An individual entrepreneur applying the simplified tax system with the object of taxation "income" carries out entrepreneurial activities by leasing out his own property - non-residential premises. SP plans to sell this non-residential premises. The property has been owned by him for over 3 years. Under what taxation system (STS or personal income tax) will this transaction be subject to if the individual entrepreneur stops using the premises in business activities, terminates all lease agreements and then sells the premises, retaining or not retaining the status of an individual entrepreneur? Is there a statute of limitations in this situation (for example, one year after the termination of the use of the premises in business activities, it is considered the property of an individual and is subject not to the simplified tax system, but to personal income tax)?

After considering the issue, we came to the following conclusion:

If at the time of the transaction, the IP 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 business activities, income is taxed under the simplified tax system. It does not matter whether the object is used at the time of sale in business activities or not and how much time has passed since the use of this property in business activities.

If the IP 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 to generate income at the time of sale or not.

At the same time, the Tax Code of the Russian Federation and the clarifications of the Russian Ministry of Finance do not provide for a "statute of limitations" for the use of property to generate income.

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, sales income 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 (TC RF) are taken into account.

At the same time, any property sold or intended for sale (TC RF) 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 separated. Therefore, for a long time, the question of which activities to take into account when taxing transactions for the sale of IP real estate remained the subject of discussions among specialists and litigation.

Until recently, the opinion of the official bodies was that if the property was used by an individual entrepreneur to carry out entrepreneurial activities, then its sale can also be attributed to the sale of property as part of entrepreneurial activities (Ministry of Finance of Russia dated 02.21. -198, Federal Tax Service of Russia for Moscow dated February 16, 2009 N).

In this case, the income received by an individual entrepreneur from the sale of real estate used by him to carry out entrepreneurial activities, for the taxation of which the simplified tax system is applied, are not subject to personal income tax under the Tax Code of the Russian Federation (Ministry of Finance of Russia dated May 10, 2012 N 03-11-11 / 151, from 03/15/2012 N , from 09/08/2011 N , from 12/05/2011 N , from 04/14/2011 N ).

At the same time, according to the experts of the financial department, in order to account for income from the sale of a property as part of the tax base for tax paid in connection with the application 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, types of economic activities are indicated, in particular, such as "Preparation for the sale of one's own real estate", "Purchase and sale of one's 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 remains whether these conditions must be met simultaneously.

In turn, judges, when considering cases on this issue, in most cases indicate that if the property was used in business activities, then the income from its sale is taxed under the simplified tax system, even if the relevant OKVED codes were not declared during registration of the IP and later (FAS Moscow District dated 10.28.2011 N F05-11288/11 in case N A41-40926/2010, Federal Antimonopoly Service of the North-Western District dated 04.19.2011 N in case N A05-7156/2010).

The Presidium of the Supreme Arbitration Court of the Russian Federation of March 16, 2010 N 14009/09 agreed with this position (see also the Supreme Arbitration Court of the Russian Federation of October 11, 2011 N VAC-12756/11).

Apparently, given the position of the supreme arbitrators, in the latest clarifications, the financial department has somewhat changed its mind.

The Ministry of Finance of Russia explained its position in more detail in a letter dated April 23, 2013 N 03-04-05 / 14057. According to the experts of the department, if the real estate was used in business activities or if the individual entrepreneur during registration declared such activities as the sale of real estate, 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 IP for the purpose of carrying out entrepreneurial activities, including if the IP did not indicate during registration the types of activities related to the sale of its own real estate, 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 IP status

By acquiring and losing the status of an individual entrepreneur, a citizen becomes the subject of certain tax legal relations, respectively, ceasing his activity, 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.

At the same time, as the Ministry of Finance of Russia explains (dated 08.20.2012 N 03-11-11 / 25), according to the Tax Code of the Russian Federation, the tax period for tax paid in connection with the application of the simplified tax system is a calendar year, and the reporting periods are the first quarter, six months and nine months of the calendar year. The tax period for tax paid in connection with the application of the simplified tax system for a taxpayer who has terminated his activity as an individual entrepreneur is the period from the beginning of the calendar year to the date of termination of activities carried out under the simplified tax system.

That is, for example, if from 07/01/2014 a citizen loses the status of an individual entrepreneur, his rights and obligations related to the application of the simplified tax system will cease from that date. From this moment, the taxation of his income will be carried out in accordance with the Tax Code of the Russian Federation "Tax on income of individuals."

When answering such questions, the Ministry of Finance of Russia adheres to the following opinion.

Given that this point of view does not coincide with the position of the financial department, it is likely that the right to exemption from taxation of the transactions in question and the income received will have to be defended in court.

At present, we do not have examples from arbitration practice on this issue.

