What property is considered immovable under the new bill - Article

New tax rules from 2021

From 2021, new rules for taxing real estate of organizations based on cadastral value will apply.
The corresponding changes were made by federal laws dated September 25, 2019 No. 325-FZ and dated November 28, 2019 No. 379-FZ. Thus, the condition on the mandatory recording of real estate on the balance sheet of organizations as fixed assets for their taxation based on cadastral value ceases to apply. At the same time, other conditions remain, namely:

on the ownership of the organization’s objects by right of ownership or economic management;
on the availability of information on cadastral value in the Unified State Register of Real Estate (USRN);
on the establishment by law of a constituent entity of the Russian Federation of the specifics of determining the tax base based on the cadastral value of real estate objects and the inclusion of retail and office buildings in the list annually formed by the authorized executive body of the region (Article 378.2 of the Tax Code of the Russian Federation).

The types of objects for which the tax base is determined based on the cadastral value now additionally include garages, parking spaces, unfinished construction projects, residential buildings, garden houses, outbuildings located on land plots for personal farming, gardening, horticulture or private housing construction. (Clause 4, Clause 1, Article 378.2 of the Tax Code of the Russian Federation).
Let us remind you that in order to proceed to the calculation of property tax for organizations based on the cadastral value of real estate, a subject of the Russian Federation must adopt the appropriate law. If the cadastral value of such objects has not been determined, then the tax or the amount of advance payments on it in the current tax period is calculated at their average annual value.

In addition, from the tax period of 2021, a payer of the property tax of organizations, registered with several tax authorities at the location of real estate objects owned by him, the tax base for which is determined as their average annual value, on the territory of a constituent entity of the Russian Federation, has the right to submit a tax return in relation to all such real estate objects to one of the specified tax authorities of his choice, notifying the tax authority of the constituent entity of the Russian Federation.

A notification on the procedure for filing a declaration with the tax authority on the territory of a constituent entity of the Russian Federation is submitted annually before March 1 of the year, which is the tax period in which the provisions provided for in clause 1.1 of Art. 386 of the Tax Code of the Russian Federation, the procedure for submitting a tax return. Changing the procedure chosen by the taxpayer for submitting a declaration during the tax period is not allowed. Thus, instead of several tax authorities, you can choose one to submit your tax return. But these provisions do not apply if the law of a constituent entity of the Russian Federation establishes standards for tax deductions to local budgets.

For your information:
The promotional page “New procedure for taxation of property of organizations” has been launched on the Federal Tax Service website. It contains all the current clarifications on this topic and will help taxpayers understand the innovations in force for the 2021 tax period.

Land plots are

Each land plot has its own category of use. This must be recorded in the documentation; it establishes the type of activity that can be performed on this land. The following groups are found:

Movable or immovable?

Today, only real estate is subject to property tax.
In connection with the above, the question of the status of property has become relevant: is it classified as real estate or not? In practice, not everything is so simple, and the regulatory authorities and departments themselves that develop regulatory documents cannot yet come to an unambiguous definition of real estate. The problem is due to the fact that the Tax Code does not contain a definition of the concepts “movable property” and “real estate”. Taking into account Art. 11 of the Tax Code of the Russian Federation in this case it is necessary to use the definitions contained in other branches of legislation.

According to paragraph 2 of Art. 130 of the Civil Code of the Russian Federation, things not related to real estate are recognized as movable property. In turn, based on paragraph 1 of Art. 130 of the Civil Code of the Russian Federation, immovable things include land plots and everything that is firmly connected to the land, that is, objects whose movement without disproportionate damage to their purpose is impossible, including buildings, structures, and unfinished construction projects. Immovable property also includes premises and parking spaces. In addition, federal law may classify other property as real estate.

Also in accordance with Art. 131 of the Civil Code of the Russian Federation, real rights to real estate are subject to state registration in the Unified State Register of Real Estate.

