We issue a property tax deduction for joint property of spouses

Spouses can acquire real estate (apartments, dachas, land) during marriage as joint property.

With this type of ownership, there is no concept of a “property share”, since there is no allocation of shares; the entire property belongs entirely to all owners.

On what grounds can a deduction be paid and what amount will it be?

Spouses can claim a refund of the spent funds not only if they bought an apartment with their own money, but even if they took out a mortgage for this. Or, as an option, the couple combined the listed sources and with their help bought an apartment.

There are only two types of refunds that a married couple can claim:

1. Compensation for losses on the costs of purchasing living space after the fact.
2. Compensation for losses on closing interest on the mortgage, if the living space was purchased on credit.

The actual costs when purchasing living space include not only the money that was paid to the seller himself during the transaction, but also the costs of confirming documents:

1. Drawing up estimates or projects for home decoration.
2. Costs of materials for repairs.
3. Costs for repair work.

Tax withholding may apply not only to the actual purchase and sale agreement, but also to the act of participation in the share. The law provides that in order to obtain a deduction, you simply need to obtain the rights to the living space, which is located in a certain house under construction.

But there are also other mandatory options under which deductions may be paid:

1. Living space is purchased within the Russian Federation.
2. The transaction was not carried out between persons who are related. In the situation under review, for such transactions as the conclusion of an agreement between a married couple, a family and its children, sisters and brothers, guardians and persons under their care, as well as between persons, if one of them is subordinate to another person, according to position by position. Also, a deduction for living space is not provided if it is purchased from an organization in which the buyer holds a management position or has a share of 25 or 50%.
3. The funds used for the purchase were borrowed or personal funds. Financial costs for the purchase should not be taken from maternity capital, social subsidies, or other types of sources of funds.
4. The applicant for deduction has living space for which he has registered his rights. In the event that the registration of property occurs in the name of a child or children who have not yet reached the age of majority, then the applicant for tax withholding is obliged to certify with official documents the fact that he is in fact the father or mother of the child.
5. An applicant for a deduction must be a person who pays income taxes. This condition is mandatory, since the deduction is provided only for personal income tax, which was previously paid or will only be paid.

Tax lien applicants must fulfill the following obligations:

1. Collect and provide documents that can confirm the existence of the right to a deduction - an apartment contract, a loan contract, all papers on payments and expenses incurred.
2. Filling out and submitting the 3-NDFL declaration. It is necessary when exercising the right by contacting tax authorities.
3. Write and submit applications for benefits to your boss, the tax agent.

If the withholding amount has not been fully used, then its entire available balance is automatically transferred one year forward until it is completely exhausted. The remainder of the deduction can be used for the purchase or construction of other living space, in addition to the deduction that was provided for the return of funds paid to repay loan interest.

Features of obtaining a property tax deduction when purchasing a home with a mortgage

A separate benefit is provided for mortgage interest up to RUB 3,000,000. Until January 1, 2014, an agreement on the distribution of shares drawn up for the purchase of an apartment was automatically applied to it. From this date, a separate agreement can be submitted for mortgage interest. In accordance with the opinion of the Ministry of Finance, set out in letter No. 03-04-05/63984 dated November 6, 2015, the spouse has the right to change this agreement annually.

Legal documents

• Article 220 of the Tax Code of the Russian Federation. Property tax deductions
• Article 220 of the Tax Code of the Russian Federation. Property tax deductions

Approval of the right to living space and types of tax deduction

If a married couple acquires real estate, then they are given the right to independently decide on how to register the right to their property. The Tax Code of the Russian Federation determines that tax withholding depends on the rights the applicant has to real estate. This definition gives each of the married couple the right to receive their own personal deduction, under specific conditions and within certain limits.

There are only four cases that can play an important role in obtaining tax withholding that a family is planning to file:

1. Living space in the share.
2. Common living space.
3. The living space is personal.
4. Shared living space with children.

