As an example, there is the case of a certain citizen K. Formally, he was listed as the owner of nine real estate properties. In 2017, his property was seized as part of bankruptcy proceedings. However, the CFO and the new owner avoided registering the property. Thus, the tax service continued to impose taxes on citizen K. And since he stopped paying, penalties were also imposed on him.
The lower authorities considered that since K. was still listed as the owner, he should pay. The Court of Cassation did not agree with this approach.
“When issuing a cassation ruling on the case, the cassation court relied on several factors arising from bankruptcy legislation,” explained Maria Spiridonova, a member of the Russian Bar Association. “First of all, the court noted that the debtor did not have the opportunity to dispose of the property, including the registered property. This restriction derives from the Bankruptcy Law and is valid from the moment the debtor is declared bankrupt. “
In addition, the lawyer continues, the court indicated that a financial manager was appointed as the appropriate authorized property manager, who had the authority to file an application for state registration of the transaction.
“As a result of the findings, the court indicated that the debtor had no reason not to pay property taxes and, at the same time, could not avoid accumulating tax payments, since he did not have the opportunity by law to file a application for registration of the transfer of property through the fault of the financial administrator,” says Maria Spiridonova. “In this situation, the accrual of the tax is due to the slowness of the arbitration administrator, who did not register the transaction in a timely manner. Such inaction can become “on the basis for holding the arbitration administrator responsible for inadequate performance of his duties and powers.”
The lawyer emphasizes: by law, property rights are registered in a person if he is registered in the Unified State Register of Real Estate. “At the same time, the court in this case noted the impossibility of the owner to submit an application for registration of the agreement,” says Maria Spiridonova. “In view of this, the transfer of property by law became impossible without any fault of the owner. Based on this, the court actually indicated that the debtor should not bear burdens if under the law he no longer has powers in relationship with the property, so we can say that the owner is exempt from paying taxes if he cannot actually possess, use and dispose of the property, even in the case of impossibility of registering the agreement by which the property must be transferred “
In turn, lawyer and partner of the Law Group Vladimir Shalaev explained that buyers of property, as a rule, are interested in registering it in their name, since without such registration they will not be able to sell it later. because it will not be theirs to record.
“As a rule, the arbitration administrator, together with the winning bidder, submits a joint application for registration of property rights, or the administrator, for example, sends a power of attorney to carry out registration actions in relation to real estate,” he said. . “In this case, for some reason, this obligation was not fulfilled and, as a consequence, if the tax authority was provided with documents confirming the existence of property rights of another person, even if it was not registered, it had to consider the question of the validity of collecting taxes on goods that in kind passed into the hands of another person.”
