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Give Caesar a Caesarean.
05/11/2019
How to arrange an apartment for rent? What responsibility threatens those who rents living space illegally?
Leading lawyers of the European Legal Service Alexander Spiridonov and Pavel Kokorev tell RIAMO in Moscow.
Conclusion and registration of the contract.
According to the Civil code of the Russian Federation, the owner has the full right to rent an apartment to an individual. To arrange everything according to the law, you will need to sign a contract, as well as regularly pay taxes.
If you rent an apartment to a natural person, it is necessary to conclude a contract of employment of premises (article 671 of the civil code). It should reflect information about the apartment (address, area, cadastral number), the lease term and the procedure for payment, may also be present items of security payment (pledge), a description of furniture and appliances, if the apartment is rented with them. Alexander Spiridonov, a leading lawyer of the European Legal Service, recommends that the list and condition of movable property located in the apartment be necessarily reflected in the contract, as well as to determine who is responsible for it. This will help in case of damage to protect themselves.
In addition, the contract can stipulate the possibility (or impossibility) of sublease or re-loan, as well as to distribute between the tenant and the landlord the duties and costs of capital and maintenance.
If you do not specify the lease term in the contract, it will be considered indefinite, but should not exceed 5 years. In this case, each of the parties has the right to terminate the contract at any time by giving the other party three months ' notice.
If the contract is concluded for a period of less than a year, it is not required to notarize it, it will be enough signatures of the parties, explains Pavel Kokorev, a leading lawyer of the European Legal Service.
If this term is more than a year, then according to article 674 of the Civil code of the Russian Federation, it is necessary to register the contract in the Federal Register. How to do this, you can find on the website or by calling the hotline: 8 (800) 100-34-34.
The amount of the fee can be changed by agreement of the landlord and the tenant – but not more often than once a year.
Often, the contract includes a clause on the pledge, which is made by the employer to ensure the performance of obligations under the contract, including the obligation to compensate for losses or pay a penalty in case of violation of the contract. If there were no violations, at the end of the contract, the Deposit is returned to the tenant or counted for the last month of the lease.
Payment acceptance.
Payment by law can be received both in cash and on the card.
If you receive cash, it is desirable to write a receipt, which specifies the date, information about the parties, the contract on the basis of which the funds are received, the amount of payment.
When paying on the card, it is desirable for the lessor to specify the purpose of payment: "Payment under the contract of employment (lease)". This is especially true if the amount exceeds 15 thousand rubles, because according to Art. 7 of the Federal law of 07.08.2001 No. 115-FZ "on combating legalization (laundering) of proceeds from crime and financing of terrorism" the Bank is obliged to identify the client if suspected of legalization of proceeds from crime or financing of terrorism.
The Bank may even block the operation, warns Kokorev.
Calculation of taxes.
Lawyer Alexander Spiridonov says that the landlord can independently calculate and pay personal income tax only if he rents an apartment to a natural person who is not an individual entrepreneur. Moreover, this person can be both a citizen of the Russian Federation and a foreigner or a stateless person.
The tax should be calculated at the end of the year in which you received income from renting an apartment. The formula is as follows: personal income tax = income from renting property for the year x 13% (for tax residents of the Russian Federation). Tax residents are individuals who are actually in the Russian Federation for at least 183 calendar days during the next 12 consecutive months. If you are not a tax resident, a 30% rate applies.
According to the Director of the legal service "United center of protection" Konstantin Bobrov, if utility payments are made by the owner of the apartment, and the employer then reimburses them to him, then this amount is also considered income of the landlord and is subject to taxation, and therefore included in the Declaration of 3-pit.
Payment of taxes.
After the calculation it is necessary to fill the tax Declaration under the form 3-NDFL and to submit it to the tax office at the place of your account no later than 30 April of the year following the year of income from the rental of apartments for rent (clause 3, article 228, paragraph 1, article 229 of the tax code). The amount of tax must be paid no later than July 15 of the year following the year of receipt of income from renting an apartment. In addition to the passport and Declaration, the tax office may ask to present the lease agreement.
You can reduce the amount of taxes from renting an apartment, paying them under a special tax regime for the self-employed through the application "My tax". This special regime in the form of a tax on professional income from January 1, 2019 has the right to apply natural persons (including SP) operating in Moscow, Moscow, Kaluga regions, Tatarstan. The main advantages of the special regime: payers are exempt from personal income tax and VAT. Instead, at the end of the calendar month you need to pay tax at a reduced rate of 4%. Insurance contributions to the Pension Fund and the MHI Fund can be paid on a voluntary basis.
The expert recalled that the amount of annual income for the self-employed is limited to 2.4 million rubles. If the limit is exceeded, the individual loses the right to apply the special mode. From the day of exceeding the limit, income is subject to personal income tax.
