Moscow authorities will attract informants to identify tax evaders on rental income
The Moscow government recently announced a real crusade against Muscovites, who secretly rent out apartments from the authorities and do not pay taxes. Methods for identifying such unscrupulous landlords will be used almost spyware
The chairmen of the capital's HOAs have already received "letters of happiness" from the mayor's office, in which they are naturally asked to become informants in the case of catching malicious tax evaders. The wording, however, is the most benevolent: "The request to carry out work to identify citizens living in residential premises without a lease agreement, and also to inform the owners that the renting of housing is taxed."
“We are invited to report on people who rent out an apartment with an agreement, without an agreement, and about people who simply live without any rights,” Valentin Grigoriev, chairman of the Moscow Union of Housing and Communal Services and HOA, shared with Izvestia.
In turn, the head of the department economic policy and development of Moscow Maxim Reshetnikov said that by the end of the year metropolitan authorities intend to "debug the mechanisms", and already from 2013 all taxes due to the city will be collected from the landlords. Moreover, if it turns out that the apartment has been rented out for several years (and this will become clear in every first case), you will have to pay a fine for each year.
“For the second half of the year, we will collect all the information - where and who is renting an apartment. We expect that citizens will understand that all information about them is in the tax office and will want to pay taxes, and not communicate with the tax authorities, "Reshetnikov said.
However, relying only on homeowners' associations, which usually do not care about tenants, would receive money regularly, the authorities do not intend to. As the watchful eyes and sensitive ears of the Moscow administration, district militiamen and, of course, housemates will also act, who know exactly who is renting out an apartment to whom. At the same time, Reshetnikov immediately made a reservation that no one would pay the informants. This means that citizens will have to "knock" on their neighbors, as the Owl used to say from the cartoon about "Winnie the Pooh", free of charge.
Maxim Reshetnikov also said that the authorities hope for the conscientiousness of the "gray" landlords who rent out apartments in 2012. True, they are not provided with any benefit from coming out of the shadows. No amnesty, no reward for honesty - sheer losses. And if it turns out that the apartment was rented out in 2011, then write was gone.
“If the facts of renting out apartments in 2011 are confirmed, citizens will have to communicate with tax inspectors... If they have not filed a declaration for 2011, then they will have to explain why. For non-payment of taxes, sanctions are envisaged, "- Reshetnikov frightened the malicious defaulters.
Whether "letters of happiness" and free informants will help is not yet clear. According to Valentin Grigoriev, the request to identify landlords is not only
difficult to implement, but also contrary to the laws.
“I have no right to disclose the personal data of citizens and disclose them without the permission of the person who rents the apartment. There is a tax secret. 102nd article Tax Code states that it is impossible to disclose information about the activities of organizations and individuals, ”he said.
Professional lawyers are of the same opinion. For example, Roman Sorokin, a lawyer for the Moscow Bar Association Alexander Ekim and Partners, told Izvestia that he did not see a legal mechanism for checking private housing.
“The apartment is private property, it is inviolable, like privacy. You can't come and say: show who lives here with you, ”he said.
This is probably why the authorities intend to involve district commissioners in such inspections, who, due to their duty, have the right to visit the homes of citizens.
What awaits the "gray" landlords caught by the hand? According to the Tax Code of the Russian Federation, a penalty for non-payment of taxes on income from renting an apartment in previous years is levied for a maximum of three years. If the homeowner "forgot" to apply for tax office declaration of income, he will have to pay a fine in the amount of 5 thousand rubles.
If the fact is revealed that the owner had to pay rental tax in 2010-2011, but decided not to do this, he will be fined for every day of delay. But for non-payment of taxes, you can get a real time. True, only if the amount of debt exceeds 100 thousand rubles in one calendar year.
However, according to Roman Sorokin, these sanctions have never been widely applied before. Natalya Sivko, Managing Director of Miel-Arenda, also could not remember the precedents when landlords would be fined for tax evasion for the delivery of real estate.
Apparently, the authorities are determined to seriously put pressure on the hard-core tax evaders who profit from renting out housing. However, previous initiatives in this field were not crowned with success. Even when the FMS submitted to the tax authorities the addresses at which rented apartments illegal migrants lived, no sanctions were imposed on the homeowners.
See how it ends this time.
