activities, the individual entrepreneur ceases to be a special subject of tax legal relations upon cancellation of state registration (Second Arbitration Court of Appeal dated 12.03.2012 N 02AP-8013/11).
At the same time, as the Ministry of Finance of Russia explains (dated 20.08.2012 N 03-11-11 / 25), according to the Tax Code of the Russian Federation, the tax period for the tax paid in connection with the use of the simplified tax system is a calendar year, and the reporting periods are I quarter, half a year and nine months of a calendar year. The tax period for the tax paid in connection with the use of the simplified tax system for a taxpayer who has ceased activities as an individual entrepreneur is the period from the beginning of the calendar year to the date of termination of activities carried out within the framework of the simplified tax system.
That is, for example, if from 01.07.2014 a citizen loses the status of an individual entrepreneur, his rights and obligations associated with the use of the simplified tax system will cease from that date. From this moment on, the taxation of his income will be carried out in accordance with the Tax Code of the Russian Federation "Tax on personal income".
When answering such questions, the Ministry of Finance of Russia adheres to the following opinion.
Considering that this point of view does not coincide with the position of the financial department, it is highly likely that it will be necessary to defend the right to exemption from taxation of the transactions in question and the income received in court.
We do not currently have any examples of arbitration practice on this issue.
Prepared answer:
Expert of the Legal Consulting Service GARANT
professional accountant Molchanov Valery
Answer passed quality control
The material was prepared on the basis of an individual written consultation provided as part of the Legal Consulting service.
