Is it possible to challenge a deed of gift for an apartment by relatives or the donor. Exclusion of an inactive debtor from the Unified State Register of Legal Entities

The Tax Code of the Russian Federation begins to flow from the moment the document on the identification of arrears is drawn up, sometimes the courts also agreed (Resolutions of the FAS VSO dated 02.27.2008 N A19-12234/07-30-F02-105/08; FAS SZO dated 12.20.2007 in case N A26- 3314/2007). We warn the manager: Attempts by tax officials to collect old debts listed on your RSB card must be stopped. True, you will most likely have to argue in court. But the only correct “date of identification of arrears” is the next day after two events have occurred: - you submitted a declaration with the amount of tax to be paid; - the deadline for paying the tax has arrived, but the tax has not been paid (Clause 2 of Article 11 of the Tax Code of the Russian Federation). Three short examples. Let's assume that the last day to pay taxes for the first quarter is 04/20/2011. This same day is the last day for filing a tax return. Situation 1. You submitted your return on April 15.

Pre-trial appeal of decisions and actions of tax authorities

After all, the Tax Code of the Russian Federation does not grant the tax authority the right either to send a repeated demand or to withdraw a previously issued new one (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 21, 2009 N 2599/09; Resolution of the FAS Far Eastern Military District dated November 3, 2009 N F03-5755/2009; FAS MO dated 07/29/2009 N KA-A40/7060-09; FAS PO dated 02/04/2010 in case N A12-16625/2009).The taxpayer who received demand N 53751, given as an example in this article, later received this repeated demand .

Claims to the “Settlements with the Budget” card As we figured out, when appealing a claim made on the basis of the RSB card, you need to demand that the amount of debt be excluded from the RSB card.

The following arguments will help with this. Of course, in 2005

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Home — Articles When an inspection makes a demand for payment of a tax, penalty or fine based on the results of an inspection, everything is more or less clear: both the amounts are recognizable and the grounds for additional charges are already clear.

But often the inspection requirement is based only on some old numbers from your “Settlements with the Budget” card (RSB card, former personal account card). In such a situation, it is important not to get confused and understand what to do with it.

Step 1. We study the requirement: are there grounds for appeal? The requirement form was approved by the Federal Tax Service of Russia (Clause 5 of Art.
69

Attention

Tax Code of the Russian Federation; Appendix 1 to the Order of the Federal Tax Service of Russia dated December 1, 2006 N SAE-3-19/), registered with the Ministry of Justice (Letter of the Ministry of Justice of Russia dated December 19, 2006 N 8633) and therefore is mandatory for the tax authorities (Subclause 1, paragraph.

1, clause 4 art. 31 of the Tax Code of the Russian Federation).

Challenging the tax authority's demand for tax payment

Plenum of the Supreme Arbitration Court of the Russian Federation No. 5 clarified that a taxpayer has the right to appeal to the court the requirement to pay tax, penalties and the requirement to pay a tax sanction, regardless of whether he challenged the decision of the tax authority on the basis of which the corresponding requirement was made.

The Constitutional Court indicated the possibility of appealing to the court the requirement as a non-normative act Russian Federation in the determination dated 04.12.2003 N 418-O “On the complaint of citizen Egorov Andrey Dmitrievich about the violation of his constitutional rights by the provisions of Articles 137 and 138 of the Tax Code of the Russian Federation, Article 22 of the Arbitration Procedural Code of the Russian Federation of 1995, Articles 29 and 198 of the Arbitration Procedural Code of the Russian Federation Federation 2002".

Pre-trial procedure for resolving tax disputes

Complaint regarding a member legal force The decision of the tax authority, which has not been appealed, is filed within one year from the date of the appealed decision (clause

2 tbsp. 139 Tax Code of the Russian Federation). The higher tax authority is obliged to consider the complaint within one month from the date of receipt.
The period for consideration of a complaint against a decision that has entered into force may be extended by 15 days for receipt from a lower inspection necessary documents.
The period for consideration of a complaint against a decision that has not entered into force does not increase, since, according to paragraph 3 of Art. 139

Tax Code of the Russian Federation, an appeal is submitted through the inspection that made the decision, which transfers it along with all materials to a higher authority.

The taxpayer is notified of the decision taken on the complaint within three days from the date of its adoption.

