Do I need to pay and is alimony charged for the sale of an apartment?

Income tax refunds have been one of the most popular topics in real estate and taxation for years. Questions about the payment of alimony and financial support in this situation are no less relevant. When collecting maintenance, the question arises as to whether alimony is withheld from the property tax deduction in 2018.

Income and property benefits

Both sides in the issue of alimony have their own goals. The recipient aims to increase the amount of deductions when collecting funds, and the payer aims to maintain a sufficient and decent standard of living.

Tax compensation is controversial in relation to the collection of alimony when purchasing an apartment or purchasing another type of housing. The deduction is provided in one payment to the applicant's account or gradually through exemption from payment of payroll tax.

The deduction itself is a kind of help for real estate buyers or those who build residential buildings on their own. Compensation is provided in a strictly defined amount based on the amount of taxes paid.

Resolution 841 of July 18, 1994 states that child support in a situation where the parents divorce is withheld from any type of salary and from its entire amount.

Court practice

If the payer receives a certain percentage paid for the purchase of real estate through the employer, the deduction may indeed be included in the established amount of alimony. For example, nine years ago in Chelyabinsk a court order was issued to withhold deductions in favor of alimony payments.

The defendant challenged the actions of the bailiff regarding the withholding of payments from the property compensation received, but his claim was not satisfied.

In current legislation the issue is more than ambiguous. Much depends on the specifics of enforcement proceedings and how citizens pay child support to their family. In case of malicious non-payment, the probability of deduction of alimony from the deduction is higher.

Cases of legal collection of deductions

You can receive a tax deduction not in the full declared amount due to withholding of alimony in the following cases:

• Registration of property compensation through the employer is a deduction of tax against wages. Since alimony is withheld from the entire salary, a certain part of it will also be collected from income tax.
• Registration of a deduction in a one-time payment if there is arrears in alimony payments. If the payment debt arose due to the fault of a citizen liable for alimony, the amount of the debt can be recovered from any bank account.

An appeal in the first case is unlikely to be satisfied, since alimony is deducted from the salary amount, and since it has become higher, this means that the amount of the deduction will also be included in the deduction of alimony.

The presence of arrears in child support payments is exclusively a violation of an obligated citizen. Recently, enforcement measures against willful defaulters have become significantly tougher, and the powers of bailiffs in relation to debtors have expanded.

In case of debt, real and movable property and financial assets in bank accounts may be seized if the payer deliberately denies and does not fulfill his obligations and does not pay alimony voluntarily within the prescribed period. Of course, the requirement to fulfill obligations is supported by an executive document: an agreement, order or court decision.

If there is such a debt and a writ of execution, the bailiff can block any financial funds that are available in the debtor’s bank account to pay off the debt. Tax compensation is no exception.

Important! The actions of the bailiff in this case will be legal only when the formation of debt through the fault of the alimony-obligated citizen is proven.

Evidence of the payer’s guilt in creating a debt and malicious non-payment is:

• concealment of existing real and movable property;
• concealing the amount of income, having gray earnings without official employment;
• moving or taking on a new job without adequate notice of the change;
• deliberate refusal to work with official employment;
• lack of response to calls to bailiffs.

If the payer is found not guilty of accumulating arrears in alimony payments, not only may the existing debt be reduced, but the payer himself may be released from the debt.

Cases of illegal collection of deductions

When paying tax compensation in a lump sum to a bank account and when paying alimony in good faith, it is impossible to deduct them from the deduction.

Regardless of whether the benefit is issued after the purchase of an apartment, a private house, a room or part, a plot of land or after repairs and decoration, in the absence of debts it does not represent the type of income from which alimony can be withheld.

The deduction is not listed in the Schedule of Resolution 841, and also does not apply to periodic payments and does not apply to the type of salary. It can be classified as other tax income and benefit.

How to appeal a bailiff's decision

It is important to understand that collecting alimony from a one-time payment of property compensation in the absence of debt is unlawful. The actions of the bailiff can be appealed by a bona fide alimony payer.

The application must be submitted to the head of the bailiffs. The application to appeal the actions of the executor indicates the date when the executor approved the alimony order.

