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It\'s a dangerous deal. When sale of an apartment results in a fine of 18 million rubles

Despite the coronacrisis, real estate transactions continue to grow in Russia. But sometimes even a typical sale contract drawn up by a notary can lead to problems with the law.

December 21, 2020, 00:40

At the end of 2018, Margarita, a resident in Moscow, decided to move with her daughter to a country house. The realtor quickly found a respectable buyer - a family that a couple of years ago came from China and opened a network of spas. The apartment in the center of the capital, although small in area, was ideal for the citizens of the People\'s Republic of China, as it was a three-minute walk from their place of work. They quickly agreed with the proposed price of 12 million rubles.

In order to eliminate possible risks, it was decided to make the sale with a notary. Moreover, the daughter officially owned a third of the real estate, and such transactions are legally subject to mandatory notary confirmation (Article 42 of the law No. 218-FZ "On the state registration of real estate"). The notary, in order to simplify the procedure, not only drew up and certified the contract, but also submitted the entire set of necessary documents to the Rosreester (Russian registry of real estate).

After the transfer of ownership was registered, Margarita and her daughter took the money from the bank cell and left to settle in a cozy cottage in the west of Moscow region.

Illegal deal

Everything was fine until September of this year, when Margarita together with the usual tax notice was handed another letter from the Tax Service. It contained a ruling of the Federal Tax Service, which stated that the woman and her daughter were found guilty of committing an administrative offence under Article 15.25 of the Russian Code for Administrative offences (violation of currency laws). And each of them was given an administrative penalty in the form of a fine of nine million rubles.

According to the tax authorities, the violation was that the buyers of the apartment were foreigners, and the amount of the transaction was received by the sellers in cash. By law, such transactions must take place strictly in a non-cash form. The sanction for violation of currency law ranges from 3/4 to the full amount of the illegal currency transaction. Since there are two sellers officially, the fine is doubled. In total, 18 million rubles.

"It seems that the tax authorities are right. There are indeed signs of an administrative offence in Margarita’s actions," said Alexander Inyutin, head of the Western Bar Association in Moscow. "Despite the fact that the contract for the purchase and sale of real estate was in rubles, all transactions made between a citizen of the Russian Federation and foreign citizens are considered by law to be a currency transaction, so all payments must be carried out strictly on a non-cash basis (paragraph 3 of article 14 of the law 173-FZ).

It is clear that for a woman such legal subtleties turned out to be a novelty. And, it would seem, this should have been considered by the notary certifying the deal. Moreover, a special letter from the Federal Notary Chamber was issued on this account, which separately stated the inadmissibility of cash payments in such cases.

According to the notary’s explanations, which were received from him by the representatives of the Federal Tax Service, he certified the transaction on the transition of the title, and the terms of payments were the choice of the parties, which he allegedly could not influence. The realtor also gave an explanation in the tax inspectorate and said that he was looking for buyers, not the legal aspects of the transaction, especially since the transaction was notary.

"In general, all the professional participants of the transaction, having received a fee, sorry, ran away, leaving their client alone with the tax authorities, - said Salimkhan Magomedov, the senior lawyer of the company "European House of Law". " Obviously, when citizens make a notary transaction, they hope for a high legal qualification of the notary and therefore do not study the legislation themselves. Moreover, this rule in the law is very difficult and not everyone can understand it. The notary could well express his position on this issue to Margarita and her daughter. But whether he did it or not, now it is difficult to assess reliably. I think that this issue should be considered by the Ministry of Justice, because it is this agency that oversees the activities of notaries.

Would court help?

Margarita’s family is preparing to defend their rights in court. In addition to the controversial role of the notary, who saw all the documents on the deal, but refrained from the advice on the terms of payment, the woman is surprised that the tax authorities in the little less than two years that have passed since the transaction, never made their claims against her, and immediately issued a ruling on penalty. And in such an astronomical sum, exceeding the price of the sale of the apartment.

"I believe that Margarita and her daughter should seek in court, if not the complete cancellation of the fine, then at least a reduction in its amount – it is possible," Dmitry Shagin, a member of the Interregional Bar Association of Moscow, shared his thoughts. "It’s unlikely that the fine could be completely cancelled. Pursuant to the law, the legal time period for brining to justice for such violations amounts to two years. In this case, the tax authorities managed to meet it.

Of course, in case all the payments on the transaction would have been carried out through a letter of credit or a notary’s deposit account, no problems would arise. So all sellers of real estate need to be careful, check buyers and how exactly the payments on their contracts are carried out. Perhaps, someone will be hold harmless from sudden claims, the amount of which can exceed the amount of the transaction, Dmitry Shagin noted.

Authors

Maxim Grekov

Alexandra Bayazitova

life.ru, 21.12.2020