Tax claim: fulfillment and appeal

But no matter how huge the amount of tax payable is, until April 20 (inclusive) you don’t have to pay it, and you won’t have any arrears. The arrears will appear only on April 21. From the same date, 3 months will begin to submit a claim.

Tax Code of the Russian Federation). Situation 2. You submitted a declaration on April 20 - the deadline for submitting a claim is the same as in situation 1. Situation 3.

The declaration was submitted in violation of the deadline - April 29.
Despite the fact that the deadline for paying the tax was violated, the inspectorate could not make a demand before submitting the declaration: it simply did not know the amount that needed to be indicated in the demand.

Therefore, the period for submitting a claim will begin to run from April 29 and end on July 29 (Clause 5 of Art.

6.1 of the Tax Code of the Russian Federation). Now take another look at the requirement itself.

In accordance with clause 9 of article 101 and clause 2 of article 101.2 of the Tax Code of the Russian Federation, in the event of filing an appeal against a decision of the tax authority made based on the results of a tax audit (desk or field) said decision comes into force from the date of its approval by a higher tax authority in whole or in part.

At the same time, according to clause 3 of Article 101.2 of the Tax Code of the Russian Federation, if a higher tax authority leaves the appeal without consideration, the decision of the lower tax authority comes into force from the date the higher tax authority makes a decision to leave the appeal without consideration, but not before the expiration deadline for filing an appeal.

At the same time, the mandatory pre-trial settlement of all tax disputes, introduced on January 1, 2014, is accompanied by the establishment of an accelerated procedure for the consideration of disputes related to appealing the actions (inaction) of tax officials and decisions taken in accordance with Article 101.4 of the Tax Code of the Russian Federation based on the results of other forms of control - 15 working days.

In accordance with paragraph 6 of Article 140 of the Tax Code of the Russian Federation given period if necessary, it can be extended by the head (deputy head) of a higher tax authority, but for no more than 15 working days.

Very often the court decision is not in your favor. The decision seems unfair to you, and you are wondering what to do next?

The law provides for the right to appeal court decisions.

Our lawyers are professional will help you appeal (cancel) an unfair court decision.

To do this you need to call or come to our office with a copy of the appealed decision .

If the decision is made by a magistrate, it is appealed to a higher district court, and the complaint in this case is called an appeal. If the decision at first instance was made by a district court, it is appealed to a higher city court by filing a CASSATION appeal.

The appeal period is 10 days from the date of the final decision. What does it mean? At the court hearing, the judge announces only the so-called operative part of the decision, that is, its outcome (the claim is satisfied or the claim is denied). After this, the judge has a maximum of five days to draw up a full, reasoned decision. But this period is only indicated in the code, but in reality the judge can take a week, or two, or three, or a month to write a decision.

How to avoid missing a deadline?

Immediately after the decision is made, go to the office and submit a handwritten (in two copies) complaint with approximately the following content

You leave one copy in the office, put a stamp on the second and take it for yourself. They may try to refuse to accept your complaint under the pretext that there is no copy for the other party, the state fee has not been paid, etc. This is illegal, since the competence of the office staff does not include legal analysis of the documents presented. The decision to accept or reject a complaint is made only by the judge.

According to the law, the complaint must reflect its motives - why you consider the decision illegal. So this short complaint does not meet the requirements and will be left by the court without progress for a certain period given to you “to eliminate the shortcomings.” During this period, you will have time to receive the decision in final form and write a normal complaint.

If you received the decision late, do not forget to apply directly in the pleading part of the complaint to restore the missed deadline.

Do I need to pay a state fee?

Yes, a complaint in accordance with the Tax Code is subject to a state fee, with the exception of complaints about decisions on administrative offenses. Today the cost of state duty is 100 rubles.

Would filing a complaint hurt the case?

Some citizens are afraid to appeal court decisions so as not to “damage their relationship with the judge.” These are unfounded fears. You cannot ruin your relationship with the judge because there is no relationship between you. When making a decision, a judge is least of all guided by a feeling of like or dislike, as well as a sense of “fairness.” The judge is guided by the law, as well as the general “policy” that has developed in a particular court.

What arguments should be given in the complaint?

Not every “injustice” committed by the court, from your point of view, entails the reversal of the court decision. The law establishes very specific grounds for a decision to be declared illegal.