Prepared answer:

Legal Consulting Service Expert 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.

In accordance with paragraph 1 of Art. 2 of the Civil Code of the Russian Federation, entrepreneurial activity is an independent activity carried out at one's own risk, aimed at systematically obtaining profit from the use of property, the sale of goods, the performance of work or the provision of services by persons registered in this capacity in the manner prescribed by law. A citizen has the right to engage in entrepreneurial activities without forming a legal entity from the moment of state registration as an individual entrepreneur (clause 1, article 23 of the Tax Code of the Russian Federation).

At the same time, the law does not define specific types of activities through which profit can be made (except for the prohibition of illegal activities) (decree of the Fifteenth Arbitration Court of Appeal dated 11.10.2012 N 15AP-11360/2012).

We note right away that civil law does not define the concept of systematic profit making, therefore, the courts make a decision on whether this or that activity is entrepreneurial, in each specific situation.

When registering, the types of activities that are supposed to be carried out are indicated according to the All-Russian Classifier of Types of Economic Activities. Income from activities falling under the type of activity specified by an individual entrepreneur during registration is recognized as income received from entrepreneurial activities (see letter of the Ministry of Finance of Russia dated December 30, 2015 N 03-11-11 / 77903).

Note that in the case when a simplified taxation system is applied to income received from entrepreneurial activities, such income is exempt from taxation by personal income tax on the basis of paragraph 3 of Art. 346.11 of the Tax Code of the Russian Federation.

In accordance with paragraph 1 of Art. 346.15 of the Tax Code of the Russian Federation, taxpayers applying the simplified taxation system, when determining the object of taxation, take into account sales income and non-operating income, determined in accordance with Art. 249 and 250 of the Tax Code of the Russian Federation.

Paragraph 1 of Art. 249 of the Tax Code of the Russian Federation, it is established that revenue from the sale of goods (works, services) both of own production and previously acquired, revenue from the sale of property rights are recognized as income from sales. At the same time, for tax purposes, goods are determined in accordance with paragraph 3 of Art. 38 of the Tax Code of the Russian Federation.

According to paragraph 3 of Art. 38 of the Tax Code of the Russian Federation, any property sold or intended for sale is recognized as a commodity for the purposes of the Tax Code of the Russian Federation.

The Arbitration Court of the North-Western District in its decision dated January 15, 2015 in case N A42-6384 / 2013 noted that the use of a simplified taxation system by an individual who has the status of an individual entrepreneur means that as part of income subject to a single tax under this special tax regime, all income received by the taxpayer in connection with the implementation of entrepreneurial activities should be taken into account.

Thus, if the real estate was used in entrepreneurial activities or if an individual entrepreneur, upon registration, declared such a type of activity as the sale of real estate, then the income from this sale is taken into account as income when determining the tax base for tax paid in connection with the application of the simplified tax systems. Similar conclusions are contained in the letter of the Ministry of Finance of Russia of July 24, 2015 N 03-11-11/42684, of October 24, 2014 N 03-11-11/53905, of July 14, 2014 N 03-11-11/34106.

Accordingly, income received from the sale of real estate that was not used by an individual entrepreneur for the purpose of carrying out entrepreneurial activities, and also, if an individual entrepreneur did not indicate during registration the type of activity related to the sale of real estate, is subject to personal income tax in the manner established by Chapter 23 of the Tax Code of the Russian Federation (letters of the Ministry of Finance of Russia dated 10.06.2015 N 03-11-11 / 33583, dated 01.02.2012 N 03-11-11/21).

So, in particular, when determining the tax base for tax paid in connection with the application of the simplified taxation system, income from the sale of real estate that was rented out is taken into account (see letter of the Ministry of Finance of Russia dated 01.07.2013 N 03-11-11 / 24963).

In the definition of the Supreme Court of the Russian Federation of March 13, 2015 N 309-KG14-7640, it was also concluded that when real estate objects owned by an individual entrepreneur that were used by the taxpayer to carry out entrepreneurial activities (lease), such income is subject to taxation under the simplified taxation system . A similar conclusion is contained in the decision of the Twelfth Arbitration Court of Appeal dated March 11, 2016 in case N A12-47187 / 2015.

In addition, in the decision of the Twelfth Arbitration Court of Appeal dated July 7, 2015 in case N A12-236 / 2015, it was noted that the failure to prove the use of the disputed property in entrepreneurial activities (lease), in the case considered by the court, does not matter for determining the tax liability, since the premises that were sold by the entrepreneur should be recognized as a commodity. The entrepreneur carried out such a type of activity as the purchase and sale of real estate. Calculation of tax on the income of an individual in the course of such activities is unlawful. A similar conclusion is contained in the decision of the Arbitration Court of the Volga District dated November 17, 2015 N Ф06-2388/2015.