Lawyer Stanislav Ryzhenkov
Some features of leasing non-residential premises in an apartment building by the Homeowners' Association
Housing legislation allows homeowners' associations to engage in economic activities, including renting out, transferring for use, renting part of the common property in an apartment building (clause 2, article 152 of the RF LC).
In accordance with Part 2 of Art. 137 ZhK RF "In cases where this does not violate the rights and legitimate interests of the owners of premises in an apartment building, the homeowners' association has the right to provide for use or limited use of a part of the common property in an apartment building."
It should be noted that in order to lease (use) common property, a decision must be made by the general meeting of owners of premises in an apartment building (clause 3, part 2, article 44 of the RF LC). Such a decision is made by two-thirds of votes of the total number of votes of owners of premises in an apartment building.
Thus, an association of homeowners has the right to act as a lessor of non-residential premises in relations with organizations (individual entrepreneurs) - tenants.
The advantage of this option is that the rent goes into the ownership of the HOA, and not the owners of the premises in the apartment building, so there is no personal income tax. Consequently, the tenant organizations have no obligation to act as tax agents on personal income tax (oh yes, there is no obligation to calculate tax, withhold it from the income of a taxpayer - an individual and transfer the withheld tax amount to the budget).
In accordance with paragraphs. 7 p. 2 of Art. 145 ZhK RF to competence general meeting members of the HOA includes the determination of the areas of use of income from economic activity Partnerships. According to paragraph 3 of Art. 151 ZhK RF: " On the basis of the decision of the general meeting of members of the homeowners' partnership, special funds may be formed in the partnership to be spent on the purposes provided for by the charter. The procedure for the formation of special funds is determined by the general meeting of the members of the partnership.».
From the above norms of the RF Housing Code, it follows that homeowners' associations have the right to make decisions on the procedure for using income from the partnership's economic activities not only by planning direct cost items, but also by creating special funds, the number and types of which are not limited by the Housing Code. The basis for the creation of the Fund is the decision to create the Fund, adopted by the general meeting of HOA members.
HOA funds represent cash Homeowners' associations that can be spent on the goals and objectives of the partnership, for example, for the restoration and repair of common property in an apartment building, providing emergency restoration work, covering unforeseen expenses, construction or reconstruction of common property objects of owners of premises in an apartment building, etc. The main purpose of creating funds is the accumulation of funds to pay for certain types of HOA expenses.
The procedure for the formation and use of funds of HOA funds should be determined by special provisions on HOA funds, approved by the general meeting of its members.
Thus, income from the lease of non-residential premises can be sent to a special HOA Fund (for example, the Fund for work on overhaul common property in an apartment building), the funds of which will be used to pay for the corresponding work performed by contracting (managing) organizations under an agreement with the HOA.
Department of work with taxpayers and the media
Office of the Federal Tax Service of Russia for the Tambov Region
V recent times the question of choosing a form of government apartment building and, in particular, homeowners' associations (HOA), its creation and taxation is especially relevant.
Homeowners association is a fairly new organizational and legal form of non-profit organizations for Russia, which has become widespread in last years in connection with the implementation of housing reform and transformations in the field of housing and communal services.
According to the Housing Code of the Russian Federation (Housing Code of the Russian Federation), a homeowners' partnership is recognized as an association of owners of premises in an apartment building for joint management of the complex real estate, the organization of its maintenance, possession, use, operation and established by law the limits of the disposal of this property (clause 1 of article 135 of the LC RF). Note that HOA activities are regulated by the Housing Code.
Let us remind you that according to Art. 161 Housing Code RF homeowners are obliged to choose a method of managing an apartment building. There are three such methods in total:
1) direct control. Each owner concludes a separate contract for utilities and housing services and pays for them himself;
2) self-government. A homeowners' association (for example, HOA) is created, acting on behalf of all owners through an elected board. Relations with suppliers of utilities and housing services are built under contracts between legal entities. The HOA is responsible for calculating payments, collecting money and making settlements with specialized organizations;
3) hiring private company or a municipal service and empowering it on the basis of an agreement with the apartment owners.