Thus, you will need to prove that the court, when making its decision, did not examine all the circumstances, and that it applied the law incorrectly.

If it seems to you that the court incorrectly assessed the evidence (for example, the court believed a witness who, from your point of view, is lying), then according to the law the court evaluates the evidence “based on internal conviction” (it itself decided, period!), so the arguments that amount to overestimation of evidence will be useless.

In what case will the decision be canceled?

What happens after the decision is canceled?

Here are the possible options:

1. The court cancels the decision and makes a new one (which immediately comes into force).

2. The court cancels the decision and sends the case to the lower court for a new trial.

3. Leaves the decision in force (as determined).

If the court sends the case for a new trial, then we can say with a high degree of confidence that the new decision will be absolutely opposite to the original one. It does not matter what arguments the court of second instance gave when overturning the decision. Even if specific instructions are given (for example, “pay attention to the documents on privatization and study them carefully, only then make a decision”), the court of first instance will still change the decision by 180%, just so that it is not canceled again. Again decision You can also appeal, and if it is cancelled, you can appeal the third decision in the case, and so on.

It should be noted that the Moscow City Court extremely rarely overturns decisions of the first instance. We explain this not by the high percentage of legal and correct decisions of the courts of first instance, but only by the principle of “professional solidarity,” which some call mutual responsibility.

The ruling and decision of the court of second instance enter into legal force immediately.

Is it possible to appeal a decision that has entered into force?

Theoretically, it is possible, in accordance with the so-called supervision. However, the supervisory stage is not mandatory or guaranteed.

Based on your supervisory complaint, the case may be requested and considered, but most likely it will not be requested and considered. The grounds for reviewing a case based on a supervisory complaint are so vague (Grounds for canceling or changing court decisions in the supervisory order are significant violations of substantive or procedural law that affected the outcome of the case, without eliminating which it is impossible to restore and protect violated rights, freedoms and legitimate interests, and also protection of public interests protected by law...), that this possibility is rather declarative. It is not without reason that in the practice of the supervisory authority Russian ships is not given importance.

If you have received a court decision that is not in your favor, you have the opportunity to cancel it if you contact our company.

Don't waste time!

In accordance with paragraph 1 of Article 21.1 of Federal Law N 129-FZ “On State Registration of Legal Entities and Individual Entrepreneurs”, a legal entity that, during the twelve months preceding the moment the registration authority made the relevant decision, did not submit reporting documents required by the legislation of the Russian Federation on taxes and fees, and did not carry out transactions on at least one bank account, is recognized as having actually ceased its activities.

Such a legal entity may be excluded from the Unified State Register of Legal Entities in the manner prescribed by Federal Law No. 129-FZ.

According to paragraph 8 of Article 22 of Federal Law N 129-FZ “On State Registration of Legal Entities and Individual Entrepreneurs”, the exclusion of an inactive legal entity from the Unified State Register of Legal Entities can be appealed by creditors or other persons whose rights and legitimate interests are affected in connection with the exclusion an inactive legal entity from the unified state register of legal entities, within a year from the date when they learned or should have learned about a violation of their rights.

There are cases when creditors file lawsuits against their debtor - a legal entity, and at this time the debtor is excluded from the Unified State Register of Legal Entities by the tax authorities on the basis of Art. 129-FZ “On state registration of legal entities and individual entrepreneurs.”

Should a creditor appeal against the exclusion of a debtor from the register of legal entities? And how in this case to repay the debt?

YURKOLLEGIA General Director Elena Gerasimova comments:

“According to paragraph 2 of Article 64.2. Civil Code of the Russian Federation “the exclusion of an inactive legal entity from the register of legal entities entails legal consequences in relation to liquidated legal entities.”

In accordance with Article 61 of the Civil Code of the Russian Federation, “liquidation of a legal entity entails its termination without transfer in the order of universal succession of its rights and obligations to other persons.” This means that after the exclusion of a legal entity from the register of legal entities, creditors can no longer present their claims against a legal entity.

At the same time, the exclusion of an inactive legal entity from the unified state register of legal entities does not prevent bringing to justice participants of a legal entity, as well as other persons who have the right to give instructions binding on society or otherwise have the opportunity to determine its actions.