Taking into account the type of activity declared by the entrepreneur during registration, the short period of ownership of the sold property, as well as the lack of evidence of the use of apartments for personal (family) needs, the Supreme Arbitration Court of the Russian Federation in its ruling of 06.20. for the purpose of subsequent sale and extraction of systematic profit.

The Federal Antimonopoly Service of the Volga-Vyatka District, in its decision of May 10, 2012 in case N A79-5243 / 2011, also drew attention to the fact that the apartments being purchased were not used by the entrepreneur for personal purposes, that is, for living his family, relatives or improving housing conditions (see also the decision of the Seventeenth Arbitration Court of Appeal dated May 29, 2013 N 17AP-4695/2013-AK).

The Presidium of the Supreme Arbitration Court of the Russian Federation in its resolution of March 16, 2010 N 14009/09, as one of the arguments for the implementation of entrepreneurial activities related to the sale of real estate, indicated that the transaction was settled by depositing funds to the entrepreneur.

That is, the presence in the actions of a citizen of signs of entrepreneurial activity can be evidenced, in particular, by the manufacture or acquisition of property for the purpose of subsequent profit from its use or sale, economic accounting of transactions related to the implementation of transactions, the interconnectedness of all transactions made by a citizen in a certain period of time ( decision of the Twelfth Arbitration Court of Appeal dated May 26, 2015 in case N A12-40055/2014).

Thus, by virtue of the norms of the Tax Code of the Russian Federation, if he switched to a simplified taxation system, choosing income as an object of taxation, then he is obliged to take into account, when determining the tax base for the simplified taxation system, all income received in the framework of entrepreneurial activities, including income received from the sale of previously acquired real estate objects or rights of claim under an agreement on participation in shared construction (decree of the Federal Antimonopoly Service of the Central District dated August 04, 2014 in case N A64-5442 / 2013).

That is, the sale of residential premises not used for personal consumption by an individual cannot be excluded from the activities of an individual entrepreneur and must be included in the base when calculating the tax paid when applying the simplified taxation system (resolution of the Eighteenth Arbitration Court of Appeal dated June 24, 2013 N 18AP-5472 /2013).

It should also be noted that according to the legal position of the Constitutional Court of the Russian Federation, set out in the resolution of December 17, 1996 N 20-P, the property of an individual is not legally divided into property used in business activities and used for personal purposes. Consequently, an entrepreneur can use the property he owns, both in business activities and for his own personal purposes. At the same time, the absence or presence in the contracts of sale of a reference to the status of an individual entrepreneur has no legal significance (decree of the Twelfth Arbitration Court of Appeal dated 02.11.2015 in case N A57-4829 / 2015).

Please note that documents confirming the actual use of property in entrepreneurial activities during the tax period may be contracts with tenants, payment documents indicating receipt of income from the type of entrepreneurial activity, etc. (See also the letter of the Ministry of Finance of Russia dated 01.20.2014 N 03-11-11/1484).

Given the above, we can conclude that the main condition for taxing income received from the sale of real estate with tax paid in connection with the application of the simplified taxation system is the use of this property in business activities, as well as an indication by an individual entrepreneur of the type of activity associated with the sale of real estate property. Such a condition as the acquisition of a real estate object before or after the registration of an individual as an individual entrepreneur is not regulated by tax legislation. At the same time, on the basis of paragraph 7 of Art. 3 of the Tax Code of the Russian Federation, all fatal doubts, contradictions and ambiguities in acts of legislation on taxes and fees are interpreted in favor of the taxpayer (payer of fees).

Thus, we believe that if an individual entrepreneur, during registration, indicated the types of activities related to the sale and lease of his own real estate, then the sale of real estate objects acquired before the registration of this individual as an individual entrepreneur is subject to tax paid in connection with the application simplified taxation system, provided that these real estate objects were used in entrepreneurial activities and in them, or his relatives did not live and were not registered.

At the same time, according to the letter of the Federal Tax Service of Russia for the city of Moscow dated March 10, 2011 N 20-14/4/21822, one of the grounds on which income from the sale of residential real estate does not apply to income from entrepreneurial activity, is a situation where the property was owned by an individual before his registration as an individual entrepreneur and was used by him before the sale for personal use.

Given the existence of such a position, when paying tax in connection with the application of the simplified taxation system, the claims of the tax authority cannot be completely excluded.

In such a situation, we recommend that you apply for written explanations to the Ministry of Finance of Russia or the tax authority at the place of registration (subclauses 1, 2, clause 1, article 21 of the Tax Code of the Russian Federation). The presence of a written explanation will be taken into account in the event of a dispute as a circumstance excluding the fault of the taxpayer (clause 3, clause 1, article 111 of the Tax Code of the Russian Federation).