The creation of an HOA has a number of advantages. Firstly, self-government contributes to better efficiency, since each member of the partnership is interested in the quick resolution of emerging problems. Secondly, there are jobs for residents. Thirdly, a small but stable business can be formed within the HOA, for example, to provide various kinds of services in their area (within the framework of the charter). Fourth, the HOA owns residential building completely - from the foundation to the roof, and under some conditions, the surrounding areas (the so-called condominium). By joint efforts, it will be possible to improve the improvement of their home and yard. And fifthly, if the HOA is not ready to work independently, you can find management company that it would trust. It is much easier for a consolidated customer, which is an HOA, than for each apartment owner.
Please note: when creation of homeowners' association tenants' utility bills will not rise. The fact is that utility tariffs are set by regional and local authorities and cannot be changed. Let's add one more thing to this: by creating an HOA, the owners of the premises will be able to clearly track what their money is spent on and decide how to deal with the common property. With a competent approach, you can cope with many problems, for example, to obtain subsidies for the maintenance or repair of a house, etc.
At the same time, it is necessary to take into account the alleged disadvantages of the HOA. For example, the possibility of bankruptcy, which can occur due to irrational use of resources, unprofessional management, or for other reasons.
In accordance with paragraph 1 of Art. 36 of the Housing Code to owners of premises in an apartment building on the basis of a common shared ownership owns premises that are not part of apartments and are intended to serve more than one room in the house:
Elevators, elevator and other shafts; - corridors, stairs, staircases; - technical floors, attics, basements, roofs; - enclosing load-bearing and non-load-bearing structures; - mechanical, electrical, sanitary and other equipment of the building; - the land plot on which it is located, with elements of landscaping and improvement, etc.
Please note: the house itself is not owned by the HOA and is not its main asset, however, like the land plot on which the apartment building is located.
The creation of an HOA, like any other business, requires consistency. According to the law, an HOA as a non-profit organization can be created with the consent of more than 50 percent of the owners. The rest are obliged to obey the majority. Moreover, an HOA can be created even if the house has state or municipal apartments, as well as in newly-built houses, when the tenants have not yet formalized the right of ownership. In the latter case, when voting, the future owners will confirm their rights, for example, by an investment agreement, sale and purchase agreement, etc.
In addition to the decision to create a homeowners association, the general meeting must, by a simple majority of votes, adopt the charter and elect the board (clause 2 of article 135 and clause 2 of article 147 of the RF LC). The board can only include members of the HOA (clause 2 of article 147 of the LC RF). The members of the board will separately elect a chairman from their composition (clause 3 of article 147 of the RF LC). Homeowners' Association is legal entity, which means that you need to register it, make a seal, open a bank account, etc.
Starting from December 15, 2007, state registration of homeowners' associations (as well as a number of other non-profit organizations) is carried out in accordance with the procedure established by the Federal Law of 08.08.2001 No. 129-FZ "On state registration legal entities and individual entrepreneurs"(In connection with the entry into force from this date Federal law dated November 29, 2007 No. 278-FZ "On Amendments to Article 1 of the Federal Law" On Non-Commercial Organizations ").
That is, since December last year, documents for state registration of HOAs must be submitted not to the territorial administration of the federal registration service, but to the tax inspectorate at the location of the HOA, where the decision on state registration is made and an entry is made in the Unified State Register of Legal Entities. The forms of documents submitted to the registering authority for state registration have also changed. They are defined by the Decree of the Government of the Russian Federation of June 19, 2002 No. 439 "On the approval of forms and requirements for the execution of documents used for state registration of legal entities, as well as individuals as individual entrepreneurs."
Let's say a few words about membership in the HOA. Entry into the partnership and exit from it occurs on the basis of a written application (Article 143 of the LC RF). From the moment the tenant ceases to own the premises (for example, when selling an apartment), he ceases to be a member of the HOA. The new owner can also join the partnership upon a written application.
Homeowners' associations can itself conclude contracts for house maintenance, garbage disposal, cleaning adjoining territory and other works and services. The owners of apartments and non-residential premises, including those who are not members of the partnership, must transfer money to him for utilities, water, heat, etc. And already the HOA from its current account pays with specialized organizations.
Do not lose sight of the fact that the HOA, although it is a non-profit organization, can earn money on its own. To achieve the goals stipulated by the charter, the law allows HOAs to engage in economic activities. True, the list of such activities is small, it is limited to three types (clause 2 of article 152 of the RF LC). It:
1) maintenance, operation and repair of real estate in an apartment building; 2) construction of additional premises and common property objects in an apartment building; 3) renting out, leasing part of the common property in an apartment building.