[email protected] dated 02/14/2020 , in which it gave recommendations on the distinction between movable and immovable property in order to determine the objects of taxation organization property tax. These recommendations were based on Letter No. D23i-4183 of the Ministry of Economic Development of Russia dated February 12, 2020. Department representatives came to the following conclusions:

1. The concept of capital construction projects is provided for in paragraph 10 of Art. 1 of the Civil Code of the Russian Federation and is defined as “a building..., structure..., with the exception of non-permanent buildings, structures and inseparable improvements to a land plot (paving, covering and others).” There is some uncertainty in this concept, which does not allow us to reliably separate “real” capital construction projects from “false” ones, which are improvements to a land plot (civil legislation also uses the concept “component part” to refer to this legal phenomenon), due to the lack of clarity in the question of what constitutes an improvement. However, from the given number of examples it follows that capital construction projects do not include those structures that, although they have a strong connection with the land, do not require a construction permit or a declaration of the start of construction. Therefore, capital construction projects must be understood as those buildings and structures that are being built on the basis of construction permits (notifications of the start of construction) .

2. Regarding the relationship between the concepts of “capital construction object” and “immovable thing”, it should be noted that there is no complete correspondence. These concepts are different in scope, because an immovable thing is not only a building, but also a plot of land, and premises formed from the building, and parking spaces, and they are also used for different purposes. The concept of “capital construction object” used in urban planning legislation is used primarily to describe social relations during the construction of a building or structure, its repair, reconstruction (Part 1 of Article 4 of the Civil Code of the Russian Federation). At the same time, civil legislation operates with the concepts of “immovable thing”, “real estate”, “real estate” to define buildings and structures as things in relation to which the rights and obligations of participants in civil transactions arise. At the same time, it seems possible to identify both concepts when they are applied to an already constructed building (structure). In other words, the probability of recognizing a capital object after completion of its construction as a real estate object (or the formation of a real estate object from it) is very high, while a non-capital construction, as a rule, does not become real estate. Accordingly, buildings and structures constructed and put into operation belong to capital construction projects and, with a high degree of probability, to real estate objects . Non-permanent construction, that is, a structure that does not have a strong connection with the ground and whose design characteristics allow its movement and (or) dismantling, subsequent assembly without disproportionate damage to its purpose and without changing its basic characteristics (including kiosks, canopies and other similar buildings, structures) can be classified, from the point of view of civil law, as separable improvements.

3. As for improvements to a land plot, which the Civil Code of the Russian Federation does not recognize as either capital construction projects or non-capital construction projects, civil law considers them more likely to be inseparable improvements (component parts) of the land plot. According to the List of types of objects, the placement of which can be carried out on lands or land plots that are in state or municipal ownership, without the provision of land plots and the establishment of easements[1] , the use of lands and land plots without the provision and establishment of an easement can be carried out for the purpose of placing objects, for most of which there is a condition that there is no need to obtain a construction permit, that is, they are either inseparable improvements to the land plot or non-capital objects .

4. By virtue of paragraph 5 of Part 17 of Art. 51 of the Civil Code of the Russian Federation, the legislation of the constituent entities of the Russian Federation on urban planning activities may also establish additional cases when obtaining a construction permit is not required . Thus, objects subject to the regulation of this norm cannot be capital construction objects.

As a result, the final conclusion was made: if objects are built and put into operation with obtaining permits, that is, as capital construction projects, then such objects are more likely to be classified as real estate.

There is some clarity in these clarifications, especially since they were sent to the territorial tax authorities for use in their work. But not even 10 days had passed since this letter was withdrawn (Letter of the Federal Tax Service of Russia dated February 25, 2020 No. BS-4-21 / [email protected] ). This only means that a clear and unambiguous position on the issue under consideration has not yet been formed.

Is the land plot a real estate property?

I want to buy a small pond for carp breeding from municipal property. Tell me, what will be the subject of purchase in this case - the pond or the land on which it is located, or all of this together? and is it necessary to register ownership of it?