The application must indicate that the resolution is illegal based on Resolution 841 with a list of types of income. And also the payer must indicate the period for which he is the payer of alimony and emphasize the absence of debts.

At the end of the statement, they must indicate that, guided by Article 121 of the Federal Law, the payer is acting in the interests of his rights. In this case, it is necessary to know the surname and initials of the bailiff, the date of the decision.

lawyers

Despite the apparent clarity of the issue, judicial practice still remains ambiguous. Lawyers give a simplified explanation in this matter: the amount of returned personal income tax is not a source of income for the payer. This is his personal money, which he once paid to the budget when purchasing real estate or building materials.

Tax deductions, including social ones, do not constitute a government subsidy. This is only the return of those funds that have already been paid by the citizen, and therefore are not his income.

However, if there is a debt for which the payer is at fault, the amount may indeed be withheld. But only the amount of the debt, and not the current payments for the maintenance of a minor child.

For example, if a citizen who has debt through his own fault were to win the lottery, then the amount received could also be collected from the debt after tax withholding, but current child support payments could not be withheld.

Conclusion

Property tax deduction is not income from which child support can be withheld. However, when receiving compensation through an employer, it is included in the increased salary amount and cannot but participate in the calculation of alimony.

A conscientious payer of alimony will not pay it from the deduction only if it is received at a time. If the deduction is obtained at a time when there is a debt for alimony payments, the amount of the debt will be withheld. Before filing a deduction, it is better to pay off existing debts that arose through the fault of the payer - this will avoid many difficulties.

Is alimony deducted from taxes?

Alimony can be calculated in different ways. When paying benefits, disputes often arise about whether alimony should be calculated as a tax deduction. Let's consider what a tax deduction is, when it can be assigned and in what order it is carried out, and also when, when paying alimony, it becomes necessary to take into account the tax deduction when calculating the amount of alimony.

What is a tax deduction and when is it available?

According to Russian law, all officially employed citizens are required to pay tax, which currently amounts to 13% of total earnings. In some cases, taxation may be reduced and part of the tax paid will be offset as a tax deduction.

A tax deduction refers to the amount by which an employee’s taxable income is reduced. The excess tax amount transferred is returned to the employee. Tax legislation provides for five areas in which it is possible to obtain a deduction.

These include:

• the social sphere, which includes charity, education of citizens themselves and their children, treatment costs and pension savings;
• some types of professional activity, for example, private enterprise, award-winning authorship;
• property costs incurred when purchasing an apartment, payment of mortgage interest and other expenses related to real estate;
• standard direction, when the provision of a deduction is provided in a fixed amount for a certain category of people: citizens raising minor children, who have become partially disabled as a result of a serious injury, as well as persons with a special status;

• investment direction associated with income received from investments in securities.

When collecting alimony, you most often have to deal with the need to take into account funds received from the property tax deduction, child social deduction, as well as the standard deduction.

Methods for calculating tax deductions

In order to receive a tax benefit, an employee must collect the necessary documents and submit them to the tax office along with the application. For example, when receiving a property deduction, you must present:

• agreement on the transaction for the purchase of housing;
• mortgage agreement;
• act of acceptance of purchased housing;
• documents confirming payments made for real estate and obtaining a mortgage loan.

After reviewing all submitted documents, the Federal Tax Service issues the applicant a Notice of confirmation of the right to a property deduction.

The tax deduction is returned to the employee in two ways:

• by compensating for overpaid tax in the form of a one-time amount, the funds are transferred to the payer’s bank account or his bank card;
• by canceling the collection of personal income tax for some time.

In the first option of receiving a deduction in a one-time amount, you will need to submit to the Federal Tax Service an income tax return with a monthly breakdown, which is issued by the company’s accounting department, and submit an application there for the refund of the excessively transferred amount of tax to the bank account specified in the application.

In the second method of obtaining a deduction, you should immediately contact the accounting department of the enterprise after receiving the Notification from the tax service about the right to a tax benefit to adjust the collection of VAT.

You can receive a deduction only for the three-year period (for each year separately) preceding the year in which the application was submitted.

In accordance with the Government Decree of the Russian Federation No. 841 dated July 18, 1996, which states that alimony for child support is calculated from all the payer’s income specified in the list established by law.