What can add up to additional income of the partnership.
Use of land converted to common ownership. Income can be earned from rent land plots for rent, for example, for a parking lot, kiosk, etc.
Leasing of premises in common ownership. Basements, attics or outbuildings converted, say, into a workshop or a doctor's office and rented out can also bring income.
True, the funds received can either be used to pay general expenses, or concentrated in funds that meet the charter of the partnership (clause 3, article 152 of the LC RF). For example, at the expense of income from entrepreneurial activities, it is possible to carry out improvement of the house and the surrounding area, repair of elevators.
Study maintenance and the operation of a residential building can be the staff of the HOA or a specialized organization. The chairman of the board concludes either labor or civil law contracts with individuals, or an agreement with a legal entity for the maintenance or management of the house.
A treaty requires great attention, which, if concluded, will become the most important document after the charter. It is drawn up only in writing (clause 1 of article 162 of the RF LC) and necessarily includes the address of the house, the composition of the common property, a list of works on its maintenance and repair, the procedure for changing such a list, a list of provided utilities, the rules for calculating the price of the contract, the cost of maintenance, repair living quarters and utilities, the procedure for payment, as well as control measures for the management organization's fulfillment of its obligations.
The minimum period for which an agreement for the management of an apartment building can be concluded is a year, the maximum is five years (clause 5 of article 162 of the RF LC). If, at the end of the term, none of the parties declares the termination of the contract, it is considered extended on the same terms (clause 6 of article 162 of the RF LC).
Now let's move on to a very difficult topic - the issue of taxation of homeowners' associations. It is well known that with the emergence of new organizational and legal forms or types of contractual relations or transactions, taxation problems arise, since tax legislation often does not take into account their specifics. The main question that arises from the HOA is whether it is necessary to include in tax base on VAT and in the composition of income taken into account when calculating income tax, payments received from residents and from income from the lease of common property objects.
In order to answer it, it is necessary to establish the status of the HOA. Let's return to its definition, enshrined in the Housing Code of the Russian Federation. So, first of all, HOA is a non-profit organization, that is, a legal entity, and in accordance with the current tax legislation all legal entities are taxpayers and are required to register with tax authority... Non-profit organizations are no exception to general rule and are considered payers of taxes and fees established by law. The main difference between non-profit organizations is that making a profit is not the main goal of their activities. However, this does not exclude the possibility of non-profit organizations to engage in entrepreneurial activity if it serves the achievement of statutory goals. The profit received as a result of a non-profit organization's entrepreneurial activity is not subject to distribution among the participants and is intended to achieve the goals set forth in the organization's charter. In this case, in the opinion of the financial authorities, set out in numerous letters of the Ministry of Finance of the Russian Federation, he has an obligation to pay income tax and VAT.
In addition, for HOAs (subject to the restrictions established by clause 3 of article 346.12 of the Tax Code of the Russian Federation), it is possible to switch to a simplified taxation system (USN) and, as a result, exemption from the payment of income tax, VAT (excluding VAT, payable when importing goods into the customs territory Russian Federation, as well as VAT payable in accordance with Art. 174.1 of the Tax Code of the Russian Federation), corporate property tax and UST. Organizations using the simplified tax system pay for mandatory pension insurance in accordance with the legislation of the Russian Federation. Other taxes are paid by organizations applying the “simplified tax system” in accordance with the legislation on taxes and fees.
When switching to the simplified tax system, the homeowners' partnership will need to decide on the object of taxation. If the HOA expects to live clearly according to the estimate approved at the general meeting, without engaging in entrepreneurial activity, it is more expedient to choose the object of "income". Most likely, the same object will be more profitable, even if the HOA wants to earn money on their own by renting out premises or providing any services. Although in the latter case, another option is also possible (income minus expenses) - when the cost part will be comparable to the income part.
You can rent property from the HOA that is in the common use of the members of the Partnership and other homeowners, if such use does not create obstacles to the use of the rest of the property and the organization HOA activities(part 2 of article 137 of the LC RF).
The tenant has the right to lease a land plot, non-residential premises, as well as part of the common property (for example, a wall for placing a banner). There have been cases when a partnership leased the area at the entrance to install a payment terminal.
