Evasion of state registration of transfer of ownership

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The process of transferring ownership of real estate must be recorded in the state register. This gives a certain degree of reliability. If you need to confirm that residential or non-residential property (for example, an apartment, house or even a dormitory) belongs to you, then using other methods to prove your case will be very problematic.

The state registration mark is practically the only document that can confirm the transfer of ownership of real estate to a specific person.

What does the legislation say about this?

If a person has not yet properly documented the fact of the transfer of real estate into ownership, then no controversial situations will arise as long as he simply enjoys the object that is now in his hands. However, if a person begins to actively use real estate that actually belongs to him, but this is not enshrined in law, then he may have conflict situations with representatives of the law.

The fact is that the regulations of our country say that a citizen does not have the right to conclude any agreements if the fact that the property belongs to him is not fixed at the legislative level. Otherwise, a citizen simply will not be able to fully manage his property. And all transactions that he makes during the entire period of absence of appropriate registration will not have legal force, and they cannot be called legal in any way.

To be able, for example, to rent out property or even sell it, you must present the appropriate certificate. As a rule, such a requirement is put forward by all citizens who wish to enter into any transaction with the owner of real estate. If the owner cannot do this or refuses, then all confidence in him on the part of his potential counterparty is lost.

Therefore, we can say for sure that the moment of transfer of ownership must be documented in accordance with all norms and standards of the law. This requirement is enforced by law. The reason for this need is so that citizens who plan a similar moment of business relations with the owner of the property are sure that he owns this property legally. Consequently, all concluded transactions will be carefully protected by law from the standpoint of respecting all rights and obligations of both parties.

In addition, a state certificate for a specific type of real estate will confirm that all operations on the part of the owner are authorized. This document provides protection for the person to whom the property is transferred to full and unconditional ownership.

Attention: transfer... ownership rights

Simple doesn't mean good

Often, in order not to miss out on a profitable buyer, managers and executives sign hastily drawn up contracts. As a rule, they are far from the canons established by the Civil Code. There is nothing wrong with this, because the principle of freedom of contract allows for free expression.

However, the original intent of such contracts, in particular, at what point it is necessary to write off shipped goods from the balance sheet or close unfinished goods, is sometimes inaccessible not only to a simple accountant, but also to an experienced lawyer. As a result, errors arise in accounting for contracts and problems with tax authorities.

To simplify relationships as much as possible, many companies do not enter into written contracts, but release or accept goods only on the basis of invoices. That is, they enter into an oral agreement, which is permitted by Article 158 of the Civil Code.

An oral agreement may look like this: the buyer transfers money to you based on the price list. In this case, to confirm the sale, a regular invoice (TORG-12), freight transport or railway invoice is sufficient.

As stated in Article 158 of the Civil Code, in this case, their “will to complete a transaction” is clear from the behavior of the parties. True, according to another article, Article 162, having concluded an agreement orally, in the event of a dispute, your company is deprived of the right to refer to witness testimony to confirm the transaction and its terms.

The invoice is just one of the shipping documents and does not define the subject of the contract or its terms. It is formalized during the execution of many civil contracts, which provide for various purposes for the transfer of goods.

Thus, under a purchase and sale agreement, goods are transferred by the seller to third parties for ownership; under a commission agreement, goods are transferred for sale to third parties, and ownership does not pass to the intermediary. Under the storage agreement, the invoice is also issued for safekeeping without transfer of ownership. In addition, goods can be transferred using a consignment note under trade credit agreements, as collateral, etc.

That is, on the basis of only one invoice it is impossible to judge the nature of the transaction. In addition, the invoice, as a rule, is signed by those who are authorized to receive (transfer) the goods, and not to sign contracts. That is, in itself, in the absence of a written agreement or payment order, the date of the invoice cannot be accepted as the moment of transfer of ownership.

Writing is not always difficult

In order for a transaction to be considered in writing, it is not at all necessary to draw up a document whose title says, for example, “Purchase and Sale Agreement.”

A written transaction can be very similar to a verbal contract: the buyer transfers money to you based on the invoice. The fact is that, unlike the price list and invoice, as a rule, they are signed by the manager authorized to conclude contracts.