Our lawyers know the answer to your question

Free legal advice by phone: in Moscow and the Moscow region, in St. Petersburg, as well as throughout Russia
As a rule, in most cases a married couple gives preference to sharing the deduction. It depends on the price of living space and other costs. Reach the highest point in tax withholding - 4 million. rubles, each of which accounts for exactly 2 million rubles per family, is possible if the deduction is divided in a ratio of half to half. If, for example, you divide the deduction at a ratio of 100 to 0, then one of the family will be able to present grounds for payment of 2 million rubles, but some of them will receive absolutely nothing. Why does this happen? Although the definition of the concept of “deduction section” is most often used in practice, in fact, the deduction section is carried out taking into account the degree of costs that give the right to the deduction itself. Of course, in order to claim the highest deduction, all expenses for living space must be equal to 4 million rubles. or exceeded this amount, and at the same time both the husband and wife should be able to present their right to reimbursement of expenses not exceeding 2 million rubles.

It is very important that the married couple discuss among themselves the basis on which calculations the deduction will be made. Adhering to the Family Code of the Russian Federation, all monetary expenses of both spouses are common expenses, and when dividing them, it is necessary to use a ratio of 50 to 50. And if the married couple has not previously entered into any formal agreement between themselves, then when dividing the deduction, the condition will be applied, provided for by the Family Code.

In order to have the opportunity to withhold tax on one of the married persons, or both of them at once within the personal limit, they must provide the appropriate:

1. The amount of personal expenses and loan interest for the purchase of living space. Deductions do not add up and a married couple can claim the right to compensation in the amount of 13% to the maximum.
2. The advantage of receiving tax withholding, and the amount of tax withholding limit available to each of the married couple.
3. Monetary benefit when choosing any option for purchasing benefits, which include various prospects, especially if the existing right to deduction can be transferred to the next year or to another living space.

Registration of property deductions when purchasing housing in common joint ownership

In accordance with Art. 220 of the Tax Code of the Russian Federation, the tax on the sale of an apartment jointly owned by spouses is paid taking into account the property tax deduction - 1,000,000 rubles, distributed by agreement of the parties (if the property was purchased less than 5 years ago). This is another benefit arising from legal relations regarding the obligation to pay tax upon receipt of income.

After the purchase, a property tax deduction for an apartment jointly owned by spouses is provided by joint agreement. The general rule is to distribute benefits in equal shares, 50 to 50. When drawing up an application, it is worth considering the following:

• the maximum possible amount to be received is 260,000 rubles (13% of 2,000,000 of the deductible amount);
• the application is submitted only once, making changes to it is not allowed (letter of the Ministry of Finance dated May 18, 2012 No. 03-04-05/7-647);
• the size of the income of the husband and wife and the speed of return of money from salary - the deduction can be transferred within 2,000,000 rubles;
• availability of taxable income (if one spouse does not have it, it is worth writing a statement of 100 to 0 in favor of the other).

Withholding when purchasing living space of a married couple into a single shared ownership

The most elementary situation in which it is possible to determine the rights of each person of a married couple to withhold tax is a single shared ownership of living space. Changes that were made after the onset of 2014 added serious adjustments compared to those that functioned before its onset. To this day, a married couple may not have been concerned at all about who was owed the deduction and how much. Previously, they had to rely in this matter on the size of the share of living space. But, as soon as the changes affected the Tax Code of the Russian Federation, and certain clarifications appeared in it from the Ministry of Finance of the Russian Federation, the spouses now had to take into account not the size of the share itself, but the financial costs that each of them incurred, and which were documented.

After the onset of 2014, we can distinguish only two situations regarding the division of tax deductions and their amounts that a married couple can create or agree upon among themselves:

1. In the first situation, each of the married couple has the right to distribute expenses at their own discretion, so that each of them is entitled to a deduction of the amount that they agree upon among themselves. The main condition in such a situation is visual confirmation of who and exactly how much expenses were incurred, or, alternatively, the spouses can agree that when presenting their payment evidence to receive tax deductions, they do not overlap with each other.