Costs associated with the acquisition of real estate

Taxpayers who apply the simplified taxation system and have chosen income reduced by the amount of expenses as an object of taxation, when determining the tax base, take into account the expenses provided for in paragraph 1 of Art. 346.16 of the Tax Code of the Russian Federation, subject to their compliance with the criteria specified in paragraph 1 of Art. 252 of the Tax Code of the Russian Federation.

According to paragraph 1 of Art. 252 of the Tax Code of the Russian Federation, for the purposes of taxation, expenses are recognized as reasonable and documented costs (and in the cases provided for in Article 265 of the Tax Code of the Russian Federation, losses) incurred (incurred) by the taxpayer.

Article 346.25 of the Tax Code of the Russian Federation establishes the specifics of calculating the tax base upon the transition of an individual entrepreneur to a simplified taxation system from other taxation regimes and upon his transition from a simplified taxation system to other taxation regimes. The procedure for accounting for expenses incurred by an individual entrepreneur applying the simplified taxation system, before his state registration, according to the norms of Ch. 26.2 of the Tax Code of the Russian Federation is not regulated.

Thus, since the expenses for the acquisition of real estate objects were made by an individual, before registering him as an individual entrepreneur, these expenses as of the date of their payment were not related to doing business and cannot be recognized as meeting the criteria provided for in paragraph 1 of Art. 252 of the Tax Code of the Russian Federation. Accordingly, an individual entrepreneur is not entitled to take into account such expenses when calculating the tax base for tax paid in connection with the application of the simplified system (letter of the Ministry of Finance of Russia dated February 28, 2013 N 03-11-11 / 88).

As noted above, since an individual entrepreneur is a natural person, he owns the property that he uses for commercial purposes and the property used for personal purposes. And although in fact it is not divided, legally the property of the entrepreneur, used by him to make a profit, is separated for the purpose of calculating certain taxes. For example, in the professional tax deduction when calculating personal income tax, you can only include expenses related to property used in business activities. The same situation is with expenses under the simplified tax system and unified agricultural tax.

An individual entrepreneur has to independently determine whether, for tax purposes, the property should be classified as used in entrepreneurial activity or not. But in practice it is quite difficult to do this. For example, a car, a computer may well be used both for personal purposes and for profit. And the costs of such property are the reason for constant disputes between the tax authorities and entrepreneurs. This is especially true for cars and the costs associated with them.

Another problem related to the property of an individual entrepreneur is related to the Family Code. As you know, property acquired during marriage belongs to both spouses (unless otherwise provided by the marriage contract). For property used by a citizen for the purpose of carrying out entrepreneurial activities, there is no exclusion from the joint ownership regime.

Considering that the possession, use and disposal of common property is carried out by mutual consent of the spouses, it should be recognized that a married entrepreneur is somewhat limited in using his property for business purposes. So, in order to dispose of real estate and make transactions that require notarization and (or) registration, an individual entrepreneur needs to obtain a notarized consent of the other spouse. Also, surprises can lie in wait for an entrepreneur during a divorce, because the former spouse has the right to half of all property. And, for example, an individual entrepreneur conducting trading activities in a store may lose half of the goods, half of the store's area, etc.

It should be taken into account that spouses have the right to change the statutory regime of joint ownership (Article 34 of the Family Code) and establish a regime of joint, shared or separate ownership of certain types of property or of all property in its entirety. Thus, the marriage contract can be used to determine the legal regime of the property of an individual entrepreneur, including in matters of his property liability.

Greetings! Commercial real estate is bought and sold in the same way as residential. True, it costs more, and it is more difficult to register the property. In the procedure itself, there are a lot of nuances that you need to know about in advance.

Today we will discuss in detail what constitutes the purchase of commercial real estate by an individual: “pitfalls”, assessment, verification and registration of an object, sales taxes and cost optimization.

Commercial real estate is non-residential facilities that are intended for profit (warehouses, offices, shops).

I will immediately answer “yes” to the question: “Can an individual buy commercial real estate?” According to the law, both a “physicist”, an individual in the status of an individual entrepreneur, and a legal entity can acquire a CN.

When buying a warehouse or business center building for an individual, pay attention to the following:

• If you plan to own an object for less than five years, then at the time of sale you will have to pay tax (13% of the difference between the sale and purchase price).
• In the event of a divorce, the KN will be considered jointly acquired property.
• To purchase an object, the consent of the spouse (spouse) is required.

Important point! To purchase commercial real estate, it is not necessary to register an individual entrepreneur. If you earn on renting non-residential premises, then it is enough to regularly pay the standard personal income tax on income.