Consequences of illegal delivery of the apartment.
Theoretically, the tax authorities can learn about the fact of renting an apartment and receiving income through neighbors, tenants, during planned or unscheduled inspections, etc.in practice, if the person himself does not say that he rents an apartment, it is unlikely that the authorities will learn about it, Konstantin Bobrov believes.
In any case, to bring a citizen to justice for non-payment of taxes, the fact of regular receipt of money from another citizen for living in an apartment must still be proved. This is especially unlikely in case of cash payment.
However, the IRS can learn about income from other databases. For example, the person on delivery of the apartment earned for a year the big sum. At the same time, he did not file a Declaration, he is not officially employed, but he bought a car for 1.8 million rubles. Then the inspectors of the Federal tax service may have questions about the origin of the money. After all, information about the car that appeared in the citizen in any case will get to the tax service from the traffic police.
The penalty for non-payment of taxes depends on the amount of arrears. With a small amount, the taxpayer can be fined. Thus, in accordance with paragraph 1 of article 122 of the tax code, failure to pay or incomplete payment of tax amounts (incorrectly calculated amount, understated tax base) entails a fine of 20% of the unpaid tax amount.
According to item 1 of Art. 119 of the tax code for not in time provided Declaration on the taxpayer can impose a penalty-5% from the sum of the tax which is not paid in time, for each full or incomplete month from the date established for its representation, but no more than 30% from the specified sum and not less than 1 thousand rubles.
For tax evasion on a large scale can be brought under criminal article (article 198 of the criminal code). For this purpose it is necessary not to pay taxes more than 900 thousand rubles for three financial years in a row.
The tax authorities in this case will have to prove that each ruble of the above amount received for renting an apartment. It is quite difficult, of course, if you do not make all payments electronically or if the tenant does not come to the police with all the receipts, sure Bobrov.
According to Kokorev, article 198 of the criminal code belongs to the category of crimes of small gravity, for which the punishment of imprisonment is practically not applied. Moreover, according to the criminal code, if a person first committed a crime of minor gravity and there are no aggravating circumstances, it is impossible to apply a penalty of imprisonment. Under this article, the punishment is mainly in the form of a fine.
Also, lawyers note that a person can not be prosecuted for a crime with an expired Statute of limitations – in this case, after three years from the date of committing a tax crime.
Responsibility of the tenant.
Since the tenant is not the recipient of income, he cannot be held liable. Only the landlord may be liable for failure to pay taxes.
Leading lawyers of the European Legal Service Alexander Spiridonov and Pavel Kokorev tell RIAMO in Moscow.
Conclusion and registration of the contract.
According to the Civil code of the Russian Federation, the owner has the full right to rent an apartment to an individual. To arrange everything according to the law, you will need to sign a contract, as well as regularly pay taxes.
If you rent an apartment to a natural person, it is necessary to conclude a contract of employment of premises (article 671 of the civil code). It should reflect information about the apartment (address, area, cadastral number), the lease term and the procedure for payment, may also be present items of security payment (pledge), a description of furniture and appliances, if the apartment is rented with them. Alexander Spiridonov, a leading lawyer of the European Legal Service, recommends that the list and condition of movable property located in the apartment be necessarily reflected in the contract, as well as to determine who is responsible for it. This will help in case of damage to protect themselves.
In addition, the contract can stipulate the possibility (or impossibility) of sublease or re-loan, as well as to distribute between the tenant and the landlord the duties and costs of capital and maintenance.
If you do not specify the lease term in the contract, it will be considered indefinite, but should not exceed 5 years. In this case, each of the parties has the right to terminate the contract at any time by giving the other party three months ' notice.
If the contract is concluded for a period of less than a year, it is not required to notarize it, it will be enough signatures of the parties, explains Pavel Kokorev, a leading lawyer of the European Legal Service.
If this term is more than a year, then according to article 674 of the Civil code of the Russian Federation, it is necessary to register the contract in the Federal Register. How to do this, you can find on the website or by calling the hotline: 8 (800) 100-34-34.
The amount of the fee can be changed by agreement of the landlord and the tenant – but not more often than once a year.
Often, the contract includes a clause on the pledge, which is made by the employer to ensure the performance of obligations under the contract, including the obligation to compensate for losses or pay a penalty in case of violation of the contract. If there were no violations, at the end of the contract, the Deposit is returned to the tenant or counted for the last month of the lease.
Payment acceptance.
Payment by law can be received both in cash and on the card.
If you receive cash, it is desirable to write a receipt, which specifies the date, information about the parties, the contract on the basis of which the funds are received, the amount of payment.
