Rent first and then sell.
After the introduction of the new real estate policy, Mr. Guo wanted to sell the house he had bought for three years for various reasons, but thought that it was not cost-effective to pay 5.5% of the business tax and surcharge in full according to the house price, so he agreed with the buyer that the buyer would first move in by lease, and after two years, the two parties transferred the ownership at the agreed price, and the paid lease fee was included in the house price.
Lawyer's comment: This method does not pay full business tax and surcharge, but only deed tax, registration fee and stamp duty. It is feasible. However, due to the great variability of housing prices, if the contract price is different from the housing market price two years later and the housing price rises, it is entirely possible that the owner would rather pay liquidated damages than sell the house. For the buyer, it will bear a lot of opportunity costs. At the same time, the seller may mortgage or sell the house separately, which will have great legal risks for the buyer!
mix the spurious with the genuine
Ms. Wang has a house on hand, and some buyers are willing to pay 550 thousand for it. However, this year's new policy made her feel that after selling the house, the money that fell into her pocket seemed to be much less, so Ms. Li wanted to transfer the house by gift with the help of the intermediary.
Lawyer's comment: The donation and transfer of real estate is a common form in the process of real estate transfer, and it is also a right and behavior of the obligee to dispose of his own property as stipulated by Chinese law. Because the donation and transfer of real estate are completely different from market-oriented transactions, business tax is not levied.
For both parties who are related and really belong to the gift relationship, the gift transfer of real estate is a reasonable way to avoid tax. Its expenses are mainly deed tax, notary fee, registration fee and stamp duty. The deed tax is 65438+ 0.5% of the transaction amount or the assessed amount (the first transaction), and 3% for future transactions; Notarization fee (notarization of gift contract): Chengdu 16 yuan/m2, outside the first ring, inside the second ring 14 yuan/m2, outside the second ring 12 yuan/m2; Registration fee, 80 yuan.
If the real intention and purpose of the two parties to the property transfer is not a gift, but to transfer the property and make a profit, this completely deviates from the legal characteristics of free gift. Then, this kind of behavior will not be a legal and effective gift, but a legal form of gift, which covers up the illegal behavior of evading illegal tax purposes. In the event of a dispute, according to the current law, both parties should bear the responsibility of paying taxes and fines, and even bear criminal responsibility in serious cases. Moreover, in addition to the above-mentioned legal risks, there are still great transaction risks in the actual process of transfer of real estate that is clearly donated but actually bought and sold. For the buyer, how to agree on the payment method is a difficult problem, because the donor can cancel the gift before the transfer of the gift property right, even if the buyer has paid the deposit, it is not binding on the seller. In addition, China's "Contract Law" stipulates: "If the donated property is defective, the donor will not be liable." In other words, if the house received by the buyer has quality problems, it is difficult to ask the original owner for compensation. In addition, the buyer should also beware of the donor's behavior of canceling the gift or not fulfilling the gift obligation.
The contract price is much lower than the actual price.
Ms. Wang, who is going to sell the house, also negotiated a selling price with the buyer through an intermediary. The difference is that the transaction price written in the sales contract is only half of this price, and she wants to pay less business tax in this way.
Lawyer's comment: This method saves the full amount of business tax and surcharge, and still needs to pay deed tax, registration fee and stamp duty. This kind of behavior is a legal form, which covers up the illegal purpose of tax evasion and is illegal. In the event of a dispute, according to the current laws of our country, both parties should bear the responsibility of paying taxes and fines, and even bear criminal responsibility in serious cases.
It took several years to sign the contract before the transfer.
In March this year, Ms. Zhang bought another house with an area of 1.20 square meters in the west of the city, and wanted to sell the house she bought in Caojin Road three years ago. Unfortunately, it just happened to catch up with the introduction of the New Deal. If this 400,000 house is sold for 460,000 yuan, it may cost an extra tax of10.5 million yuan. Ms. Zhang felt that it was not cost-effective, so she negotiated a price with the buyer through the intermediary, and prepared to wait until the house was over five years before going through the transfer formalities to avoid tax.