Is it possible to take a bank loan for the purchase of KN secured by real estate?

Buying real estate without money, alas, will not work. Even with a bank loan. The down payment is a mandatory condition in any bank!

Here are the current terms of the Commercial Mortgage loan from Absolut Bank.

The loan is issued for the purchase of non-residential (commercial) real estate. Its maximum size is 15 million rubles (if the object is located in Moscow, St. Petersburg or the region). For other regions, the maximum is reduced to 9 million rubles. You can get a “Commercial Mortgage” for a period of 5 to 10 years. The base rate starts at 13.9% per annum.

In Absolut Bank you can count on a maximum of 60% of the value of the object. Want to get more? Offer the bank additional collateral. In this case, he will give you a loan not 60%, but 80% of the value of the object.

Moreover, it is not at all a fact that the premises will be valued at the market price. According to the rules of the bank, out of two values ​​(the seller's price and the estimated price), the bank will choose the smaller one. And do not forget about additional costs: insurance, property valuation, notary services and others.

Three stages of buying commercial real estate

1. Select and evaluate the object

To begin with, we determine the purpose of buying real estate. There are two options:

• For myself (for production, warehouse, office).
• To generate income (for rent or resale).

In the second step, we select the appropriate object. We pay attention to the status of future real estate. KN can be bought in one of two "states":

• With a certificate of ownership (in this case, the seller and the buyer sign a contract of sale).
• No proof of ownership. This may be, for example, a non-capital construction object that has not yet been put into operation. Such real estate is formalized by a co-investment agreement.

Next, we start looking for a place. You can do it yourself (ads on the Web, in newspapers and magazines, participation in auctions and public auctions). But it is better to contact a professional mediator. He will accompany the transaction at any stage:

• It will help you find a property and evaluate it.
• Check the transaction for legal purity and draw up a contract.
• Prepare a package of documents and issue state registration of property rights to the object.

Payment for the services of an intermediary occurs only according to the result of his work!

But even if you are looking for real estate on your own, it is better to entrust its assessment to a licensed appraisal company.

2. Checking the object

What you need to know when buying or selling KN? On January 1, 2017, Federal Law No. 218 “On State Registration of Real Estate” came into force. The changes affected both buyers and sellers.

Previously, there were two bodies in Russia where information about real estate was stored: the Unified State Register of Rights (EGRP) and the State Real Estate Cadastre (GKN).

Since 2017, these two instances have been "merged" into one - the Unified State Register of Real Estate (EGRN). Officials promise that registering and checking real estate is now much easier.

Let me remind you that back in 2016, Russia abandoned paper certificates of ownership. They were completely replaced by extracts from the USRR. Now the Russians need to order extracts from the new register - USRN.

The new body combines two processes that were previously separated: registration of property rights and cadastral registration. Now an extract from the USRN is the only confirmation of the existing ownership of the object. And checking the property when buying real estate comes down to ordering such an extract.

Extracts from the USRN are of several types and contain different information. It is not necessary to order all of them to check commercial real estate. As a rule, the "extract from USRN-1" is enough for the buyer.

What information does it contain?

1. The cadastral number of the object in the database and its cadastral value.
2. Full name of the property, address, area and purpose (“residential” or “non-residential”).
3. Full name of the right holder, type of ownership (for example, “shared ownership”), date of registration of the right and a document confirming ownership (purchase agreement).
4. Presence or absence of restrictions/encumbrances (pledge, arrest). Current claims are also displayed here (if the rights to real estate are disputed by third parties).
5. Graphic plan of the room.

An extract from USRN-1 allows you to:

• Clarify the cadastral value and technical characteristics of the object;
• Check the owners (information from the extract can be verified with the seller's passport data).
• Avoid buying a "problem" asset (the object must be "clean": without encumbrance, without arrest and without claims on it from third parties).

If you wish, you can order other extracts. For example, the EGRN-4 extract contains data on the transfer of ownership (you can trace the entire history of the change of owners of the object).

Any extract can be ordered on the Rosreestr website using the online service. It is enough to know the exact address and cadastral (conditional) number of the object. For the provision of an extract, you need to pay a state duty (700-900 rubles). You can pay for your order online. An electronic statement is provided within three days from the receipt of payment.

The validity of an extract from the USRN is not established by law. By default, it is believed that the more “fresh” the statement, the more reliable it is.

3. We conclude a contract for the sale of non-residential premises

Before concluding a contract of sale, experts recommend signing a preliminary contract. Such a paper guarantees compliance with the agreements by both parties before signing the main document.

At the "intermediate" stage, check:

• Powers of the seller (or his representative).
• Legal purity of the transaction:
  • Whether the object is the subject of a dispute between the previous and current owner.
  • Were all previous transactions on the object legal?
  • Are there any encumbrances on the property (pledge, arrest).