It includes the following types of income:

• official wages, as well as bonuses and various allowances calculated by the enterprise’s accounting department;
• payments in connection with vacation and illness (based on sick leave);
• pensions and scholarships;
• amounts paid in the form of financial assistance;
• funds from rental housing;
• other income.

The returned amount of the tax deduction is not directly included in the legally adopted list of income from which alimony is required to be paid.

Mechanism for calculating alimony

Alimony can be paid in a constant amount, the amount of which is determined in a joint agreement of the parties, drawn up on the basis of voluntary wishes.

Another basis for the payment of alimony is a court decision or court order setting the calculation of payments as a percentage of the payer’s income. By the way, a fixed amount of alimony can also be imposed by a court by force if the payer has unstable earnings or is generally looking for work.

When alimony is paid in a constant amount, independent of the payer’s income, there are no further questions regarding the determination of their amount.

Withholding of alimony from wages is carried out by the accounting department of the enterprise upon the presentation of a writ of execution or an application from the employee himself.

To calculate the alimony amount to be paid, tax-exempt income is taken, i.e. First, personal income tax is withdrawn from the employee’s total income, and then the required percentage of alimony is taken from the remaining amount of income.

If part of the tax is returned to the payer in the form of a deduction, then the question arises where to include this amount: to his income, from which alimony should be paid, or considered simply as compensation for overpaid tax. Let's figure it out.

When does the amount of alimony include tax deductions?

If the received increased salary is attributed to the income of the alimony payer, then alimony should be collected from it. This is what happens in practice.

With another method of receiving a deduction in the form of a one-time transfer to a bank account of the entire amount accumulated during the reporting year, it will not be possible to classify it as periodically received income.

It is especially difficult to attribute a lump sum of property deduction received when purchasing an apartment to income. It significantly exceeds the payer’s basic income, because

deductions can be calculated not only on the cost of the apartment itself, but also on interest on the mortgage.

Alimony can be collected from this amount in each situation individually. For example, if the payer has a large debt for alimony, then his bank account may be seized and the deduction amount transferred to him may be collected to pay off the debt.

Features of calculating the tax deduction for children

The child tax credit is a standard deduction. It is not related to the taxpayer’s salary, and reduces taxable income by a fixed amount established by law:

• the first two children are entitled to a reduction in taxable income in the amount of 1,400 rubles for each child;
• for the third child, taxable income is reduced by 3,000 rubles.

The deduction is carried out until the income during the year with an accrual total is equal to 350 thousand rubles. The provision of such a deduction is only available to parents who can confirm the costs of their children.

These include:

• minor children;
• disabled children;
• also children studying full-time at an educational institution, provided that they are no more than 24 years old.

Providing funds for the child is the main condition for receiving the deduction, regardless of whether the parent is married to his mother.

Even if the parents are divorced and the father regularly pays child support, he has the right to a tax break.

To do this, he must present to the tax office evidence of payment of alimony: a certificate from the accounting department about the transfer of alimony, an alimony agreement between the parents on the voluntary payment of funds, transfers to the child’s card, etc.

When receiving a Notification from the Tax Service about the right to a child benefit, you should decide on the method of receiving the deduction. In order not to subject the amount received to inclusion in additional income, it is better to arrange a transfer of funds to a bank account at the end of the tax period.

Last changes

In 2023, there are no significant changes in legislation on this issue.
Our experts monitor all changes in legislation to provide you with reliable information.

Will alimony be charged for the sale of an apartment in 2023?

The issue of alimony obligations becomes especially acute when there is a need to sell real estate - an apartment or a house.

Most often, the amount received from the sale of property is quite high, and therefore it is important to find out whether part of it is subject to alimony payments or not. The task of family law is to maintain a fair balance between the parties to alimony relations.

Therefore, the legislator regulates a number of cases when alimony is not collected from the sale of an apartment, and also provides for situations when it is simply necessary to make payments.

What is alimony

Article 78 of the Family Code of Russia states that the father and mother are responsible for the maintenance and provision of minor children.

In turn, the payment procedure is determined by them independently or in court if the parties have not reached an agreement.

