KRT
Federal Tax Service of Russia from 03.11.2021 N BS-4-21/15521@ "On taxation of the land plot occupied by an apartment building, all premises in which belong to one person" (together with <Letter> of the Ministry of Finance of Russia from 15.04.2016 N 03-05-05-02/21894)
A land plot occupied by an apartment building in which all premises belong to one person is not exempt from taxation
On the basis of subparagraph 6 of paragraph 2 of Article 389 of the Tax Code of the Russian Federation land plots included in the common property of an apartment building are not recognized as an object of taxation for land tax.
In the case under consideration this exemption does not apply, because in accordance with paragraph 4 of Article 244 of the Civil Code of the Russian Federation for the emergence of common ownership it is necessary that the common property of an apartment building is owned by two or more owners of the premises of the apartment building.
On the basis of subparagraph 6 of paragraph 2 of Article 389 of the Tax Code of the Russian Federation land plots included in the common property of an apartment building are not recognized as an object of taxation for land tax.
In the case under consideration this exemption does not apply, because in accordance with paragraph 4 of Article 244 of the Civil Code of the Russian Federation for the emergence of common ownership it is necessary that the common property of an apartment building is owned by two or more owners of the premises of the apartment building.
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Can the common property in an apartment building be alienated?
The law does not permit the mere acquisition of that property which belongs to all owners
By virtue of Articles 289 and 290 of the Civil Code of the Russian Federation, the owner in an apartment building, along with the apartment, also owns a share in the right of ownership of the common property. Such property includes common premises of the building, load-bearing structures, mechanical, electrical, sanitary-technical and other equipment outside or inside the apartment, serving more than one apartment.
The full list of the common property of the building is defined in part 2 of the Rules of maintenance of the common property in an apartment house, approved by the Government of the Russian Federation from 13.08.2006 № 491.
Ч. Part 2 of Article 290 of the Civil Code of the Russian Federation prohibits alienation of a share in the right to the common property in the apartment building separately from the ownership right to the apartment.
According to part 4 of article 37 of the Housing and Construction Code of the Russian Federation, the owner of a room in a residential building cannot allocate in kind his share in the right of common ownership to the common property in the building, as well as alienate his share separately from the transfer of ownership of his room.
Thus, the law does not allow to simply acquire the property that belongs to all owners.
In addition, it is worth remembering that in accordance with paragraph 4 of part 1 of Art. 36 of the Housing and Communal Housing Code of the Russian Federation, p. 4. 1 part 1 of article 36 of the Housing and Construction Code of the Russian Federation, subparagraph "e" of paragraph 2 of the Rules № 491, the land under the building is the common property of the owners of the premises, if under the building in accordance with parts 2, 3, 5 part 5 of article 16 of the Federal Law of 29.12.2004 № 189-FZ "On enactment of the Housing and Construction Code of the Russian Federation" formed a land plot. Such a plot is transferred into common shared ownership free of charge, and encumbrances are prohibited.
But there are two problems here:
1. alienation should not
The full list of the common property of the building is defined in part 2 of the Rules of maintenance of the common property in an apartment house, approved by the Government of the Russian Federation from 13.08.2006 № 491.
Ч. Part 2 of Article 290 of the Civil Code of the Russian Federation prohibits alienation of a share in the right to the common property in the apartment building separately from the ownership right to the apartment.
According to part 4 of article 37 of the Housing and Construction Code of the Russian Federation, the owner of a room in a residential building cannot allocate in kind his share in the right of common ownership to the common property in the building, as well as alienate his share separately from the transfer of ownership of his room.
Thus, the law does not allow to simply acquire the property that belongs to all owners.
In addition, it is worth remembering that in accordance with paragraph 4 of part 1 of Art. 36 of the Housing and Communal Housing Code of the Russian Federation, p. 4. 1 part 1 of article 36 of the Housing and Construction Code of the Russian Federation, subparagraph "e" of paragraph 2 of the Rules № 491, the land under the building is the common property of the owners of the premises, if under the building in accordance with parts 2, 3, 5 part 5 of article 16 of the Federal Law of 29.12.2004 № 189-FZ "On enactment of the Housing and Construction Code of the Russian Federation" formed a land plot. Such a plot is transferred into common shared ownership free of charge, and encumbrances are prohibited.
But there are two problems here:
1. alienation should not
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A bankrupt sold real estate at a price 30% below market value - the Supreme Court of the Russian Federation found no violations
The company sold premises to a citizen for 123 million roubles, whereas its market value was 194 million roubles. Almost 2 years later the company was declared bankrupt. The bankruptcy trustee challenged the sale under the Bankruptcy Law. He pointed out that this transaction was intended to harm the property interests of creditors.
The first instance and appeal refused. There was no evidence that the citizen knew about the financial problems of the company and the unlawful purpose of the sale. In addition, his interest in the company's affairs was not confirmed. The buyer had acted prudently and reasonably.
The Cassation disagreed with the courts' conclusions. The sale price differed from the market value by more than 30%. This difference indicates that the buyer behaved in bad faith.
The Supreme Court of the Russian Federation disagreed with the cassation:
- the transaction was settled through a letter of credit, which is not typical for unlawful withdrawal of debtors' property before bankruptcy;
- there was no knowledge of the company's financial problems at the date of sale;
- the transaction was conducted through a realtor;
- a 30% difference cannot indicate that the buyer was aware of the unlawful purpose of the transaction. To qualify, the sale price must differ from market value by a factor of several.
Document: Ruling of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation of 23.12.2021 No. 305-ES21-19707
The company sold premises to a citizen for 123 million roubles, whereas its market value was 194 million roubles. Almost 2 years later the company was declared bankrupt. The bankruptcy trustee challenged the sale under the Bankruptcy Law. He pointed out that this transaction was intended to harm the property interests of creditors.
The first instance and appeal refused. There was no evidence that the citizen knew about the financial problems of the company and the unlawful purpose of the sale. In addition, his interest in the company's affairs was not confirmed. The buyer had acted prudently and reasonably.
The Cassation disagreed with the courts' conclusions. The sale price differed from the market value by more than 30%. This difference indicates that the buyer behaved in bad faith.
The Supreme Court of the Russian Federation disagreed with the cassation:
- the transaction was settled through a letter of credit, which is not typical for unlawful withdrawal of debtors' property before bankruptcy;
- there was no knowledge of the company's financial problems at the date of sale;
- the transaction was conducted through a realtor;
- a 30% difference cannot indicate that the buyer was aware of the unlawful purpose of the transaction. To qualify, the sale price must differ from market value by a factor of several.
Document: Ruling of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation of 23.12.2021 No. 305-ES21-19707
