The position of the financial department is based on the following:
Point 1 of Article 210 of the Code establishes that when determining the tax base all income of the taxpayer, received by him in both monetary and in kind, is taken into account.
According to Article 41 of the Code, income is recognized as an economic benefit in cash or in kind, taken into account when it is possible to assess it and to the extent that such benefit can be assessed and determined for individuals in accordance with Chapter 23 "Personal Income Tax" of the Code.
When donating, the donee obtains economic benefits in the form of a gift or property right received as a gift or in the form of his exemption from property obligations.
Income in the form of this economic benefit is subject to tax on personal income in according with the established procedure. Only in cases stipulated by paragraph 18.1 of Article 217 of the Code, income in the form of donations are exempt from taxation.
In the case of donating real estate (share in an apartment), the value of the economic benefit received by an individual who is awarded by an individual, taken into account when calculating the tax on personal income, is determined by the market value of the property received as a gift.
The jurisprudence of courts of general jurisdiction is also on the side of fiscal bodies (for example, the Appeal Decision of the Moscow City Court of 10 April 2015 in case No. 33-11479 and of 20 January 2015 in case No. 33-1222 / 2015; the Appellate Determination of the Samara Regional Court of February 17, 2015 in case No. 33-1821, Appeal of the Supreme Court of the Chuvash Republic of February 9, 2015 in case No. 33-217 / 2015, etc.).
But is this position correct?
By general rule, income is recognized as an economic benefit in cash or in kind (Article 41 of the Tax Code).
But not every economic benefit will be recognized as the income of an individual, but only one that can be estimated and determined according to the rules of chapter 23 of the Tax Code (Article 41 of the Tax Code). As pointed out by the Presidium of the Supreme Arbitration Court of Russia in Resolution No. 3009/04 of August 3, 2004, the possibility of taking into account the economic benefit and the procedure for its assessment as an object of taxation by a tax should be regulated by the relevant chapters of the Code.
So, the economic benefit is recognized as the income of an individual, if three conditions are simultaneously observed:
1) it is subject to receipt by money or other property - in our case this condition is observed;
2) its size can be estimated - in our case this condition is met;
3) it can be determined by the rules of Chapter 23 of the Tax Code of the Russian Federation - while in our case this issue has not been settled in the Tax Code even now (as clause 1 of Article 211 of the Tax Code of the Russian Federation is not applicable to transactions between individuals).
Considering the foregoing, I believe that the Tax Code of the Russian Federation at the moment does not contain rules allowing additional taxation of personal income tax on personal data transactions for gift transactions between individuals.
It is not strange, the Supreme Court of Russian Federation in the Decree of May 20, 2014 N 34-KG14-3 supports this position.
I hope that the Finance Ministry and the Federal Tax Service will pay attention to this problem and initiate the introduction of appropriate changes in the Tax Code of the Russian Federation, but for the time being they will stop illegally massively adding taxes to citizens who receive real estate as a gift from individuals. I also hope that the courts of general jurisdiction will pay attention to the position of the Supreme Court of Russian Federation on this issue.