Alimony is withheld from the salary and other income of the parent, a detailed list of which is indicated in Decree of the Government of the Russian Federation of July 18, 1996 No. 841.

Find out more about what alimony is.

Payment of alimony from the sale of an apartment

The problem of collecting alimony from sold real estate has given rise to many rumors and speculations.

The parties to alimony relationships are confused and simply do not know whether they need to pay alimony when selling an apartment or not.

In accordance with Article 82 of the RF IC, the types of profit from which alimony to support minor children should be withheld are determined by the Government of Russia.

Thus, the Family Code itself does not contain comprehensive information about what types of earnings payments should be collected from. This information is specified in the Decree of the Government of the Russian Federation of July 18, 1996 No. 841, which approves a detailed list of sources of income from which payments for the child must be made.

No. 613 introduced subclause “o”, according to which payments are withheld from the amounts of profit that were received as a result of concluding civil contracts, income from work and services rendered.

Thus, the legislator approved that alimony payments are made not only from the parent’s salary, but also from other income received by him.

Based on the above, we can conclude that alimony is withheld from the sale of various types of property, including the sale of a house or apartment. But this statement cannot be interpreted literally; only the format of the transaction fits the description. In fact, the norms of this act are not always applicable to the issue of the sale of an apartment by the subject of alimony obligations.

Relations in the area of ​​child support obligations between parents and children are established in Section 5 of Chapter 13 of the RF IC. In turn, Article 81 specifies the amount of payments for minor children in relation to the person’s salary. The types of income from which financial resources are withheld are reflected in another act - Decree of the Government of the Russian Federation dated July 18, 1996 No. 841.

Regarding the payment of alimony under paragraph 2, subparagraph “o” of the above resolution, the highest judicial body of Russia expressed its legal position. Thus, the Constitutional Court of the Russian Federation issued a Ruling on January 17, 2012.

No. 122-О-О, according to which alimony is calculated from the profit that was received by a person under those agreements, by signing which a citizen exercises the right to use his abilities and property for economic activities legalized by law.

Why you don’t need to pay alimony on the sale of an apartment

Justice is one of the main principles that guides the legislator in his rule-making activities.

In family law, the issue of alimony relations is important, since we are talking about the maintenance and provision of minors.

However, when the need arises to sell real estate, it becomes unclear whether to make payments from the amount received or not.

When a citizen sells an apartment, most often he does it with the aim of purchasing new real estate, for example, in another area of ​​the city. But how to exercise this right if you have to pay alimony? Most likely, the remaining funds are simply not enough to purchase equivalent housing.

In fact, the sale of a house or apartment cannot be called enrichment, since the property is transferred into a cash equivalent. After all, the person previously owned property, which means he did not earn income. Thus, the norms of the Tax Code of the Russian Federation do not apply to alimony.

The definition of the Constitutional Court of Russia dated January 17, 2012 No. 122-О-О stipulates that alimony is not assessed on those incomes of a person that were not received by him due to employment.

If the sale of an apartment or other real estate was of a one-time nature, alimony is not collected from the amount of money received from its sale.

Cases of payment of alimony from the sale of real estate

There is no need to pay alimony from the sold apartment. However, there are circumstances when payments must still be made. Such cases include activities when a person makes money from the purchase and sale of real estate, in other words, is engaged in real estate activities, the main goal of which is to make a profit.

Alimony is withheld if:

• a citizen purchased an apartment, renovated it and sold it at a price higher than the original price;
• a large plot of land with buildings was purchased, which was divided by land surveying and sold;
• a person acquired ownership of an apartment for the purpose of renting it out.

Thus, the activity of the subject of alimony relations is aimed at generating income; in fact, this is his work activity. This means that his actions do not fall under the Determination of the Constitutional Court of Russia dated January 17.

2012 No. 122-О-О, which imposes on the person the obligation to pay part of the finances received as a result of the sale of real estate.

The recipient of alimony has the right to sue and recover funds, but they will be withheld not from the total value of the property, but from the final profit.

Real estate under debt obligations

If the alimony payer does not fulfill his obligations and does not make payments for a long period of time, bailiffs take over the case. Collection of funds is carried out forcibly. First of all, the debtor's bank accounts are subject to arrest, then valuable property.