If everything is OK, then the buyer and seller sign a contract of sale. The transfer of the object to the new owner is confirmed by the deed of transfer.

What should be written in the contract of sale of non-residential premises? Detailed description of the object, calculation procedure and payment terms. The price at the conclusion of the contract is usually indicated in dollars or euros, and the ruble equivalent is put next to it. And be sure to check on the basis of what documents the seller owns, disposes and uses the object.

You also need to make sure that the seller did not make illegal reconstructions and redevelopments in the premises. Otherwise, the property will be difficult to rent out. Or the buyer will have to draw up redevelopment "retroactively" and at his own expense. If you are buying a stand-alone building, make sure that the land underneath also belongs to the seller.

How to register the property of the purchased object? Submit data to the USRN, wait and get an extract.

Can commercial property be converted to residential?

Theoretically, you can. The main thing is that two conditions are met:

1. You are the owner of the object. And there are no burdens on it.
2. The property complies with the requirements for residential premises. Or you have the opportunity to bring the object into a "residential" form.

Step-by-step instruction

Step #1. Prepare a project for redevelopment or reorganization of the facility.

According to the law, a lot of requirements are imposed on residential facilities: fire-fighting, hygienic and sanitary-epidemiological (ceiling height, natural lighting, ventilation, sound insulation, etc.). The reconstruction project can be done by yourself or ordered by specialists.

Step #2. Collect documents:

• Passport of the owner of the object.
• Application for the transfer of non-residential premises to residential.
• Legal documents for the object.
• The conclusion of the authorities that the premises meet the requirements of the residential premises (or it can be brought to them).

Step #3. Apply to the authorized body for obtaining public services.

In each region, its own body is responsible for the transfer of non-residential premises to residential. In Moscow, for example, this is done by the City Property Department. You can submit documents in person (through the MFC) or through an electronic form.

The decision is made within 48 days. After that, the owner is sent a response:

• Positive (the room can be converted to residential).
• Negative. You can defend your rights in court within three months.

Step number 4. Make redevelopment and receive an act of the acceptance committee.

Step number 5. Obtain a technical redevelopment plan from a cadastral engineer.

The finished technical plan is submitted to Rosreestr for cadastral registration of the technical characteristics of the premises.

Step number 6. Wait until the information is entered into the USRN and receive an extract

How to calculate the tax on the sale of commercial real estate?

Tax for individuals

Previously, if an individual owned real estate for more than three years, then the income from its sale was not taxed. But from January 1, 2016, the period of ownership of real estate “without tax” in Russia was increased from three years to five.

Simply put. If you bought a property before 2016, you can sell it tax-free after three years. And if the purchase occurred after January 1, 2016, then wait until the five years expire.

The real estate tax itself is 13% (it is paid from the difference between the sale price and the purchase price). If you do not have documents confirming the purchase of real estate, you will have to pay a tax of 13% not on the difference, but on the entire amount of the sale!

Example. Two years ago Oleg bought a warehouse for 10 million rubles and sold it for 11 million rubles.

1. He has the paperwork for the purchase. He will pay tax on 1 million rubles (11 million - 10 million). 13% of 1 million rubles = 130 thousand rubles.
2. The documents for the purchase were burned in a fire. Oleg will pay 13% personal income tax on the total amount of the sale (13% of 11 million rubles = 1 million 430 thousand rubles).

There is one more nuance - since 2016, Russia has switched to a cadastral taxation base. Let's say that the cadastral value has already been calculated for your object. The price according to the cadastre is set only by state bodies (after which the cost is entered into the State Register database).

If the cadastral valuation multiplied by 0.7 (adjustment coefficient) is higher than the sale price, then it will be considered the basis for calculating the tax. But this condition applies only to objects purchased after January 1, 2016!

Example. In 2016 Andrey bought an office for 4 million rubles. A year later, he sold it for 6 million. But government agencies estimated the cadastral value of the office at 10 million rubles. Even taking into account the correction factor (0.7 * 10 million rubles), 7 million is more than 6 million. Therefore, to calculate the tax, Andrei will have to take the cadastral, not the sale value.

Let's calculate the amount of tax. 7 million (according to the cadastre) - 4 million (purchase price) = 3 million rubles. 13% of 3 million rubles = 390 thousand rubles.

Tax for IP

The tax on the sale of IP property will depend on whether that object was used in business or not.

If you didn’t use it, then the tax payment procedure will be the same as for an individual (I described it in detail above).

If you used it (for example, the rental rate for the tenant was calculated), then the tax will have to be paid differently. Even if 10 years have passed between the moment of purchase and sale.

