Review of the practice of the Armed Forces of the Russian Federation from March 2015 to March 2020 on the issues of “Taxes and other obligatory payments for real estate”

Now property owners are having a hard time:

• Falling rental income
• Complete shutdown for many organizations
• Decrease in demand for goods and services of those entrepreneurs who continue to work

And this is an incomplete list of the difficulties that entrepreneurs had to face in 2020.

In this situation, cost optimization is of particular importance. An important direction of such optimization is the reduction of mandatory payments for real estate, such as property tax, land tax, and others.

However, it is important to understand that it is impossible to win a lawsuit or even make a realistic forecast for reducing mandatory payments by studying one or two regulations. Of particular importance in this category of disputes is jurisprudence, which sometimes turns the letter of the law upside down.

In this review, we have analyzed the most important legal positions of the Supreme Court of the Russian Federation, which will help you pay less for land and real estate.

Definition N 306-ES14-6558

If the amount of rent for a land plot is regulated (that is, it is established by a normative act), then when a normative act is adopted or amended, the rent is calculated in a new way from the moment such an act (changes to the normative act) enters into force, and not from the moment the changes are made in a lease agreement.

It is important that this rule applies only to land lease agreements concluded after the entry into force of the Land Code of the Russian Federation.

Definition N 302-KG16-11762

Land plots that simultaneously meet two criteria are not subject to taxation: & nbsp;

1. they have the status of restricted circulation;

2. they are provided to support activities in the field of defense and security. 

Subject to the provisions of Art. 27, 93 of the Land Code of the Russian Federation, only land plots that are in state or municipal, but not in private ownership meet these requirements. & nbsp;

Answer to Question No. 1 of the Review of Judicial Practice of the Supreme Court of the Russian Federation No. 1 (2017)

The amount of rent for a public land plot, when changing the cadastral value of the plot, changes from the date of entering information about the approved cadastral value in the state real estate cadastre (from January 1, 2017 - the Unified State Register of Real Estate). Another may be established by a normative act regulating the procedure for determining rent.

Definition N 305-ES16-16859

When calculating the rent for the use of a public land plot, it is necessary to take into account the cadastral value of the disputed land plot, established by a judicial act that has entered into force, from the date specified in this judicial act, and not from the date of entering information about this value into the state real estate cadastre.

Definition N 14-KG17-12

The price of a state-owned land plot redeemed by the owner of the buildings located on it is determined based on the cadastral value of this plot at the time of applying for a buyout to the authorized body.

Definition N 306-ES17-13791

If a person has acquired ownership of a building located on a land plot provided to the seller on the right of permanent (unlimited) use, and has not re-registered this ownership right or lease right before July 1, 2012, he is obliged to pay for the actual use of the land plot (unjustified enrichment) in the amount of rent on the basis of regulatory legal acts of the constituent entity of the Russian Federation.

Definition N 305-ES17-12788

The amount of the regulated rent for the use of a land plot owned by a constituent entity of the Russian Federation and used for the operation of objects of electric and gas supply systems, objects of heat supply systems, objects of centralized hot water supply systems, cold water supply and (or) sewerage of federal, regional or local significance, from March 1, 2015, it cannot exceed the amount of rent established for the corresponding land plots that are in federal ownership.

The rental rate for federal plots of this category is set at 0.7% of the cadastral value of the land plot (Order of the Ministry of Economic Development of April 23, 2013 N 217).

Definition N 305-KG18-9064

In the event of the death of a real estate object, the obligation to pay tax on property of organizations ceases not from the moment the corresponding entry is made in the Unified State Register of Real Estate, but from the moment the object is actually demolished.

Definition N 305-ES18-22413

If prthe real estate seller paid the regulated rent of the land plot on which this real estate is located at a preferential rate (due to the re-registration of the right of permanent (unlimited) use to the right to lease until 07/01/2012), then for the buyer of real estate the amount of rent remains taking into account the use of benefits.

Definition N 303-ES18-26243

If, as a result of the privatization of a state unitary enterprise in the form of transformation into a joint-stock company, the latter became the owner of a land plot that the enterprise previously owned under a lease agreement with a public legal entity, the obligation to pay rent ceases from the moment of state registration of the joint-stock company in the Unified State Register of Legal Entities .

Definition N 305-ES19-4399

In accordance with the principle No. 7 of the Basic Principles for Determining the Rent for the Lease of Land Plots in State and Municipal Ownership, approved by Decree of the Government of the Russian Federation of July 16, 2009 N 582, if the land plot is limited in circulation, then the amount of rent for such a plot for the owner of a building or structure located on it should not exceed the amount of land tax.

This rule applies to all public land plots, even if a higher rent is set by the regulation of the competent authority.

Definition N 305-ES19-12083

The absence of a notice from the lessor of a change in the regulated rent, which the lessor must send in accordance with the terms of the contract, does not relieve the lessee from the obligation to pay for the rent in the amount established by the relevant regulatory legal acts, but at the same time, by virtue of the provisions of Art. 406 of the Civil Code of the Russian Federation allows him to challenge the legitimacy of charging the lessor a penalty for violating the terms for paying this fee.

Definition N 305-ES19-1374

Principle N 7, enshrined in Decree of the Government of the Russian Federation of July 16, 2009 N 582, is applied exclusively in cases of lease of land plots related to the list established by paragraph 5 of Art. 27 of the Land Code of the Russian Federation (land plots with limited circulation).

In addition, according to sub. 4 p. 5 art. 39.7 of the Land Code of the Russian Federation, the amount of rent for a land plot cannot exceed the amount of land tax in the event that a lease agreement is concluded in accordance with paragraphs. 3 or 4 tbsp. 39.20 of the named code with persons who own the buildings, structures, premises located on an indivisible land plot on the basis of the right of operational management. For other right holders (owners of the premises and persons to whom the premises belong under the right of economic management), the law does not provide for a similar rule, and therefore the amount of rent is determined in a general manner. 

Do you have any questions? Using them, you can contact the author Daria Vladimirovna Tretyakova (head of the representative office in Moscow).

Author

Daria Vladimirovna Tretyakova

Head of representative office in Moscow