Seizure of real estate is possible in the most extreme cases, when it is not possible to repay the debt obligation in other ways. In addition, the apartment should not be the only housing for a citizen.

The property is to be sold at auction, and the proceeds will be used to pay off the debt. Find out more about how alimony is collected.

Property instead of alimony

In accordance with Article 104 of the RF IC, the payer of alimony has the right to transfer property rights to an apartment or other real estate to the recipient as payment. This solution allows you to avoid monthly charges and once and for all resolve the issue of providing for a dependent.

However, it is possible to pay for alimony with living space only if both parties have reached an agreement on this issue. You can transfer real estate by concluding a gift agreement.

Legal proceedings

Decisions in cases of withholding alimony from the sale of real estate are made by the court after a detailed study of the evidence of the parties.

If during the proceedings it turns out that the goal of the alimony payer was to make a profit, he is engaged in real estate activities or conducts similar transactions systematically, the court will side with the plaintiff and decide to pay part of the funds in favor of the dependent.

If the purchase and sale was one-time, and the person did not have the goal of obtaining material benefits or enriching himself, the claim for withholding alimony will not be satisfied. In general, judicial practice indicates a positive resolution of cases for those parties whose interests were not selfish and illegal.

Conclusion

The legal illiteracy of citizens and lawyers in cases of alimony payments from sold real estate gives rise to many rumors. This is largely due to inaccuracies in legislation. In turn, a comprehensive study of the issue allows you not only to avoid misunderstandings, but also to save your time and finances.

Alimony from the sale of an apartment. Arbitrage practice

• In this article we will talk about whether it is necessary to pay alimony from the sale of an apartment and what is the current judicial practice on this issue.
• The question of whether alimony is paid from the sale of an apartment worries not only alimony payers, but also alimony recipients.
• Well, let's look in detail at whether it is currently necessary to pay alimony from the sale of an apartment.
• By the way, before I forget, I recommend subscribing to my community to stay informed about important changes and updates on this topic.

To be honest, for a lawyer who constantly “cooks” in this mess, there is, of course, nothing unusual in this matter. Problems arise for ordinary citizens.

And this is due, first of all, to the fact that information about whether alimony is paid from the sale of an apartment, whether alimony must be paid from the sale of an apartment, etc. People search primarily on the Internet.

After all, why pay a lawyer for a consultation when you can search for information on the Internet yourself and, thus, save the notorious 1000 rubles.

But many do not understand that there is a catch in this desire to save money. The fact is that our legislation is quite unique and, it would seem, the same question of whether it is necessary to pay alimony from the sale of an apartment is, in the opinion of the average person, regulated by different legal acts.

1. The question of whether alimony is paid from the sale of an apartment is precisely a clear confirmation of the lack of unity of opinion among professional lawyers.
2. Unlike other authors and lawyers who boldly reprint information from each other about whether it is necessary to pay alimony from the sale of an apartment and limit themselves to citing regulatory sources, I will allow myself and you, too, to look a little further, namely, to consider the judicial practice on alimony from the sale apartments.
3. However, first things first.

Let's first look at the normative component of the issue. This will simplify our understanding of the current judicial practice regarding alimony from the sale of an apartment.

in the absence of an agreement on the payment of alimony, alimony for minor children is collected by the court from their parents monthly in the amount of: for one child - one quarter, for two children - one third, for three or more children - half of the earnings and (or) other income of the parents.

According to Article 82 of the Family Code of the Russian Federation, the types of earnings and (or) other income that parents receive in rubles and (or) in foreign currency and from which alimony is withheld for minor children in accordance with Article 81 of this Code are determined by the Government of the Russian Federation Federation.

So, the Decree of the Government of the Russian Federation of July 18, 1996 No. 841 approved the “List of types of wages and other income from which alimony for minor children is withheld.”

According to subparagraph “o” of paragraph 2 of this List

Withholding of alimony is made from the amounts of income received under contracts concluded in accordance with civil law, as well as from the implementation of copyright and related rights, income received for the performance of work and provision of services provided for by the legislation of the Russian Federation (notary, advocacy, etc. .).