Tax amount:

• 13% if the IP works on a common system. Plus, VAT will also be added here (18% of income).
• 6% or 15% if the individual entrepreneur works on a simplified scheme (the tax base will be “income” or “income minus expenses”, respectively).

Tax for a legal entity

The legal status of the buyer reduces the risk of losing property in the event of a divorce or litigation. And the risk of seizure of real estate in disputable situations is also seriously reduced.

When real estate is sold by a legal entity, two taxes are levied on it:

• VAT (18%). The seller issues an invoice to the buyer, where the VAT figure is indicated separately from the value of the property. The buyer pays the tax to the legal entity, and he transfers it to the budget;
• Income tax (20% of the difference between the sale price and the residual book value of the object).

If the legal entity is on the simplified tax system, then when selling, you need to pay 6% (of the sale amount) or 15% (of the difference between the sale amount and the residual book value).

Types of real estate fraud

double sale

The owner can sell the same object to two or three buyers.

encumbrances

At the time of the sale of real estate, it may be under an encumbrance (for example, pledged to a bank). The purchase of such an object is considered illegal. As a result, the buyer will lose both the object and the money that he paid for it.

Both the one and the other fraudulent scheme is easily calculated from the extract from the USRN.

How to optimize the cost of buying commercial real estate?

Participate in promotional offers from the developer

From time to time, large developers offer buyers discounts and promotions. Such "attractions of generosity" are more often arranged during calm seasons in the real estate market.

Popular formats: discounts as a percentage of the initial price, discounts in absolute terms, gifts (for example, free parking). Usually promotions are valid for a limited period of time and apply to specific objects.

Buy objects at the initial stage of construction

The purchase and sale of a new building at the initial stage of construction will cost 20-30% cheaper than after the facility is put into operation. But it is obvious that the risks of such an investment will be much higher.

Converting an apartment into a commercial one

Another way to reduce the cost of buying commercial real estate is to buy an apartment on the ground floor and arrange for the transfer of residential premises to non-residential.

Personal opinion

Is it profitable to buy commercial real estate as an individual? Yes, it's easier and cheaper in terms of taxation. So far, the most profitable purchase option is when you are registered as an individual entrepreneur on the simplified tax system and are not going to sell the property in the next five years.

What are the pitfalls of buying commercial real estate do you know?

What is the best way to sell commercial real estate if the seller is an individual entrepreneur

IP nuances

One of the main features of an individual entrepreneur is the inability to clearly distinguish between property used in business and in the everyday life of a citizen. And this is where the difficulty arises with the qualification of the income received from the sale of property. If income is received from entrepreneurial activity, then in accordance with Articles 346.15 of the current Tax Code of the Russian Federation, it should be included in the tax base under the simplified tax system. If the income from the sale of property is the personal income of a citizen, then it is subject to personal income tax according to the rules established by Chapter 23 of the Tax Code of the Russian Federation. At the same time, the citizen himself decides whether to use the money received from the sale of property for personal needs or to put it into work. Experts recommend qualifying income from the sale of property owned by an entrepreneur for more than three years as personal income if he applies a simplified taxation regime for the following reasons:

1. If an entrepreneur applies the simplified tax system with the “income” object, then he will have to pay a tax at a rate of 6% on all income from the sale, excluding the costs of acquiring real estate.
2. If an individual entrepreneur uses the “income minus expenses” object, then in many cases he will have to take into account not only the income received from the sale of property that was part of fixed assets, but also adjust the previously recorded expenses in accordance with the rules of Article 346.16 of the Tax Code of the Russian Federation.
3. If the income received by an entrepreneur from the sale of property is considered personal income, then it is subject to personal income tax, from which the sale of property owned by the seller for three years or more is exempted.

In view of the foregoing, for an individual, when selling property owned for more than three years, at a cost higher than the purchase price or higher than its residual value, the best option is to declare the income received from the sale of real estate as personal income not related to entrepreneurial activity. Only in this case, the income of an entrepreneur applying the simplified tax system will not be taxed, and also will not have to pay personal income tax by virtue of clause 17.1 of article 217 of the Tax Code of the Russian Federation. However, in the practice of applying this rule, there are various situations that need to be considered.

If the property is sold

The most common situation is the sale of real estate by an individual entrepreneur while doing business, when he used the "simplified" system and acquired a property in order to generate income from its use, for example, from renting out real estate. In the future, the need to use real estate for some reason has disappeared and the entrepreneur decides to sell it. In this case, to qualify the income received from the sale of real estate, the following points must be taken into account:

• How and under what conditions this property was acquired into the property of the seller: as a result of the conclusion of an agreement on the alienation of real estate, inheritance, donation or construction;
• Have the costs of acquiring real estate been taken into account in the tax base under the simplified tax system;
• Who acted as the seller of real estate - an individual or a legal entity;
• Has the property being sold been used for business purposes?