The said participants or other persons may be subject to subsidiary liability for his obligations, if the failure to fulfill obligations is due to the fact that the said persons acted dishonest or unreasonable(clause 3 of Article 64.2 of the Civil Code of the Russian Federation, Article 3 of the Federal Law of the Russian Federation dated 02/08/1998 N 14-FZ “On Limited Liability Companies”).

Thus, in the event of exclusion of the debtor from the Unified State Register of Legal Entities by tax authorities on the basis of Article 129-FZ “On State Registration of Legal Entities and Individual Entrepreneurs”, the creditor must choose one of two protection options. Either appeal the exclusion of a legal entity from the register of legal entities and thereby gain the opportunity to present claims against the legal entity itself, or immediately present your claims to the founders and persons controlling the debtor.”

Last updated September 2019

Is it possible to challenge a deed of gift? This question often arises among relatives of the donor, who are dissatisfied with the fact that property (usually real estate) is in the ownership of a stranger.

A deed of gift is a gift agreement and can be drawn up not only in favor of relatives, but also of persons without family ties. Usually relatives who did not receive the expected inheritance after the death of the donor are dissatisfied with this fact, so in such cases the question arises whether it is possible to challenge the deed of gift.

The transfer of the right to an apartment under a deed of gift must be registered with the Registration Chamber (administration), only in this case the ownership right passes to the DONE.

If the transfer of ownership is not noted by the registration authorities, then the gift agreement is an ordinary piece of paper, which means that the apartment has not been donated and the donor remains its owner. Notarization is not required for the contract, but without such certification the risks of further challenging the deed of gift increase (see).

How can a donor challenge a deed of gift?

If the deed of gift is drawn up according to all the rules, the donor can challenge (revoke) the donation in the following cases:

The deed of gift can be revoked strictly in court, that is, the donor must prove that his health or the donated apartment was damaged.

In case of death of the donor, if it occurred as a result of the actions of the donee, relatives can challenge the deed of gift.

When a deed of gift is invalidated

There is also the possibility of recognizing the deed of gift as illegal or void. Both the donor himself and other persons can apply for this.

The contract should not contain additional conditions

Both realtors and notaries know this and do not allow any indication in the gift agreement. additional conditions, which recognize the deed of gift as invalid or do not allow such an interpretation in the Registration Authority:

• It cannot be stated that the property passes to the new owner immediately after the DONOR'S DEATH. This condition makes the deed of gift illegal, and the legal rules relating to inheritance apply to the property. That is, there is no need to challenge such a deed of gift - it is invalid.
• It cannot be stated that the donee undertakes to PROVIDE THE DONOR MATERIALLY for life (maintain, etc.), to provide lifelong care for him (for example, if he is sick and of advanced age); this is an annuity agreement, not a gift.
• If you include in the agreement such a condition as the possibility of the DONOR LIVING in the donated apartment until death, then such an agreement may be rejected by the registering authority, since it contains elements of a rent agreement.

But, if, for example, a retired donor donates his only home, if a lawsuit is filed, such an agreement may be declared invalid due to unfavorable conditions for the donor. And if there is any doubt that the donor may end up on the street, it is better to write such a clause in the agreement and insist on its registration in the Registration Chamber.

A deed of gift is considered invalid if it is given to a certain category of persons

In particular, there are several categories of persons who cannot be donees, that is, if real estate is donated to such a person, you can go to court and challenge the gift agreement:

• civil servants in connection with the implementation of their activities
• guardians and trustees, as well as other representatives of minors or incompetent persons in relation to the property of wards
• personnel of medical or social institutions (doctors, nurses, teachers, social workers etc.) in relation to the property of people staying in these institutions

Another case when a deed of gift can be challenged is if the donor is legal entity and donated the property to avoid its seizure in bankruptcy.

Can relatives challenge the deed of gift?

It is impossible to challenge a deed of gift, drawn up and executed in accordance with all the rules, DURING THE LIFE OF THE DONOR. That is, if your grandmother, for some merit or out of personal sympathy, gave her apartment to a neighbor, and she continues to live in this apartment, then nothing can be done. The grandmother, provided that she is legally capable, disposes of any of her property herself.