In addition, the account actually contains all the essential terms of the contracts mentioned in paragraph 1 of Article 432 of the Civil Code. This is, first of all, the subject and terms of the contract, that is, the name, nomenclature, quantity and price of the goods.

The invoice also indicates the cost of delivery or the condition of pickup, payment terms, etc. All this allows us to consider the invoice tantamount to an offer to conclude an agreement (offer), and its payment as confirmation of the offer.

Note that Article 434 of the Civil Code also allows for the exchange of documents through postal, telegraph, telephone, electronic or other communications. The main requirement is the ability to reliably establish from whom the document was received.

However, not only in the invoice, but also in the text of the commercial proposal, which can also be considered an offer, you will not find any mention of the moment of transfer of ownership.

In this case, the general rule must be applied: ownership rights arise from the moment the goods are transferred. “If the goods must be delivered by the seller, the transfer of ownership occurs at the moment the goods are delivered to the buyer at the destination,” explains Marina Parkhacheva, General Director of the Econ-Profi Consulting Group (www.econ-profi.ru). “In the case of self-pickup, ownership also passes at the moment the goods are delivered to the buyer or carrier, but at the location of the supplier.”

There are different transitions

Accountants who deal with foreign contracts are probably familiar with the terminology of the international INCOTERMS rules (they can be viewed on the Internet at www.ilexim.ru/info/inkoterms/). But these rules determine, first of all, the moment of transfer of risks of loss and damage to goods, as well as the obligation to bear costs associated with the goods: for its delivery, insurance, etc. But they do not establish the moment of transfer of ownership. And we need to remember this.

The fact is that with the transfer of ownership rights, risks automatically transfer, but not vice versa. That is, the transfer of risks does not yet mean the transfer of ownership.

This may not matter to your foreign partners, but it will certainly interest the tax inspector. Therefore, if the foreign economic agreement does not establish the moment of transfer of ownership, then big problems may arise in the future.

“Under certain circumstances, ownership of goods in foreign trade transactions may arise at the time of transfer of the goods to the cargo carrier (transport company), adds Alexey Bogomolov, senior tax manager (www.gtrus.ru). “In this case, be sure to include the cost of imported goods in transit in your 2003 property tax calculation.”

Let us remind you that from January 1, 2004, only fixed assets are subject to property tax.

Limitless fantasy

The worst thing is when the moment of transfer of ownership is not specifically specified in the contract. An example is an agreement that is widespread today, according to which one company transfers a product to another “for sale.” Such an agreement deliberately disguises the moment of transfer of ownership. It is unclear from it whether the goods are transferred to the buyer or whether he is selling “someone else’s” goods on behalf of the owner.

According to Alexey Bogomolov, if the seller agrees that the buyer can sell the goods before the transfer of ownership, then he can generally be qualified as a commission agent. After all, it is intermediaries who sell goods that do not belong to them by right of ownership.

In addition, if the moment of transfer of ownership is “vague”, problems arise with the offset of VAT on transport costs. It cannot be deducted until the goods are accepted for accounting.

Evaluating such a contract is difficult even for a professional lawyer. “It is impossible to imagine what decision an ordinary accountant will make in this situation. He can interpret the agreement in the way that seems most optimal to him from a taxation point of view or the simplest from an accounting point of view,” notes Marina Parkhacheva and advises using not imagination, but the opportunities that civil legislation provides. For example, when drawing up a contract, the moment of transfer of ownership can be “postponed” by linking it with the occurrence of a specific event. This right is given to us by Article 491 of the Civil Code. In this case, the actual transfer of the goods no longer matters. The ownership right until the occurrence of the event specified in the contract will remain with the seller.

Elusive moments

“Regardless of which method of determining revenue you work with, there is an unshakable rule: if there is no object of taxation, there is no obligation to pay tax,” emphasizes Marina Parkhacheva. This is especially important for companies that charge VAT “on shipment”.

Unfortunately, although the majority of practicing lawyers agree with the words of Marina Parkhacheva, tax inspectors do not at all consider this rule to be unshakable. In their deep conviction, the moment of sale does not always coincide with the moment of transfer of ownership (read more about this problem on page 76).