In the new version of Article 389 of the Tax Code of the Russian Federation, in force since 2021, clause 6 has appeared, which states that “land plots that are part of the common property of an apartment building” are not subject to taxation for land tax. The organization bought non-residential premises in an apartment building. Is the land on which this house is located subject to land tax? Do I need to pay land tax on non-residential premises purchased in 2021 in 2021?

Law enforcement practice regarding the qualification of real estate

Letter No. BS-4-21/ [email protected] sent information about law enforcement practice regarding the qualification of real estate, including for the purpose of calculating property tax for organizations.
In the document, tax authorities summarized the existing judicial practice on the classification of a specific type of property as real estate for the purposes of calculating property tax. The conclusions reached by the courts are presented in the table. Representatives of the Federal Tax Service believe that in order to identify the grounds for classifying a property as real estate, it is advisable to investigate:

availability of a record about the object in the Unified State Register of Real Estate;
in the absence of information in the Unified State Register of Real Estate - the presence of documents confirming the strong connection of the object with the land and the impossibility of moving the object without disproportionate damage to its purpose, for example, for capital construction projects - the availability of documents of technical accounting or technical inventory, permits for construction and (or) for putting the object into operation operation (if necessary), design documentation, expert opinion or other documents containing information about the relevant characteristics of objects, etc.

In the absence of records about the property in the Unified State Register of Real Estate, the grounds for applying the norms of the Tax Code of the Russian Federation, depending on the type of property (movable or immovable), are determined based on the current regulatory legal acts and established judicial practice.