1. In the second situation, one of the married couple will claim tax withholding, since it was he who took upon himself all the expenses or they were carried out from one of their total amounts, which cannot be divided or the spouses themselves simply do not want to divide it.

Which situation to prefer is decided by the married couple independently. For example, if someone in the family is not employed, then it is most logical, of course, to grant the right to withhold tax to someone who does work. But if both husband and wife work, then before deciding who will be entitled to the tax withholding, it is necessary to determine their joint future intentions for purchasing housing and take into account various other aspects of this issue.

Tax deduction in case of registration of living space for one representative of a married couple.

The fact that the purchased apartment is registered for only one member of the family does not greatly affect the possibility of acquiring a tax withholding. Certain differences can only be observed during the procedure for obtaining a tax withholding:

1. It is up to the spouses to determine how to divide up the right to receive tax withholding.
2. If a married couple has decided that the 100% deduction will be received by the one in whose name the living space is registered, then there is no need to write an application to the INFS.
3. If the husband and wife decide to give preference to such a distribution of shares as half and half, then in this case, they will need to write a proper appeal to the INFS.

How to get a property deduction if the housing is in common shared ownership

According to the letter of the Ministry of Finance dated June 29, 2015 No. 03-04-05/37360, the property tax deduction for shared property of spouses is distributed arbitrarily or depending on the amount of contributions towards payment:

• according to confirmed expenses. A husband and wife bought a house for 3,000,000 rubles, paid 990,000 (13) and 2,100,000 (2/3) for it. The distribution was declared to the tax authority in accordance with the payment: the wife will be returned 128,000 rubles, and the husband 260,000 from 2,000,000, since this is the limit;
• according to a joint application, that is, the apartment was paid for in some proportions, but others were declared. For example, housing was purchased for 4,000,000 rubles with payment of 75% and 25%, it is more profitable to distribute the benefit equally according to the application, then both will meet the limit and receive 260,000 and only 520,000 per family;
• by agreement, even if the housing is paid in full by one spouse. For example, when one husband pays for an apartment for 5,000,000 rubles, the wife also receives the right to a benefit if she writes an application. If the husband does not receive taxable income, the wife has the right to write an application for the benefit.

For apartments purchased since 2014, it has become possible to apply for a property tax deduction for a spouse in case of shared ownership, if he does not have income subject to personal income tax.

ConsultantPlus experts looked at how to get a tax deduction: how much money can be returned, what documents and how to fill out, where to apply. We have taken into account all the latest changes. Use these instructions for free.

Tax deduction when registering living space in common ownership with children

As soon as a married couple acquires living space, many of them decide to include their children among the owners. The living space can be either shared or divided into parts. Before 2014, when the question of who could claim the right to withhold tax related specifically to parts of living space in common ownership and their size, it was simply impossible to obtain withholding for children. This is even provided that, for certain reasons, all costs for the purchase of living space were borne directly by the parents. But in 2021, the changes are dramatic: the share belonging to the child is taken into account in the calculation, and a married couple or husband or wife separately has the right to increase their withholdings. And after the parents agree on the distribution of part of the child’s living space, they need to draw up an appeal about the decision made and take it to the INFS.

Considering the purpose of obtaining tax withholding of the share of a child or children, the following should be taken into account:

1. Parents can exercise their personal right to withhold tax only within the limits of their right and within the limits established for them. The part belonging to the child only allows the removal of certain restrictions that do not allow parents to use their 2 million rubles. for anyone or 4 million rubles. In total.
2. The fact that the parents used part of the living space belonging to the child does not deprive him of the opportunity, if necessary, to resort to his personal deduction. Even if the living space is registered specifically in the name of the child or children themselves, the parents can claim their tax deduction in full, but provided that they did not incur cash costs for the purchase of the living space