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.

Purchasing a home while married

As a general rule, everything purchased during marriage is considered joint property of the spouses. There are two types of such property:

• joint,
• general share.

If a husband and wife bought an apartment as joint property, they jointly use and manage the property without allocating a share to each of them. Unless otherwise provided by law or contract, they are presumed to own equal shares.

The second regime assumes that the shares of the spouses are clearly defined. Moreover, they can be either the same or different.

What does the law say?

The generalized property of spouses is the property that they became the owners of directly in their legal marriage. Here we are talking about the property that spouses use together without separating their separate shares.
Although it is worth noting that upon completion of the agreement, real estate can be registered only in the name of one of the family. But this option will not qualify for the possibility of obtaining a property deduction for joint ownership.

To be able to apply such a right and acquire a tax refund, the property must be joint or have a shared form.

Features of tax refund for housing purchased before 2014

As noted earlier, changes were made to tax legislation in 2014. If housing was purchased before January 1, 2014 in common shared ownership, the tax discount is distributed in accordance with the established shares.

Many people are interested in whether a husband can return apartment taxes for his wife. According to the law in force at that time, neither party can refuse its share or receive a deduction for another person. Everything is determined within the spouse's share.

If the property was acquired as a joint property, then, regardless of who incurred the expenses, the couple is considered to have participated in them jointly.

Therefore, answering the question of which spouse can receive a tax deduction, we can safely say - any of them. By default, it is distributed in equal shares, but the couple can, by agreement, distribute it in any proportion.

If the apartment is registered in the name of the second spouse

A situation is possible when the payment was made by one of the spouses, who then took ownership of the property, and the other spouse applies for the deduction. In this case, a deduction must also be provided. The grounds are the same as those stated above for applying on behalf of both spouses.

The possibility of receiving a deduction for real estate registered in the name of the other spouse was confirmed by the Ministry of Finance in a letter dated April 25, 2014 No. 03-04-05/19540. The agency considered a situation where a spouse had previously exercised his right to a tax refund by purchasing a house and plans to purchase an apartment in his own name. The Ministry of Finance confirmed that in such a situation the spouse will have the right to receive a tax deduction for this apartment based on a written application from the spouses.

However, this opportunity is available only to those who are in an officially registered marriage. Living together (the so-called “civil marriage”) does not give the right to claim a deduction for the spouse’s apartment. This was indicated by the Russian Ministry of Finance in Letter dated March 14, 2012 No. 03-04-05/7-301.

The opportunity to receive a deduction for a spouse’s apartment remains even if the property was purchased with a mortgage. For example, if the husband took out a mortgage and made payments under the loan agreement, the wife can receive a tax deduction on both the principal cost of the apartment and the interest paid. Not only acquired property, but also debts are considered common to spouses. Therefore, a mortgage issued during marriage and payments on it are legally considered to be made jointly.

Grounds for receiving a deduction and its possible amount

The right to a discount arises depending on what funds were used to purchase the property: personal or credit. Based on this, the maximum amount allowed is determined:

• actual expenses incurred, but not more than 2 million rubles for each person;
• actual expenses incurred, but not more than 3 million rubles when repaying interest on the loan.

All expenses incurred for the apartment must be documented.

A personal income tax refund when spouses purchase an apartment in 2021 is possible if the following requirements are met:

• location of the purchased housing in Russia;
• lack of characteristics of a transaction in which the parties are interdependent persons;
• acquisition of property using own or borrowed funds;
• the person has a registered right of ownership or participation in shared construction;
• the person is an income tax payer.

Many are also interested in how spouses can get a double tax deduction for the purchase of an apartment. According to the law, the property deduction for the purchase of an apartment can only be used once. If the maximum amount is not exhausted, the remainder is used for other purposes.

Spouses have the right to apply for a double tax deduction, regardless of which of them is the owner of the purchase. The main condition is official employment, as well as the absence of a previously issued such right.

Legal regime of common family property

There are various legal regimes for the property assets of spouses, which depend both on the methods of their acquisition and on the will of the partners. The legal status of the spouses’ real estate will be determined taking into account the following circumstances:

• joint ownership – arises as a general rule in all cases of acquisition of real estate at the expense of the family’s common funds;
• shared form of ownership - arises if the partners have determined the distribution of shares in common law;
• personal property of each partner - is established for apartments that belonged to citizens during the premarital period, or acquired through gratuitous transactions after the creation of a family;
• separate property - determined by agreement of the spouses, fixed in the terms of the marriage contract.