In the practice of Russian courts, there has been a tendency to the fact that any property common use a residential building can be transferred for use, with the exception of communications and property necessary for the implementation of the activities of the Association of Housing Owners for managing a residential building and organizing the life of residents (playground, collection points for household waste, elevator, etc.).
How can I rent premises from the Partnership?
IMPORTANT: It is impossible to conclude such a deal without the approval of the owners and members of the partnership (part 3 of article 44 of the Housing Code of the Russian Federation).
The best option is a situation when the general meeting of homeowners immediately approves the list of objects that tenants allow to rent and, on the basis of this protocol, the partnership enters into agreements with any tenant during the work of a non-profit organization.
V in this case the decision of the owners' meeting is the task of the future tenant.
As a rule, the tenant himself organizes the convocation of the meeting or makes a door-to-door round and asks for consent to the delivery of the property.
The lease of premises is subject to registration with Rosreestr if the period of use of the real estate is less than a year. If the term does not exceed a year, then it is not necessary to register the lease right (part 2 of article 651 of the Civil Code of the Russian Federation).
Civil Code of the Russian Federation Article 651. Form and state registration of a lease agreement for a building or structure
- The lease agreement for a building or structure is concluded in writing by drawing up one document signed by the parties (paragraph 2 of Article 434).
Failure to comply with the form of the lease agreement for a building or structure entails its invalidity. - A lease agreement for a building or structure, concluded for a period of at least a year, is subject to state registration and is considered concluded from the moment of such registration.
On behalf of the HOA, the agreement is signed by the chairman of the board, who is elected by the members of the partnership. To check the authority, it is enough to obtain an extract from the Unified State Register of Legal Entities or demand from the chairman the minutes of the meeting at which he was elected.
If the contract is not registered, then the period for using the property starts from the moment the parties approve the deed of transfer. Based on the date of signing the act, the parties determine the period of use of the facility, calculation of fees and calculation of penalties.
Most likely, the partnership has a draft agreement that is constantly signed with all tenants. At the same time, the law gives the tenant the right to make his own adjustments to the contract or offer his own version.
REFERENCE: This document must indicate the rental period, payment (as a rule, the monthly cost is indicated), payment term. In the contract, it is necessary to describe the subject of the transaction in as much detail as possible.
If the subject is part of a room or part of a wall of a building, then it is best to draw up a layout diagram indicating the exact dimensions and coordinates. Such a scheme should be marked as an annex to be signed by the parties.
The responsibility of the parties, the form and amount of responsibility are indicated.
Land use contract
In some cases, in addition to the lease agreement, it is necessary to conclude a use agreement land plot... A land use agreement is concluded if, by the nature of the lessee's activities, an unlimited number of persons pass to the leased property.
For example, a partnership has rented out premises for a store and this store needs so that customers can go to the store. Also, the land can be used for parking for cars.
If the tenant will be engaged in a licensed type of activity, then most likely the licensing department will require such an agreement.
ATTENTION: If the owner of such a site is a partnership, then the parties will not change, and if the administration, then the contract is concluded on a general basis or an easement is established.
Nuances and pitfalls
The main pitfall in renting a HOA is the lack of a general meeting of homeowners or members at which the deal was approved. The meeting may declare the transaction invalid in court if it did not approve it and such a transaction is large (part 6 of article 46 of the RF LC).
At the same time, the procedure for further approval may be approved in the charter of the organization. For example, the deal was concluded without a meeting of the owners, but later, at the general meeting, the members of the partnership approved the deal, then such a deal will be valid.
The charter allows the establishment of the right of the general meeting to transfer powers to the board of the HOA, if, according to the law, such powers do not belong to the exclusive competence of the meeting.
The right to rent non-residential premises can also be transferred to the board.
That's why before concluding a contract, the charter of the organization should be read.
IMPORTANT: Another obstacle can be an illegitimate meeting. Such a meeting can be considered illegitimate if less than half of homeowners are present.
Nowadays, housing in Russia is often rented out and upon presentation of the protocol to the tenant it is impossible to verify who signed the name, the owner or tenant of the property, or a family member. If non-owners took part in the meeting and signed the protocol, then the court will recognize this decision as illegal (part 6 of article 46 of the RF LC).