So, the plaintiffs in cases of collecting alimony from the sale of an apartment are trying to bring their evidence base precisely under the above item of the List, referring in passing to Article 208 of the Tax Code of the Russian Federation, which is incorrect.

Look here. In accordance with subparagraph 5 of part 1 of article 208 of the Tax Code of the Russian Federation

For the purposes of this chapter, income from sources in the Russian Federation includes: income from the sale of real estate located in the Russian Federation;

The key phrase here is For the purposes of this chapter. That is, the reference to the tax code of the Russian Federation in this case is incorrect, since income from the sale of real estate located in the Russian Federation is recognized as income from sources in the Russian Federation only for the purposes of the tax code of the Russian Federation, but not for the purposes of calculating alimony.

Well, now you know whether the sale of an apartment is income for alimony. It seems that I am speaking common truths.

Then why do so many disputes arise in practice, and why does judicial practice regarding alimony from the sale of an apartment know many examples when claims for the recovery of alimony from the sale of an apartment are satisfied by the courts?

But the fact is that at one time this issue was the subject of consideration in the Constitutional Court of the Russian Federation (Determination of the Constitutional Court of the Russian Federation dated January 17.

2012 No. 122-О-О “On the complaint of citizen Vladimir Nikolaevich Gnilomedov about the violation of his constitutional rights by subparagraph “o” of paragraph 2 of the List of types of wages and other income from which alimony is withheld for minor children”).

So, in its Determination, the Constitutional Court of the Russian Federation indicated that

taking into account the need to ensure a balance of interests of both parties to the alimony relationship, alimony is subject to withholding from the income received by the payer only under those contracts concluded in accordance with civil law, by concluding which a person exercises the right belonging to everyone to freely use their abilities and property for economic activities not prohibited by law , as well as the right to work (Article 34, part 1; Article 37, part 1 of the Constitution of the Russian Federation).

Alimony cannot be collected from income received by a citizen outside of connection with his economic activity, in particular, in one-time transactions for the sale of real estate (apartment, land plot, garden house, etc.)

• Accordingly, payment of alimony from the sale of an apartment should be made only if the plaintiff proves that the defendant sold the apartment solely for the purpose of making a profit.
• If, some time after the sale of the apartment, the defendant bought himself a new home, then in this case there will be no grounds for satisfying the claim.
• Also, a claim for the recovery of alimony from the sale of an apartment should not be satisfied if the defendant has sold his only home and is now looking for a new home.
• You probably have a question - if the plaintiff still manages to prove his case, then how will the court determine the amount of alimony?

In my opinion, economically reasonable income should be considered the difference between the income received from the sale of an apartment and the cost of purchasing this apartment. This is quite logical.

However, the Constitutional Court of the Russian Federation did not clarify this issue. Unfortunately, I also did not find any clear judicial practice on this issue. If you can share, I will be grateful to you.

1. When deciding whether alimony is paid from the sale of an apartment, you need to understand that in the vast majority of situations, the alimony payer sells the apartment with a view to subsequently purchasing a new home.
2. And after paying alimony, the majority of those who sold their only home may simply not have enough money to buy a new one.
3. That is why withholding alimony from the sale of an apartment can seriously harm the interests of the alimony payer, leaving him without housing.
4. In addition, many of us forget that, according to paragraph 4 of Article 60 of the Family Code of the Russian Federation

The child does not have ownership rights to the parents' property.

The purpose of paying child support is the maintenance of the child, and not the child’s acquisition of money from the sale of real estate, and therefore unjust enrichment of the child is not permissible.

Alimony from the sale of an apartment. Arbitrage practice.

Appeal ruling dated 10/07/2013. Judicial Collegium for Civil Cases of the Supreme Court of the Republic of Tatarstan in case No. 33-12144/2013

The Judicial Collegium for Civil Cases of the Supreme Court of the Republic of Tatarstan, composed of presiding judge R.V. Shakiryanov, judges R.R. Khasanshina, R.S. Ibragimov, with the secretary of the court session V.V.