Lawyer's comment: This method does not pay full business tax and surcharge, but only deed tax, registration fee and stamp duty, which is feasible. However, after signing the contract, if the transaction procedures are not handled in time, over time, there will be many external factors affecting the transaction process, and both parties will face various sudden risks, including policy risks and market fluctuation risks, especially in the case of unstable real estate prices. Once the gap is large, one party loses a lot. And the longer the time, the greater the risk, even if the contract is notarized, it can not avoid the above risks. At the same time, the seller can mortgage or sell the house separately.
It is understood that some second-hand housing agents grasp the psychology of buyers and sellers and make suggestions on how to "reasonably avoid taxes" in order to achieve the goal of closing the transaction as soon as possible. Their common methods are:
1. "Deliberately depress the transaction price" In order to pay less taxes, buyers and sellers deliberately depress the actual transaction price of the house.
Experts remind: for the practice of "deliberately lowering the transaction price", first, it violates the tax policy, and the government will soon strengthen supervision over this illegal act, which is risky; Second, from the perspective of property buyers, when the property is sold again, the first low "purchase price" will widen the bid-ask price difference, but it will increase the selling cost again, which is not worth the loss.
Second, the fake gift-giving method. This is the second-hand housing buyers and sellers in order to achieve the purpose of "tax avoidance", has nothing to do with relatives and friends, but after private transactions, in this name through notarization "gift" property. According to the current policy, the gift transfer only requires the buyer to pay the deed tax of 4%, while the sale transfer needs to pay the business tax of 5.5%, and pay the deed tax and individual tax of 2% or 4% within five years.
Experts remind: In view of "fake gift", relevant laws stipulate that the donor can repent of the property gift between ordinary citizens, except that the charity donation does not repent.
If in the real estate transaction, the two sides deal with "fake gifts" on the surface, once a dispute occurs, the buyer may not get legal support because of insufficient evidence.
Third, "a fake lease is a real deal". Because the tax-free period of real estate has not yet arrived, or it is simply "tax avoidance", buyers and sellers do not go through the formalities of tax payment, transfer and name change according to the regulations after the transaction, and replace the transaction contract with a superficial lease contract.
Experts remind: the real transaction of fake lease is very risky. In the event of a dispute, the injured party is often the buyer.
Fourth, "avoid the second room." Some intermediaries suggested to investors that it is best for couples to write only one name when buying a house, so as to avoid paying taxes on the second house because they don't live by themselves. "Because the notice stipulates that the only house that has lived for more than 5 years is tax-free, the seller can make a fuss about the house. For example, when buying a house, one of the parents, son or husband and wife is the property owner."
Experts remind: once there is an interest dispute between relatives, it is difficult to sort it out.
5. "Agreement on Delaying the Change of Property Rights". This kind of tax avoidance seems reasonable and beneficial, but there are huge legal risks hidden behind it. Careless, it may make the second-hand housing buyers and sellers eventually fall into a "greedy and cheap" situation.
Experts remind: first, the house price has risen sharply, and the seller may breach the contract and no longer handle the house transfer formalities according to the agreed time, with the intention of raising the transaction price or reselling the house; Second, it is possible to handle the house transfer formalities at the agreed time, but it is impossible to handle the transfer formalities for some reasons; 3. If the seller renews the title certificate behind the buyer's back and sells the house to a third person and goes through the transfer formalities, the buyer will not be able to obtain the ownership of the house.
These common "reasonable tax avoidance" behaviors are illegal, leaving serious troubles for the parties. Housing is a huge property, and we should be reasonable and legal when we get it, so that the legitimate rights and interests of citizens can be protected by law. If the procedures and methods at the time of acquisition are illegal, once a dispute occurs, citizens will certainly not get the protection they deserve. Paying taxes at 1% of the total value is actually not high, so there is no need to take risks.
(The above answers were published on 20 15-08-24. Please refer to the actual situation for the current purchase policy. )
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