When paying on the card, it is desirable for the lessor to specify the purpose of payment: "Payment under the contract of employment (lease)". This is especially true if the amount exceeds 15 thousand rubles, because according to Art. 7 of the Federal law of 07.08.2001 No. 115-FZ "on combating legalization (laundering) of proceeds from crime and financing of terrorism" the Bank is obliged to identify the client if suspected of legalization of proceeds from crime or financing of terrorism.
The Bank may even block the operation, warns Kokorev.
Calculation of taxes.
Lawyer Alexander Spiridonov says that the landlord can independently calculate and pay personal income tax only if he rents an apartment to a natural person who is not an individual entrepreneur. Moreover, this person can be both a citizen of the Russian Federation and a foreigner or a stateless person.
The tax should be calculated at the end of the year in which you received income from renting an apartment. The formula is as follows: personal income tax = income from renting property for the year x 13% (for tax residents of the Russian Federation). Tax residents are individuals who are actually in the Russian Federation for at least 183 calendar days during the next 12 consecutive months. If you are not a tax resident, a 30% rate applies.
According to the Director of the legal service "United center of protection" Konstantin Bobrov, if utility payments are made by the owner of the apartment, and the employer then reimburses them to him, then this amount is also considered income of the landlord and is subject to taxation, and therefore included in the Declaration of 3-pit.
Payment of taxes.
After the calculation it is necessary to fill the tax Declaration under the form 3-NDFL and to submit it to the tax office at the place of your account no later than 30 April of the year following the year of income from the rental of apartments for rent (clause 3, article 228, paragraph 1, article 229 of the tax code). The amount of tax must be paid no later than July 15 of the year following the year of receipt of income from renting an apartment. In addition to the passport and Declaration, the tax office may ask to present the lease agreement.
You can reduce the amount of taxes from renting an apartment, paying them under a special tax regime for the self-employed through the application "My tax". This special regime in the form of a tax on professional income from January 1, 2019 has the right to apply natural persons (including SP) operating in Moscow, Moscow, Kaluga regions, Tatarstan. The main advantages of the special regime: payers are exempt from personal income tax and VAT. Instead, at the end of the calendar month you need to pay tax at a reduced rate of 4%. Insurance contributions to the Pension Fund and the MHI Fund can be paid on a voluntary basis.
The expert recalled that the amount of annual income for the self-employed is limited to 2.4 million rubles. If the limit is exceeded, the individual loses the right to apply the special mode. From the day of exceeding the limit, income is subject to personal income tax.
Consequences of illegal delivery of the apartment.
Theoretically, the tax authorities can learn about the fact of renting an apartment and receiving income through neighbors, tenants, during planned or unscheduled inspections, etc.in practice, if the person himself does not say that he rents an apartment, it is unlikely that the authorities will learn about it, Konstantin Bobrov believes.
In any case, to bring a citizen to justice for non-payment of taxes, the fact of regular receipt of money from another citizen for living in an apartment must still be proved. This is especially unlikely in case of cash payment.
However, the IRS can learn about income from other databases. For example, the person on delivery of the apartment earned for a year the big sum. At the same time, he did not file a Declaration, he is not officially employed, but he bought a car for 1.8 million rubles. Then the inspectors of the Federal tax service may have questions about the origin of the money. After all, information about the car that appeared in the citizen in any case will get to the tax service from the traffic police.
The penalty for non-payment of taxes depends on the amount of arrears. With a small amount, the taxpayer can be fined. Thus, in accordance with paragraph 1 of article 122 of the tax code, failure to pay or incomplete payment of tax amounts (incorrectly calculated amount, understated tax base) entails a fine of 20% of the unpaid tax amount.
According to item 1 of Art. 119 of the tax code for not in time provided Declaration on the taxpayer can impose a penalty-5% from the sum of the tax which is not paid in time, for each full or incomplete month from the date established for its representation, but no more than 30% from the specified sum and not less than 1 thousand rubles.
For tax evasion on a large scale can be brought under criminal article (article 198 of the criminal code). For this purpose it is necessary not to pay taxes more than 900 thousand rubles for three financial years in a row.
The tax authorities in this case will have to prove that each ruble of the above amount received for renting an apartment. It is quite difficult, of course, if you do not make all payments electronically or if the tenant does not come to the police with all the receipts, sure Bobrov.
According to Kokorev, article 198 of the criminal code belongs to the category of crimes of small gravity, for which the punishment of imprisonment is practically not applied. Moreover, according to the criminal code, if a person first committed a crime of minor gravity and there are no aggravating circumstances, it is impossible to apply a penalty of imprisonment. Under this article, the punishment is mainly in the form of a fine.
Also, lawyers note that a person can not be prosecuted for a crime with an expired Statute of limitations – in this case, after three years from the date of committing a tax crime.
Responsibility of the tenant.
Since the tenant is not the recipient of income, he cannot be held liable. Only the landlord may be liable for failure to pay taxes.