In order to return a donated apartment, valid grounds are required, which the court, when considering the case, considers sufficient to invalidate the deed of gift. During the life of the donor, relatives can challenge the legality of the gift in court in the following cases:

• if the donor was officially deprived of legal capacity at the time of drawing up and signing the document
• if the person was in an inadequate state, for example, under the influence of drugs or alcohol
• if there was pressure on the donor from third parties

A donation can be challenged as violating the requirements of the law (Article 168 of the Civil Code of the Russian Federation)

1. The donor had no right to dispose of the disputed object

The position may be based on the absence of registered property rights; there was a judicial act invalidating the basis for the emergence of property rights (for example, the purchase and sale agreement was declared invalid). In this case, you will have to prove that he was the legal owner.

2. The donor did not obtain the consent of the spouse for the gift

If the donor gave a piece of real estate acquired during a legal marriage, without the official consent of the spouse. It is worth proving that either such consent was not required (the property was not jointly acquired), or that in fact the spouse agreed.

3. The recipient knew about the lack of consent of one of the co-owners of the object for donation

An important question is whether the new owner initially knew that the transaction violated the legal requirement to obtain consent.

• If he knew (or it is clear that he should have known, for example, the impossibility of obtaining consent was discussed in front of him), then he is the same violator of the law as the donor.
• If he didn’t know, then he was a bona fide purchaser and was himself misled.

This means that if they demand to challenge the deed of gift because the recipient of the gift was aware of the violation of the law, in contrast it is necessary to prove that he did not know about the lack of consent to the gift of the other owners.

If the plaintiff does not provide indisputable evidence of the knowledge of the new owner, it is necessary to draw the court’s attention to the fact that there is no evidence and point out that the plaintiff’s position is unfounded and unsubstantiated.

4. If the gift is made by deceiving the donor (fraud)

The donor can be deceived by both his acquaintances and strangers.

Example: The woman's son is in prison. Former cellmates may promise to resolve the issue of early release and ask for a gift of an apartment for their services. Such a donation can be declared invalid on the grounds that these persons are not able to resolve such an issue, they simply took advantage of the emotional state of the donor and voluntarily forced such a transaction.

5. It would not be superfluous to prove that:

• The donor did not take any actions aimed at canceling the donation or registration of the deed of gift (we confirm that there is no evidence of such actions).
• The plaintiff is not an interested party, therefore, does not have the right to demand that the donation be invalidated (we are looking for the absence of evidence of the plaintiff’s interest).

If the donation is disputed as an imaginary or feigned transaction (Article 170 of the Civil Code of the Russian Federation)

If the donation was imaginary or feigned, for example, for the purpose of tax evasion or to cover up another transaction.

• An imaginary deal is a deal that didn’t actually happen. Let’s say that in relation to the imaginary donor there is a court decision to collect Money, he has property, say an apartment, that can be foreclosed on. He enters into a gift agreement with a friend (brother, matchmaker), but in fact continues to use the housing himself. Such an agreement was concluded for the purpose of evading debt payment and is fictitious.
• Sham deal- a transaction that covers another transaction with a different legal essence. For example, if before drawing up a deed of gift for a residential property, the parties agreed on some payments to the donor (payment of utilities, provision of material assistance, transfer of funds), then the form of donation actually hides a sale or rent.

We prove that the residential premises have actually been transferred to the donee, he has assumed the rights of the owner (we confirm this with a certificate of title, witness testimony, payment of utilities, property taxes, telephone and Internet contracts on behalf of the donee, etc.).

If they try to prove that the donor, being legally capable, still did not understand the meaning of his actions and did not direct them (under Article 177 of the Civil Code of the Russian Federation)

Presence of diseases that caused inappropriate behavior or influenced the state in such a way that the donor did not understand the meaning of his actions

Example: The donor abused alcohol, but was not registered with a drug treatment clinic.

The court will have to establish whether these circumstances occurred at the time of signing the deed of gift, and not before and after it. It is necessary to prove that when signing the agreement, the donor understood the significance of his actions and could direct them - it is advisable to ask for an examination, forensic psychiatric (including post-mortem)

There will be no grounds to recognize the gift as invalid, If:

• the donor was not declared incompetent
• was aware of the nature of his actions

(Appeal ruling of the Moscow City Court dated August 14, 2013 in case No. 11-22626.) It will be useful to draw the court’s attention to the fact that the donor signed the agreement himself, which can be confirmed by witnesses, a notary (if there was one!), and a handwriting examination.