Sadreyeva, considered in open court, based on the report of judge R.S. Ibragimov, the civil case on the appeal of A.N. Zakirova on the decision of the Mamadyshsky District Court of the Republic of Tatarstan dated July 29, 2013, which decided: to satisfy the application of Zakirova A.N. to recognize the refusal to withhold alimony as illegal. A.N. Zakirova applied to the court to declare the refusal to withhold alimony illegal. A.N. Zakirova filed an application with the Mamadyshsky ROSP UFSSP for the Republic of Tatarstan to withhold alimony and debt from the income received by P.A. Kulichikhin from the sale of property owned by him, namely 1/4 share of a land plot and a residential building.

However, senior bailiff N.N. Mironov refused to withhold alimony from the income received by the debtor from the sale of property, pointing out that in accordance with Decree of the Government of the Russian Federation of July 18, 1996 No. 841 on the list of types of wages and other income from which alimony for minor children is withheld, the amount of income from the sale of property is not included in this list.

A.N. Zakirova considered this refusal to be illegal and violating the rights of a minor child. At the court hearing, A.N.

Kulichikhin a sum of money to compensate for what belongs to him.... shares in the right of common shared ownership of a residential building and a land plot, she transferred funds to the settlement account of P.A. Kulichikhin.

He believes that these funds are the debtor’s income, as from the sale of property, they are subject to taxation and withholding of alimony for the maintenance of a minor child.

The representative of the Mamadysh ROSP UFSSP for the Republic of Tatarstan did not agree with the statement, considering the refusal to be legal and justified. P.A. Kulichikhin did not agree with the statement at the court hearing.

Representative P.A. Kulichikhina - A.V. Sharipov did not agree with the statement at the court hearing and showed to the court that the funds transferred to the bank account of P.A. Kulichikhina, in pursuance of the terms of the settlement agreement, cannot fall under the concept of income from which alimony for the maintenance of a minor child is calculated; it is compensation for what belongs to P.A. Kulichikhin's share of a residential building and land plot.

The court rendered its decision in the above wording.

In the appeal, A.N. Zakirova asks the court’s decision to be canceled and a new decision to be made in the case, since the court’s decision is illegal, taken in violation of the norms of substantive and procedural law.

It is indicated that in refusing to satisfy the petition, the bailiff proceeded from the fact that a one-time transaction for the alienation of property is not included in the list of income from which deductions are made.

By virtue of Article 82 of the Family Code of the Russian Federation, it is established that the types of earnings and (or) other income that parents receive in rubles (or) in foreign currency and from which alimony is withheld for minor children in accordance with Art. 81 of the RF IC, are determined by the Government of the Russian Federation. In accordance with clause “o” clause 2 of the List of types of wages and other income from which alimony for minor children is withheld, approved by Decree of the Government of the Russian Federation of July 18, 1996 No. 841 (as amended by Decree of the Government of the Russian Federation of August 15, 2008 No. 613), alimony is withheld, among other things, from the amounts of income received under contracts concluded in accordance with civil law, as well as from the sale of copyright and related rights, income received for the performance of work and provision of services provided for by the legislation of the Russian Federation (notary, advocacy, etc.).

According to the Determination of the Constitutional Court of the Russian Federation dated January 17, 2012 No. 122-0-0, taking into account the need to ensure a balance of interests of both parties to alimony relations, alimony is subject to withholding of income received by the payer only under those contracts concluded in accordance with civil law, by concluding which the person realizes everyone has the right to freely use their abilities and property for economic activities not prohibited by law, as well as the right to work (Article 34, Part 1; Article 37, Part 1 of the Constitution of the Russian Federation).

As follows from the above legal position of the Constitutional Court of the Russian Federation, income received by a citizen outside of his labor and economic activities, in particular, in one-time transactions for the sale of real estate (an apartment, land plot, garden house, etc.) cannot be subject to alimony.

In accordance with the requirements of the Family Code of the Russian Federation, if parents do not provide maintenance to their minor children, funds for the maintenance of minor children (alimony) are collected from the parents in court (Article 80 of the RF IC).

In the absence of an agreement on the payment of alimony, alimony for minor children is collected by the court from their parents monthly in the amount of one quarter of the earnings and (or) other income of the parents per child (Article 81 of the RF IC.)

At the same time, A.N. Zakirova refers to subparagraph “o” of paragraph 2 of the List of types of wages and other income from which alimony for minor children is withheld, including that which, according to the applicant, is due from income received from the sale of a residential building and land plot.