In addition, when making a transaction to purchase real estate, ownership can be registered only in the name of one of the spouses, however, in this case, personal or separate forms of ownership do not arise.

To exercise the right to a property deduction, apartments acquired under a paid purchase and sale transaction are used. Therefore, when determining the conditions for providing a tax benefit, only joint and shared forms of ownership will be used.

Features of calculating tax deductions depending on property status

We have already figured out whether both spouses can receive a tax deduction when buying an apartment. It was also mentioned that it directly depends on the type of property in which the housing is located.

In most cases, the couple prefers to split the discount. To take advantage of the maximum possible limit (2 million each), you need to make a 50/50 split.

If a husband and wife decide that one of them will receive 100% and the other nothing, they will not be able to count on more than 2 million.

This point should be taken into account by those who are interested in whether it is possible to obtain a tax deduction when purchasing an apartment for both spouses.

Deduction for the purchase of housing in common joint ownership

Most often, spouses in our country own joint property, without allocating shares, since they do not think about dividing property before the dissolution of the marriage relationship.

All expenses are by default recognized as common, regardless of who actually incurred them. As a result, many are interested in how to get a deduction if the apartment is in common joint ownership.

It is important to correctly distribute the ratio according to which the spouses will receive a deduction, because after writing the application, the conditions cannot be changed.

It is more profitable to choose the 50/50 option, but after analyzing the situation, perhaps some will come to the conclusion that a different ratio will be more profitable for them.

To better understand the situation, let's look at an example. Tax deductions for the purchase of an apartment by spouses as joint property in 2021 will occur as follows.

The Ivanov family purchased an apartment worth 5 million rubles in 2021. The husband earned 3 million rubles this year, and his wife earned 2.5 million rubles. The couple decided to take a 50/50 deduction. Therefore, both will receive a deduction of 2 million rubles. × 13% = 260 thousand rubles.

Deduction when purchasing housing in common shared ownership

Many citizens also ask how to return a tax deduction for the purchase of an apartment in shared ownership, because common shared ownership is a common type of property ownership among married couples.

After January 1, 2014, significant changes occurred in the calculation of tax deductions for this category of cases.

If previously the size of the deduction directly depended on the share of each person, today the property tax deduction for common shared ownership is calculated based on the actual expenses incurred.

In this case, the couple can independently distribute expenses as they see fit. The main thing is that this is confirmed by payment documents.

If one of the couple does not work, it is worth documenting the expenses for the working spouse.

If the property is shared, let's look at how the tax is returned using an example. The Ivanovs purchased an apartment in shared ownership in 2021, each of them owns ½ part. During the current year, the husband earned 2.5 million rubles, and his wife did not work. In this case, the husband will be able to count on 2 million rubles. × 13% = 260 thousand rubles, and his wife will receive a tax deduction only when she gets a job.

In accordance with the law, it is also possible to return personal income tax on mortgage interest in shared ownership.

Deduction when purchasing a home in joint ownership with children

If the living space was purchased by both spouses and is registered as joint ownership together with a minor child/children, the parents or one of them can receive a tax deduction for the children’s shares.

In addition, one of the parents or both spouses has the right to increase the amount of their deduction at the expense of the minor’s share. The spouses themselves decide what to do in this case.

Common lobe

Co-owners have the right to establish, according to the actual contribution of each participant, the size of their share in the common property. If the agreement between the owners does not provide for other conditions, and it is impossible to establish proportionate investments, the shares are equal. If controversial issues arise, the amount is established by the judicial authorities in accordance with the Legislation of the Russian Federation.

A shared owner who makes changes (at the expense of personal expenses) that contribute to the improvement of the common property has the right to increase his share or, if the improvements made are separable, to register them as private property, provided that no other conditions are specified in the agreement between the owners.

Important! The allocated share in common property does not mean a separate part of a certain object, but a part in the right to own it. The property itself is united and not divided in kind.