If a donation is recognized as being made under the influence of a mistake (under Article 178 of the Civil Code of the Russian Federation)

If the donor did not understand all the consequences of the actions taken, for example, the grandfather was not explained that after donating the apartment to his neighbor, his grandchildren would not be able to use this apartment. Often the arguments boil down to:

The donor had no intention of donating the apartment, because he did not understand the legal nature of the contract. We are looking for evidence that the donor was not mistaken about the essence of the gift:

• for example, he signed a power of attorney for the alienation of an apartment and the donation agreement itself
• we prove the normal state of health of the donor (it is worth involving witnesses and attending physicians, we present medical documents, you will probably have to turn to a forensic psychological and psychiatric examination)

If the deed of gift is concluded on unfavorable terms for the donor. The courts establish:

• objectivity of the reasons for donation, taking into account the age and financial situation of the donor
• whether the donor’s only home was the donated one
• does the agreement take into account the right of lifetime use by the donor of the premises?
• was the donation agreement notarized (that is, were the consequences of the donation explained) (Appeal ruling of the Moscow City Court dated February 26, 2013 in case No. 11-6531/13.)

What are the deadlines for challenging a donation?

You can challenge the fact of a gift and recognize the transaction as void within 3 YEARS from the date of registration of the deed of gift.

If, after three years, circumstances become known that clearly prove the insignificance or illegality of the donation, then:

• You can defend your position by proving that the plaintiff did not know about the agreement (in such cases, the 3-year period begins from the moment the plaintiff learned about the concluded deed of gift).
• Only an interested person who is not the donor (relatives, heirs) can extend the limitation period.
• but, if more than 10 years have passed since the transfer of ownership under the deed of gift, then no terms will be restored.

If more time has passed, there is practically no chance of recognizing the existing gift agreement as void.

• The exception is the situation when the donor wants to revoke the deed of gift, and the donee resists this - for such cases, the statute of limitations is 5 YEARS.
• Third parties may file a claim to declare the transaction illegal within 1 YEAR after the day the relevant circumstances became known.

Supporting documents

The process of proof is very complex. Applicants will have to prove the illegality or insignificance of the gift. It is necessary to submit documents that will confirm the intent of the donee or the fact that the donor was completely unaware of the meaning of his actions:

• examination mental state donor
• medical records
• receipts confirming receipt of money for the “donated” apartment
• documents declaring the donor incompetent
• certificates from law enforcement agencies
• witness statements

The deal is being challenged in court. It is difficult to challenge a deed of gift, but it is quite possible if there is appropriate evidence.

If you have questions about the topic of the article, please do not hesitate to ask them in the comments. We will definitely answer all your questions within a few days. However, carefully read all the questions and answers to the article; if there is a detailed answer to such a question, then your question will not be published.

Each property has its own value. Pay attention to the features of the cadastral value of real estate. She has great importance, since taxes will depend on this. Who can challenge the cadastral value? It is best to contact specialists who will help you solve this problem. You can choose an appraiser who can analyze all the features of the property and land plot. Let's consider why it is worth challenging the cadastral value of property, when exactly it is beneficial, and how much it costs to challenge it.

Main features of the event

Why do you need to challenge the cadastral value? The amount of taxes that you will regularly pay depends entirely on it. For example, if you live in Moscow, and the value of the property according to the cadastre is 10 million rubles, then the tax will be 0.1 percent. But if the cost varies from 10 million to 20, then the tax increases and is already 0.15 percent. At first glance, it may seem that the difference is small, but for the year from such a large amount the tax payment is significant. That is why in some cases there is a benefit in challenging the cadastral value of real estate. At the same time, the cadastral tax increases every year, which also negatively affects the payment of taxes.

In order to challenge the cadastral value of housing, you need to go to court. Rosreestr will create special commissions (the number of people may vary) that will look at your case again. In order for the court to open a case on this issue, you need to find a property appraiser who will help indicate the value of the property at the time of the examination. But the cost of the appraiser's work is quite high. For his work you will have to pay at least 40 thousand rubles.

But the commission may refuse to challenge the cadastral value of the property. It is then that you will have to go directly to court. And then this process will cost you even more. Approximately 70 thousand rubles. You can submit the documents that the appraiser provided to you to the court. But please note that you will also have to pay additional legal fees.