They draw their confidence from Article 167 of the Tax Code. The word “shipment”, which in this article is equated to sale, is understood by tax authorities as... the physical transfer of goods, regardless of the moment of transfer of ownership.

As a counter-argument, lawyers suggest that firms use the provisions of Article 38 of the Tax Code, which states that the obligation to pay tax arises simultaneously with the object of taxation. However, many believe that the arbitration may well decide that Articles 38 and 167 of the Tax Code are absolutely equivalent, which means that the outcome of the case will depend only on the internal conviction of the judge.

You can rely on logic and common sense. But while there is no consensus on this issue in arbitration practice, it is better to do as the tax authorities demand. Moreover, sooner or later you will have to pay VAT. It’s another matter if the “violation” is already recorded in the tax audit report. In this case, you can try to prove the absurdity of the inspectors' demands in court.

Anna BUDNEVICH

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How is state registration carried out?

According to the law of our country, any citizen has the right to transfer his property into the possession of another person. State registration was established in Russia at the end of the last century and is valid until it is replaced by some other law, which will subsequently regulate such legal relations.

There is no period during which it is necessary to register ownership of another person. That is, our legislation does not establish a clear time frame for documenting the fact of transfer of property. However, a citizen who transfers property to another person must justify his actions with a number of reasons. Since it is subsequently necessary to exclude the transfer of rights from the selected subject to another. If the right to dispose of this property is transferred into the hands of a specific person, it will not be possible to draw up, for example, a deed of donation for the same property or include it in a will.

Documentation for state registration

Documents for registration for transfer of ownership must be properly completed and provided in full. The employee must present the following documents and their copies according to the list:

appeals that are signed by both the owner and the citizen who receives real estate into his possession;
identification documents of both parties (passports);
a receipt indicating payment of the state duty;
a document that confirms that the owner actually fully owns the object and is authorized to dispose of it at his own discretion;
an agreement on the transfer of real estate and unsold property to another citizen, which stipulates the rights and obligations of both parties, and also indicates some nuances in case of force majeure, etc.;
act of acceptance and transfer of real estate.

The last two types of documentation must be made in triplicate and submitted along with other documents to the local office of Rosreestr.

Payment of state duty

The amount of state duties is regulated by the Tax Code of the Russian Federation (Chapter 25.3), it can be viewed in advance in any open source. However, it is recommended to check with a specialist on the spot exactly what amount and in what proportion the parties to the transaction must pay.

Legislation is constantly undergoing changes, and therefore the usual amount of the standard state duty for a particular procedure may change.

Since March 2013, the need for state registration of a contract for the purchase and sale of residential real estate has been abolished; accordingly, the fee in this case is charged only for registering the transfer of ownership.

The applicant provides a receipt for payment of the fee if he considers it necessary. The law does not require the inclusion of this document in the general package (Clause 7, Article 18 of Law No. 218-FZ).

Government duty

The state provides for payment of the state fee under the agreement on the transfer of rights to own and dispose of real estate in the amount of 2 thousand rubles. In the event that some adjustments need to be made to an existing entry in the state register, the cost of such a service will range from 350 rubles to 1 thousand rubles, depending on what exactly needs to be changed. If desired, one of the parties can arrange an installment plan. However, you need to decide in advance whether you will pay the entire amount or in parts, since before submitting the document you will need to pay the state fee.

However, there are categories of citizens who have the right not to pay as state duty when making this type of transaction. These include citizens in the public service, as well as representatives of the Central Bank and citizens classified as low-income.

If an overpayment occurs, the difference is returned to the payer, but this can only be done if state registration has been successfully completed and a certificate has been issued. Otherwise, the amount paid as state duty is completely lost.

Other amounts of state duty, since the question of how much to pay is not always certain:

Registration of rights to own real estate: 2 thousand rubles.
Termination of rights to real estate (house, land, imported real estate or even a car, commercial buildings): 500 rubles.
Registration of shared ownership rights: 500 rub. from everyone.