According to the Housing Code (Housing Code of the Russian Federation), a homeowners' association (HOA) is a non-profit legal entity. This means that his activities cannot be aimed solely at making a profit. But, like any other non-profit organization, the HOA has the right to engage in commercial activities to achieve the goals set for the partnership. Is it realistic for a HOA to earn money and how to do it, says the lawyer.
The main purpose of the HOA is the maintenance of residential buildings. For its implementation, funds are required. In accordance with Art. 151 of the Housing Code of the Russian Federation, the funds of the partnership are formed from contributions and payments of members of the HOA; income from business activities; subsidies and other sources.
Subsidies and payments of HOA members will be the topic of a separate article, today we will talk about the economic activities of HOA. Despite the fact that by law non-profit organizations have the right to engage in commercial activities, Art. 152 ZhK RF imposes restrictions on them. Clause 2 of this article contains a closed list of types of economic activities permissible for HOAs. These include:
Maintenance, repair and operation of real estate in an apartment building;
Construction of additional premises and facilities in an apartment building;
Renting out a part of the common property in an apartment building.
It is not hard to guess that the most attractive type of economic activity mentioned is the renting of common property.
First of all - the contract
In order for the partnership to be able to lease out any premises, the general meeting of the HOA participants must first determine what areas and to whom exactly the members of the partnership are ready to lease, for how long and for what rent. All other terms of the contract, which in principle do not have important value for members of the HOA, a lawyer is able to add to the contract, to whom the partnership will order a lease. Drawing up such an agreement will cost a certain amount, but you will have to pay only once: later this agreement can be used as a standard one for all tenants.
If the lease is long-term, you will have to register it. This business is troublesome and long, so it is better to conclude lease agreements for an indefinite period or for 11 months with the right to an unlimited number of renewals. This will avoid the need to register the contract, although the actual term of its validity in the end will be much more than a year.
Also, in the lease agreement of the HOA, it is necessary to provide for the procedure for terminating the agreement on the initiative of the partnership. As a rule, landlords determine that the contract is terminated by them in unilaterally with notifying the tenant one month in advance (maximum) without giving reasons. This allows you not to waste time on paperwork.
Rent: important little things
Since the issue of renting out premises is within the competence of the general meeting, an appropriate decision is made for each tenant. Otherwise, dissatisfied members of the partnership have the right to challenge the legality of the tenants' presence in the building.
You should also seek help from an accountant who will tell you how to properly account for rental income and pay taxes on them. After the agreement has been concluded, the HOA can offer its tenants services for the operation of premises, their repair, etc. Thus, the tenant will receive a certain set of services, and the partnership, on a completely legal basis, will help out more money for one room.
What difficulties does camaraderie face along the way? First, it should be remembered that the law only allows renting common areas at home and only by decision of the general meeting of members of the HOA. Therefore with special attention it is necessary to relate to the issues of the legality of the meeting and the correctness of the execution of its decisions. If less than half of the HOA members are present at the meeting, it is not authorized to make any decisions. Empty apartments cannot be rented out. They cannot be considered common property therefore not subject to rental.
Secondly, the partnership cannot build, for example, a parking lot for subsequent leasing: according to the law, the HOA has the right to lease only the common property located in the house, and parking does not belong to such property. At the same time, such a parking lot can really be created for the needs of the members of the partnership. The organization of the parking lot requires a lot of effort. It is necessary to contact the municipality and the prefecture of the county in order to obtain the allocation of the land allocation for the parking lot. If the site belongs to the HOA, you need to change its purpose.
As for the tenants themselves, it must be borne in mind that no one will allow any industrial enterprise to be located in a residential building. This will violate the interests of not only the members of the partnership, but also the residents of the surrounding houses. When arranging entertainment facilities (restaurants, clubs, etc.), it is necessary to separately stipulate in the lease agreement not only the schedule of their work, but also the obligations for additional equipment of the rented premises. To preserve the peace of the tenants, such tenants can equip the premises with noise-absorbing panels that will not let extraneous sounds into the apartments.
Homeowners' associations are not entitled to earn by selling pies, car rental or providing other services not provided for by law. But the opportunities that are provided to partnerships by law make it possible to extract sufficient profit to maintain the house in a good condition. The main thing is to properly organize the process, draw up documents and pay taxes. Then residents will be able to afford both security at the entrance and flowers on the flights of stairs.