Acquisition or sale of real estate by an individual as an individual entrepreneur

If the seller or buyer of real estate is a person registered as an individual entrepreneur, then it does not matter when it was acquired, before the citizen passes state registration as an individual entrepreneur or after. But in the event of a dispute between the individual entrepreneur and tax officials, it is preferable that the property be purchased before state registration as an individual entrepreneur. However, in any case, when acquiring real estate under one of the types of contracts, it will be the individual and his passport data that will be indicated as a party, which are entered in the Unified State Register of Rights to Real Estate, since an individual entrepreneur is not a subject of legal relations. An individual entrepreneur, of course, can indicate his status in the text of the contract if he intends to purchase or sell real estate for the purpose of entrepreneurial activity, but in this case the income received will be qualified as entrepreneurial. This means that it will have to be taken into account in the tax base for tax under the simplified taxation system.

If the costs are included in the simplified tax system

The next basis for qualifying income received from the sale of real estate as entrepreneurial income is the accounting for purchase costs when using the "simplified". Since the costs of acquiring real estate are treated as business expenses, the income received from the sale of such real estate should also be considered as business income. And from the point of view of the tax authorities, income received from the sale of real estate used in business activities will be taxed as business income.

If the property is used systematically

Employees of the tax authorities, despite the opposite position of the Ministry of Finance of the Russian Federation, continue to consider the use of real estate by an individual entrepreneur for the purpose of making a profit as a sufficient basis for qualifying the income received by an individual entrepreneur from its sale as entrepreneurial. However, this position is not justified, since the derivation of income from the use of property must be distinguished from the income received from its sale. What is important here is systematicity in making a profit, which should be understood as deriving income two or more times, which means that a one-time sale of real estate cannot be considered as systematic and entrepreneurial. Judicial practice also speaks of systematicity, which, along with the status in which an individual acted at the time of the sale of real estate, also takes into account the regularity of income generation.

If the property is sold after the end of business

If real estate was used in business activities that were completed before its sale, then the income received must be qualified taking into account the following grounds:

If the expenses were taken into account under the simplified tax system

If the value of the property acquired by the IP was taken into account in expenses before the entrepreneur deregistered with the IFTS and decided to sell it, then he will not have to pay tax, since he lost his status and ceased to apply the simplified taxation regime. At the same time, the issue of applying the norms of paragraph 17 of Article 217 of the Tax Code of the Russian Federation, if the seller owned real estate for three or more years, thereby avoiding paying tax, is resolved positively. On the one hand, this rule does not apply to income received from the sale of property used in entrepreneurial activities. On the other hand, at the time of the conclusion of the contract for the alienation of real estate, the seller lost the status of an individual entrepreneur and did not carry out entrepreneurial activities. This means that the property sold is not property used in business activities. Employees of the tax authorities may not agree with such provisions, therefore, possible disagreements that have arisen regarding the collection of arrears from the entire sale price of property, penalties and fines for personal income tax must be settled in court.

If expenses were not written off under the simplified tax system

In cases where the acquisition costs were not written off under the simplified tax system, then the tax authorities have no reason to qualify such income of an individual as entrepreneurial. If the property has been owned by a person for three years or more, then you will not have to pay personal income tax on income received from the sale.

Family Code to help

A rather difficult situation is the sale of property used in the process of entrepreneurial activity, when the purchase costs were taken into account during the “simplification”, but the entrepreneur does not have the opportunity to close the IP before the sale. However, it is possible to find a way out of such situations and use the norms of paragraph 17.1 of Article 217 of the Tax Code of the Russian Federation with the help of the current Family Code of the Russian Federation in relation to property that the seller has owned for three or more years. So, an individual entrepreneur can conclude an agreement on the division of property with his spouse, which will state something like the following: “this or that property acquired during the marriage is the property of the second spouse, regardless of who was a party to the transaction, associated with its purchase. In addition, the contract should also include a provision that all income received from the use of property will belong exclusively to the spouse who is registered as an entrepreneur. Thus, the income received from the commercial use of the property will be separated from the income received during its sale. An agreement on the division of property between spouses must be drawn up in writing and notarized. It is very convenient that a marriage contract (agreement) can be concluded at any time, that is, before marriage or in the process of family life. Another way that allows you to take advantage of the benefits of Article 217 of the Tax Code of the Russian Federation is the registration of ownership of a real estate object for spouses who do not have the status of an individual entrepreneur. The spouse, who is not an individual entrepreneur, can conclude a contract for the sale of real estate. But with all the beauty and simplicity of these “family” methods, no lawyer can guarantee their direct application, since there are many nuances here.