How is alimony collected from the sale of an apartment?

People who know firsthand what alimony is often wonder whether these obligations apply to the property sold. By law, from any income that the alimony payer receives, a certain percentage is withheld in favor of the recipient. However, when it comes to selling property, things are not so clear cut.

In most cases, the sale of property, be it real estate or a car, is not made for enrichment, that is, the person does not receive material benefits from it.

As a rule, when selling something, the alimony payer simply converts kind into money for the subsequent purchase of another object - there was an apartment worth 3 million rubles , now there is a sum of money in hand or in the bank.

In most cases, the amount withheld in favor of the recipient will be very significant, many times greater than his needs, and the main purpose of alimony is maintenance, not enrichment. In addition, the payer will not purchase a worthy replacement for his property with this reduced amount, and therefore will worsen his well-being.

In order to decide what will be more important in court, the law or common sense, it is necessary to understand all the nuances.

According to the Family Code, alimony must be paid only from income. Until recently, there was no mention of the fact that alimony should be withheld from proceeds from real estate.

Not long ago, a clause appeared in a special list mentioning income received under an agreement between individuals. Due to the fact that sales and purchases relate to such arrangements, many uncertainties have arisen.

Lawyers have different opinions about what should be considered income when selling property:

• some believe that the entire amount received in this way is income;
• someone claims that income will be considered the difference between the amounts of purchase and sale;
• There are those who do not consider the amount of property sold as income if it is intended for the purchase of another, but at the same time, if there are no plans for acquisition, they propose to withhold alimony from it.

In order to understand whose point of view is correct and whether it is necessary to pay, it is necessary to decide whether the sale of property can be equated to income.

Since income should increase assets, and when sold they remain at the same level, only their form changes (what was in nature - became the amount of money), all of the above opinions are incorrect. It is not even taken into account that when selling an apartment or car, according to tax law, the seller is required to pay tax.

Alimony payments should not be withheld from the sale of property, either as a percentage or as a fixed monetary amount. The only thing the payer can expect is an increase in payments due to an improvement in his well-being, which may be affected by the sale of this or that property.

What does the decision depend on?

So, if the sale of an apartment is only a one-time transaction, and is not based on the owner’s desire to earn money, alimony is not collected. But if the sale of an apartment is nothing more than a human economic activity aimed at making a profit, things take a different turn.

Examples of such cases are purchase and sale transactions of realtors or people who earn their living in this way. Income received in the course of such activities is considered as an object from which alimony must be taken.

In addition, you must pay under the following circumstances:

• the apartment has been renovated and its market value has increased;
• the land plot was divided into parts that were sold separately;
• After purchase, the property is rented out.

Often, alimony payers try in every possible way to circumvent the law, and indicate understated amounts in sales contracts, or formalize the donation of property, which exempts them from alimony obligations.

How is alimony collected from the sale of an apartment?

Litigation unfolding against the backdrop of alimony payments is a very common occurrence. One such dispute may be the sale of real estate. An important task of the payer in such situations is to prove that the money received during the sale is not income. This can sometimes be very difficult to achieve.

For example, the payer made repairs in his house, furnished it with new furniture and sold it for much more than he bought it for.

With this money, he decided to acquire housing in a new building, but the party receiving alimony filed a claim for this amount in the amount of 25%.

The help of professionals in such conditions will be very useful - the funds spent on services are not commensurate with the amount that the payer may lose. In addition, everything is aggravated by the ambiguity of judicial practice in this area. It is also necessary to remember that you can receive alimony from the sale of an apartment only if the living space is joint property.

Personal property includes:

• property that belonged to a person before marriage;
• property that the other party abandoned in accordance with the procedure established by law;
• property acquired after divorce.

Link to Housing Laws

According to the Family Code, alimony is collected from wages and other income, which are reflected in a special list. The regulatory legal act defining the types of wages and income from which alimony for minor children is withheld is the Decree of the same name of the Government of the Russian Federation dated July 18, 1996 No. 841. In paragraph 2, subparagraph “o” of this resolution, income received under civil contracts, such as a purchase and sale agreement, is indicated.