If one of the co-owners does not agree with the terms of the division, is not satisfied with the method or due to other circumstances, he has the right to separate his part in kind. If it is impossible or unacceptable by law to do this without causing any damage to the property, the co-owner has the right to demand payment of the monetary value of his part by other participants in the common property. Financial compensation for the natural allocation of a share is permitted by law only with the consent of the shareholder, but if the part is insignificant and it is impossible to separate it in kind or the co-owner does not actually use the common property, the court has the right to oblige other shareholders to pay compensation without his consent. After the co-owner receives the funds, his right to a share in the common property is lost and distributed among the shareholders who participated in the redemption.

Tax deduction procedure

Let's figure out how to make a deduction for spouses for one apartment. It is worth noting that the entire accrued amount is not paid instantly at one time. How much was withheld from tax this year will be returned.

Where to go

All documents should be submitted to the district tax office at your place of residence. The address of the purchased property, as well as the actual place of residence, do not matter.

There are several ways to submit documents:

• bring it in person to the department;
• send by mail;
• submit online.

A tax deduction for property in your personal account is possible at.

Required documents

Along with the application for a deduction, the following package of documents must be submitted to the tax office:

• applicants' passports;
• certificate of registration of property rights or an extract from the Unified State Register of Real Estate;
• income certificate form 2 personal income tax;
• purchase and sale agreement or equity participation agreement;
• act of transfer of shared construction object;
• declaration 3-NDFL;
• documents confirming the fact of transfer of money.

The declaration of form 3-NDFL must be submitted in the original. In order to fill out the document correctly, you can seek help from the explanations. Section 7 of VAT on the sale of an apartment is described in detail here.

Sale of real estate shares

To sell a share in an apartment or private house that is in common ownership, the same legal provisions are observed as when selling part of any other common property. Buying 1/5 of an apartment means acquiring an equal share of the ownership of this home. This is not about buying a specific room with a designated living space, as in communal apartments or dormitories, where the rooms are individual objects separated from the general volume. A 1/5 share offered for purchase, for example, may be part of both a one-room and a three-room residential space, and the rights to use and dispose of it in this case will be the same for the five owners.

And the right to be the first to purchase a share from co-owners of common housing is also fully valid. A portion can be sold to unauthorized persons no earlier than a month after the shareholders have been notified in writing of the sale, and only after the co-owners refuse to purchase the alienated share.

The owners carry out the disposal and use of common property by consent and on an equal basis. Everyone owns their part and looks out for each other's interests. Possible income received from the operation of common property is distributed by the parties in proportion to their shares, as well as maintenance costs, unless other conditions have been agreed upon by the owners. Co-owners of common property have the right to donate, sell, rent, pledge or carry out other actions with the part belonging to them, observing the legislative provisions of the Russian Federation.

According to Art. 250 of the Civil Code of the Russian Federation, participants in common ownership have the right of first buyer when buying out the share of a co-owner at the same price and on the same conditions that were offered to third parties. The seller is obliged to notify the co-owners in writing about the sale of a share of the common property so that it can be purchased by other participants. After the date of receipt of the notice, deadlines are established if the share in real estate is 30 calendar days, other property is 10, after which the seller has the right to sell his share to third parties. If the right of the first buyer is violated, each participant in shared ownership may file a claim with the judicial authorities in order to declare the transaction invalid and return pre-emptive rights to purchase. The same conditions are observed by co-owners in relation to each other when alienating part of the common property under an exchange agreement. It is not permitted by law to assign the preemptive right of the buyer of a share in favor of unauthorized persons.

An exception is the sale of property shares at auction. In case of collection of a debt from a co-owner of common property, the creditor may file a petition with the judicial authorities for the in-kind allocation of the debtor's part. If other participants refuse to buy the share, the creditor has the right to demand the sale of the debtor's property at auction to pay off his debt.

Deduction from an apartment purchased with a mortgage

The financial situation of many families does not allow them to immediately purchase housing with their own money. Therefore, for many, the solution is to buy an apartment on credit.

This procedure is very common, but many are interested in the question of whether it is possible to get a tax deduction when buying an apartment with a mortgage for two spouses.

When purchasing housing with a mortgage, you can register it as shared or common joint property of the spouses. When a couple buys a home on credit, one of them is in any case a borrower, and the second is a co-borrower.