Conclusion made by the arbitrators	Details of the judicial act
Due to the lack of qualities of a fence as an independent piece of real estate, ownership of it is not subject to registration, regardless of its physical characteristics and the presence of individual elements that ensure a strong connection of this structure with the corresponding land plot. The fence is an improvement project, made of corrugated sheets on a concrete foundation on a natural foundation. The functional purpose of the fence allows it to be qualified as a building for auxiliary use	Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 24, 2013 No. 1160/13
The disputed property (high-rack structures) is not part of the production and warehouse complex and is reasonably taken into account by the company as production equipment with the possibility of dismantling. The disputed equipment is classified as movable property, and therefore is not subject to corporate property tax	Resolution of the Arbitration Court of the Moscow Region dated July 14, 2016 in case No. A41-19566/2015 (Decision of the Supreme Court of the Russian Federation dated November 11, 2016 No. 305-KG16-14860 was left unchanged)
In the case, it was concluded that the technological pipeline was classified as real estate. The disputed property, due to industry requirements for the design and safe operation of process pipelines, was designed and installed on a specially constructed foundation (overpasses), the presence of which ensures its strong connection with the ground. By its design, the disputed object is not intended for its subsequent disassembly, movement and assembly in a new location. It is impossible to move the disputed object without causing disproportionate damage to its structural integrity and designed functional purpose.	Resolution of the Arbitration Court of the Moscow Region dated February 10, 2017 in case No. A40-98958/2016
The court recognized as legitimate the inspectorate’s position on additional assessment of property tax in connection with the unlawful inclusion of the residual value of deck cranes in the total amount of the residual value of the preferential property. The courts proceeded from the fact that cranes are part of a complex property complex, are an integral technological (functional) part of real estate, that is, they are part of a structural complex	Resolution of the AS SZO dated November 27, 2017 in case No. A42-539/2017
atively articulated objects, are an integral part of real estate and are real estate
A transformer substation is recognized as real estate: it is located in a specific place, built on a monolithic reinforced concrete foundation, connected by underground communications with supply facilities (cable power lines laid in underground trenches), that is, it has a strong connection with the ground	Resolution of the AS SZO dated May 18, 2018 in case No. A05-1595/2017
The courts have established that a thermal power plant is a complex of buildings, structures and other things united by a single production purpose and technological mode of operation, inextricably linked physically or technologically, built according to a single design and located on the same land plot; The fixed assets included in the thermal power plant are its integral part and belong to a complex thing. The disputed property is a single real estate complex and, as a result, is subject to property tax	Resolution of the Supreme Court of the Russian Federation dated April 4, 2019 in case No. A29-4430/2018
The courts noted that boiler room equipment cannot fully and independently function directly outside specialized buildings (premises), and the use of the boiler room building (premises) is impossible for its direct functional purpose in the event of dismantling of gas equipment (boilers). In connection with the above, controversial objects (including those accounted for as separate inventory objects in accordance with accounting rules), without which a capital construction facility (building or premises) for production purposes cannot fully function, are subject to taxation as part of this building (premises) as real estate objects	Resolution of the AS PA dated May 28, 2019 in case No. A12-14902/2018
The RF Armed Forces indicated that equipment does not belong to buildings and structures, forming an independent group of fixed assets, with the exception of cases expressly provided for in the classifiers, when individual objects are recognized as an integral part of buildings and are included in their composition. The mere fact of installation of equipment in a building specially erected for its operation, including if subsequent dismantling and relocation of the equipment will require additional costs and partial liquidation of the building, does not mean that the purpose of the equipment is to serve the building	Ruling of the Supreme Court of the Russian Federation dated July 12, 2019 No. 307-ES19-5241 in case No. A05-879/2018
All controversial objects (evaporators, crystallizers, elevator, diffusion apparatus) correspond to the concept of “structures”. At the same time, the controversial fixed assets are intended to service the sugar factory by creating conditions for its operation. The court found that the disputed fixed assets are not real estate	Resolution of the Nineteenth Arbitration Court of Appeal dated December 30, 2019 in case No. A36-12764/17
The court found that the disputed objects (fish factory, refrigeration equipment, vertical plate freezers, packaging complex, sonar) do not belong to structures, but are equipment used on the ship. The vessel and equipment have different functional purposes, different useful lives, the fishing vessel and the disputed objects belong to different groups of fixed assets	Resolution of the Fourteenth Arbitration Court of Appeal dated December 19, 2019 in case No. A05-5074/2019
The court recognized that the inseparable improvements made by the taxpayer to the leased property (major repairs and redevelopment of the building) are of a capital nature and are associated with reconstruction, modernization, completion and additional equipment of the property. Free movement of inseparable improvements (capital investments in leased property) and their dismantling without causing disproportionate damage to the leased building are impossible. They relate to real estate in accordance with Art. 130 Civil Code of the Russian Federation	Resolution of the Second Arbitration Court of Appeal dated December 5, 2019 No. A29-14394/2018
The claims against the taxpayer, which consisted in the conclusion that the property was classified as real estate due to the fastening of the equipment to the foundation, as well as its technological connection with other equipment, despite the fact that there was no direct connection between the equipment and the maintenance of the workshop building in which this equipment was installed, were recognized by the court as unfounded	Determination of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation dated July 12, 2019 No. 307-ES19-5241 in case No. A05-879/2018

[1] Approved by Decree of the Government of the Russian Federation dated December 3, 2014 No. 1300.

Is land a real estate property?

The condition of the purchase and sale transaction is the price, which should not be higher than the cadastral price of the plot. If real estate that is state property is sold, the price is determined by the authorized bodies. A transaction for the sale of a plot will be declared invalid if the interests of the owners are not taken into account. If there are several owners, the land is indivisible. Real estate transactions are considered risky. It is advisable to carry them out accompanied by professional lawyers, which will prevent many problems. Land is considered an investment property and therefore fraud is not uncommon. Registration of transactions Legal registration involves state registration of the transaction agreement and transfer of rights. But compared to other property, the procedures are preceded by lengthy registration of the site. Along with the contract there must be a cadastral passport.

Is it considered a thing? According to Article 130 of the Civil Code of the Russian Federation, land plots are an immovable thing with which various transactions are carried out. In this regard, various consequences and property rights arise. Declared land plots are territories whose area and boundaries are not defined as required by law.

25 Jul 2021 jurist7sib 206

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