Who is a member of the family
In the text of the Tax Code of the Russian Federation, the legislator often uses the concept of a family member. In the absence of a special definition in the text of the Code, if it is necessary to determine the meaning of this concept, clause 1 of Art. 11 of the Tax Code of the Russian Federation, according to which the institutions, concepts and terms of civil, family and other branches of legislation of the Russian Federation used in this Code are used in the sense in which they are used in these branches of legislation, unless otherwise provided by this Code.
The need to use a legal definition of the concept in question arises, for example, when applying paragraph 5 of Art. 208 of the Tax Code of the Russian Federation, establishing the withdrawal from the object of taxation of income from operations related to the property and non-property relations of individuals recognized as family members and (or) close relatives. In order to Ch. 23 Tax on personal income is not recognized as income from operations related to property and non-property relations of individuals recognized as family members and / or close relatives in accordance with the Family Code of the Russian Federation, with the exception of income received by these individuals as a result of between these persons treaties of a civil nature or labor agreements.
Considered statute, according to the Definition of the Constitutional Court of the Russian Federation
However, despite the presence in the text of paragraph 5 of Art. 208 of the Tax Code of the Russian Federation, direct reference to the text of a specific regulatory act, following this prescription in practice is very problematic.
Based on the current text of the Family Code of the Russian Federation, determining the composition of persons falling under the concept of a family member is not as easy as it might seem at first glance. Ambiguity of interpretation of Art. 2 of the Family Code of the Russian Federation, in which, for example, spouses are recognized as family members and each of them can be recognized as a family member in relation to his parents, according to representatives of some court instances, means the need to resolve tax disputes arising on this basis using paragraph 7 tbsp. 3 of the Tax Code of the Russian Federation, according to which all ineradicable doubts, contradictions and ambiguities of acts of legislation on taxes and fees are interpreted in favor of the taxpayer (payer of fees) (see Resolution of the FAS of the Moscow District from
Such an algorithm for resolving disputable situations cannot be considered universal for the reason that the Family Code of the Russian Federation itself does not belong to acts of legislation on taxes and fees. For this reason, it is not sufficiently correct (not based on a literal statement of the rule of law) that since the interpretation of the terms of family law is made in order to apply the tax rules of law, all unavoidable ambiguities and doubts of the law should be interpreted in favor of the taxpayer .
Close relatives under Art. 14 of the Family Code of the Russian Federation
3 of the Tax Code of the Russian Federation (see. Resolution of the Federal Arbitration Court of the Moscow District of
Applying paragraph 7 of Art. 3 of the Tax Code, the court does not eliminate the existing in the text of Art. 2 of the RF IC of the ambiguity of the wording, and in fact eliminates the very need to appeal to the RF IC in cases where it is expressly prescribed by the legislation on taxes and fees.
However, the use of any other alternative definition of concepts family and family member for tax purposes is unacceptable due to the presence in the text of the Tax Code of the Russian Federation a direct reference to the definition of this concept, recorded precisely in the text of the Family Code of the Russian Federation. For this reason, it seems unreasonable to refer to the definitions of the concept of the family, as recorded in the law-enforcement and explanatory practice of some departments.
For example, in the Letters of the Ministry of Finance of Russia from
In the Letter of the Ministry of Finance of Russia from
Considering the above, when resolving a dispute about taxation of lump-sum payments by an employer in connection with the death of an employee, family members were recognized, including brother or sister, living together with their parents and those who died in the same family.
It should also be noted that the position of this department in this issue is not unchanged. So, in the Letter of the Ministry of Finance of Russia from
Accordingly, the possibility of adopting other grounds for recognizing an individual as a family member, for example, for the purposes of paragraph
Accordingly, income in the form of immovable property received by an individual as a gift from an individual who is not recognized as a family member and close relative (in accordance with the Family Code of the Russian Federation) in relation to the individual being granted, is subject to tax on personal income tax in okay
It does not matter for the purposes of taxation of the said income:
– cohabitation of the donor and the donee (Letter of the Ministry of Finance of Russia from
– finding a dependent on the donor (Letter of the Russian Ministry of Finance from
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The family includes …
When drawing up various kinds of documents, very often in the “family members” column, many of us do not know what to write. The reasons for this can be many, because family situations are different. The family includes close relatives or not? Should parents be members of a young family consisting of a husband, a wife, and their children? Or how to determine the number of people in a family, if children live separately in a dormitory and study in universities? All these questions should be answered in the legislative documents of the Russian Federation.