Depending on who earns more, the main person under the mortgage agreement is selected.

According to the law, if the borrower is a husband, then the spouse can apply to grant him the right to a tax deduction.

In accordance with the changes that came into force in 2014, benefits are provided not in relation to the property, but in relation to its owner.

In this case, the deduction is first returned for the cost of real estate, and then for the cost of interest. A return of 13 percent from the purchase of an apartment on a mortgage by spouses is possible in both the first and second cases.

Documents for obtaining a mortgage deduction

In addition to the other documents discussed above, along with the application if you purchase an apartment with a mortgage, you must submit a mortgage agreement. It must be targeted at the purchase of housing.

It is impossible to obtain a tax deduction for interest on a mortgage with shared ownership under a non-target agreement.

Examples of calculating tax deductions for a mortgage

Let's look at how tax withholding is calculated when buying an apartment with a mortgage using an example.

Let’s assume that a person purchased housing worth 6,000,000 rubles, of which 2,500,000 was paid for through a loan issued for 15 years. The total amount of accrued interest on the loan is 1,250,000 rubles.

The applicant’s income for the current year is 800,000 rubles. The amount from which a tax deduction will be made: 2 million rubles + 1 million 250 thousand = 3 million 250 thousand rubles.

Thus, the total amount of tax withholding is 3 million 250 thousand × 13% = 422,500 rubles.

The amount of tax deduction for expenses for purchasing an apartment without accrued interest is 2 million rubles × 13% = 260 thousand rubles.

The amount of deduction from interest accrued on the loan is 1 million 250 thousand × 13% = 162,500 rubles.

Which option is better

There is no clear answer to the question of what is better – joint or shared ownership. Each family decides independently, taking into account the current situation. The following tips will help you navigate:

• If one of the spouses pays most of the price of the apartment from personal funds (for example, the husband paid 2,000,000 rubles from his own pocket, and the wife – 500,000 rubles), it is advisable to arrange a shared purchase. This way, during a divorce, property will be distributed fairly.
• A similar situation is when the husband’s or wife’s parents donate money to purchase housing.
• If the spouse is unemployed, runs a household or works unofficially, then in order to receive the maximum deduction when buying an apartment, it is better to register the property as common joint property.

ATTENTION! Each case is individual. Some families are of the opinion that marriage always ends in divorce, so it is safer to register everything as shared property. Others, on the contrary, believe that jointly acquired property should only be shared. You can get advice on your situation from our duty lawyer online.

conclusions

Many people are interested in whether the owner’s spouse can receive a tax deduction for an apartment. In connection with the adoption of new amendments to the Tax Code of the Russian Federation, it is now profitable for spouses to purchase housing in joint ownership.

If previously the tax deduction was tied to the property, now it depends solely on the owner. This makes it possible to receive the unused portion of the money in the future. However, only officially employed citizens have this right. Therefore, it will not be possible to obtain a tax deduction if the apartment is registered to a wife who does not work.

Joint by law

Comments to Art. 244 of the Civil Code of the Russian Federation explains that any property belonging to several owners is common joint property. Co-owners can divide it among themselves, allocating a part to each, after which, with some exceptions, it becomes common property. Cases when property can only be common property, that is, it is owned jointly by several people, occur due to legislative provisions and apply:

• on the property of the spouses;
• for joint ownership of dacha or garden organizations (various partnerships or cooperatives);
• to the property of peasant livestock farming associations.

The common property of the above categories is always joint; in the event of division, it passes to each participant as private, rather than shared, property.

Who has the right to a property deduction?

A Russian who pays taxes to the state budget can apply for a deduction. The category of citizens entitled to it includes:

• Persons who have official earnings and pay income tax on it. Individual entrepreneurs operating under tax regimes that provide for other types of payments will not be able to receive a deduction.
• Pensioners with monthly official income subject to a 13 percent tax. This includes real estate rental, tutoring, and nanny services.
• Parents who bought residential premises for minor children and have official earnings, from which personal income tax is levied.

A person who does not work, does not have official income from which taxes can be levied, or evades obligations cannot count on obtaining a property tax deduction.

Important! When purchasing a home before going on maternity leave, a tax deduction is issued taking into account the amount of earnings before maternity leave. The remainder of the payment is made after resumption of work.