The need for state registration of ownership of real estate

From a legal point of view, the concepts “owner” and “proprietor” of real estate are not synonymous. The citizen who has received the object on a legal basis is considered its owner, and the documents are called title documents. These include contracts and agreements:

privatization of residential premises, giving the right to a citizen to receive housing from the state once;
purchases and sales or exchanges when purchasing housing on the secondary market;
giving when receiving a gift from the donor;
equity participation in construction when planning to purchase housing on the primary market;
about mortgage;
on the division of material assets held jointly, most often upon divorce between spouses;
court decision on the division of property assets.

The above documentation is fundamental to turning the owner into an owner. Ownership of real estate arises on the basis of an extract from the Unified State Register of Real Estate, called a title document.

The absence of registration of property rights imposes a ban on the completion of all legally significant transactions, including alienation, lease or lease and transfer as an object of collateral when registering loans and credits.

Supporting documentation for real estate

Once all the necessary checks have been carried out, the new owner is issued a corresponding certificate. It is government confirmation that the registration procedure was successfully completed and all necessary entries were entered into the state register.

A document confirming that the new owner has every right to dispose of the object transferred to him (including official property) - an extract from the Unified State Register of Rights (USR) about the existence of a registered right. This document can be freely ordered from the authority where the registration process took place. However, you need to have grounds, which can be, for example, an agreement with the previous owner on the transfer of residential property, or an act of donation or the right of inheritance. These points are provided for by the tax code.

Difficult situations

In practice, situations often arise when the owner, when transferring property to another person, evades registering the property. In this case, until there is a corresponding entry in the state register, the transaction cannot be completed. The recipient must either require the owner to undergo registration or refuse the transaction altogether.

If the owner selling the real estate is liquidated, then the citizen purchasing the property may require its registration through court proceedings or contact the relevant authority with a request to register this property.

When a person enters into a purchase and sale agreement, for example, of a plot of land or a smaller product (garage, car, apartment), the buyer, first of all, should ask the seller not about the cost of the object, as is usually the case. Initially, it is of great importance to have a record in Rosreestr stating that this person legally owns this property. Otherwise, it will be necessary to burden him with a trip to the MFC or terminate the contract, otherwise serious conflicts may arise.

If the case concerns some thing, then the carrier will need to deliver this thing to the recipient of the rights to it, that is, transfer it for possession or give it to a special center for storage until the right to dispose of it is registered.

If an enterprise was reorganized before the current law came into force, then it has the right to retain ownership and not pay state duty to the state.

The simplest ways to re-register property

If the apartment has a low market value (less than 1 million) or has been owned by the owner for at least five years, then its alienation is not subject to tax. In this case, you can safely draw up a purchase and sale agreement, since such a transaction will not be of interest to the tax authorities.

This is important to know: Recognition of property rights in the event of bankruptcy of a developer

However, the most reliable and fastest is still a gift agreement. It can be appealed by relatives whose inheritance rights were affected by the deal, but if all legal procedures are followed, it will be difficult to declare the agreement illegal or void.

The timing of the transfer of rights under donation and sale agreements is the same, since they depend only on the services of a notary and the execution of documents at the state registration authorities. However, a gift deed is not only cheaper, but also safer.

Where to contact?

After going through the procedure of signing contracts with a notary, the parties to the transaction must immediately contact the body that carries out state registration of rights to real estate. These are territorial divisions of the Federal Service for State Registration, Cadastre and Cartography of the Russian Federation.

Documents can be submitted to the MFC, where they will be checked, accepted for consideration, and transferred to the desired organization. At the appointed time, the right to the property will pass to the new owner. A certificate of ownership should be obtained from the authority where the documents were submitted.

If any claims arise regarding the submitted documents, the transfer of rights will be denied. Then you'll have to start all over again.

Terms of transfer of rights to real estate

Since the laws do not have standards defining the difference in the procedures for transferring rights to real estate based on kinship, the re-registration of an apartment into the ownership of a relative occurs on a general basis. Purchase and sale or gift agreements do not include a relationship clause because it has no procedural significance.

The degree of relationship matters only when collecting taxes and inheriting by law. The only circumstance that speeds up the process of transfer of rights is the degree of trust of the parties to the transaction.