Family members: concept. Who is legally a family member
Answers to questions of this kind can be found in the Housing Code of the Russian Federation. It is there specifically prescribed who is part of the family.
Who can be part of a family?
Article 31 of this code states that the family includes persons according to the following characteristics and conditions:
- family members are: the owner of the dwelling, his spouse, children, as well as his parents, if they live in this room. Spouses are persons who are officially registered with the relevant authorities. The category of children may include their own native children, adopted children, foster children, children under guardianship or guardianship, as well as adult children who, under the age of 23, are enrolled in full-time higher education institutions.
- family members are considered other relatives who are infused into the premises of the premises by the owner.
These can be grandmothers, grandfathers, aunts, uncles, nephews, brothers or sisters. In addition to documents on the introduction of relatives in the living space, you must also submit documents that a relative lives on the premises as a family member, and not under a contract of gratuitous or paid accommodation. Without the consent of the owner of the premises, a relative cannot be considered a family member, even if he has an official registration in this premises.
Who are not family members?
It is also important to know who are not family members:
- grandparents and other relatives who live in the territory of the owner without a residence permit or registration.
- persons who have reached the age of majority and legal capacity, according to the law of the Russian Federation (18 years)
- military personnel who, at the time of the decision on the composition of the family, are in line service or are studying in a professional military institution.
- missing or wanted persons.
- convicted persons who are arrested or are serving a sentence in prison.
- Persons who are on compulsory treatment in appropriate institutions (centers for the treatment of alcoholism, drug addiction, schizophrenia).
It is important to know that the family should be characterized as a close relationship between its members, mutual respect, care and care. One of the main properties of the family is the management of the common household, a certain responsibility towards each other, as well as common (but not necessarily) monetary assets. General registration and joint residence does not automatically do all family members. This is important to know and remember, as there are often questions when drawing up a lot of documentation at work or documents related to living space.
New edition of Art. 2 RF IC
Family law establishes the procedure for the implementation and protection of family rights, the conditions and procedures for entering into marriage, termination of marriage and invalidation of marriage, regulates personal non-property and property relations between family members: spouses, parents and children (adoptive parents and adopted children), and in cases the limits provided for by family law, between other relatives and other persons, determines the procedure for identifying children left without parental care, the form and order of their arrangement in emyu, as well as their timing device, including the organization for orphans and children left without parental care.
Comment to Article 2 of the RF IC
The commented article refers to the subject of legal regulation of family law or, in other words, about relations regulated by family law. It should be noted that there is no legal (fixed in the law) definition of a family. At the same time, the legislation of some countries has such a definition. So, Art. 59 of the Code of the Republic of Belarus on Marriage and Family provides that a family is an association of persons related by moral and material community and support, maintenance of a common household, rights and obligations arising from marriage, kinship, adoption.
Distinguish the concept of family in the sociological and legal terms. In a sociological sense, a family is an association of persons based on marriage or kinship, connected by personal non-property and property relations, mutual support and upbringing of children.
In the legal sense, a family is a circle of persons bound by rights and obligations arising from marriage, kinship, adoption, or another form of adoption of children for upbringing. The family in a sociological sense may break up if the actual marital relationship ends, but in a legal sense it may be preserved (for example, the spouses do not actually live together, but legal rights and obligations exist).
As follows from the commented article, the subject of family law, as well as civil law, is property and non-property relations.
Family composition by family code
However, in family law, property relations have a certain specificity, since they are not necessarily cost-based. Thus, when determining the amount of alimony, there is no mutual comparison of property costs made by one family member in favor of another. Similarly, when sharing the common property of spouses in the absence of a marriage contract, the shares of the spouses are considered equal regardless of what the actual contribution of each of the spouses was to the acquisition of this property.
As for the personal non-property relations, they also have certain features. So, in contrast to civil law relations, they are formed only between specific, strictly defined subjects. Relationships governed by family law are inextricably linked with the state of marriage or kinship.
Although personal non-property relations are predominant in family relations, only a small part of them is regulated by law. This is explained by the fact that the main part of these relations lies outside the limits of the law and can be regulated only by the norms of morality. Thus, law, by definition, cannot interfere in personally trust relationships of love, friendship, mutual respect and
The question of the relationship between personal property and property relations is controversial. It should be noted that not all lawyers share the point of view, according to which it is personal non-property relations that prevail in family relations. So according to
The subject structure of family relations is determined by law. These include spouses, parents or persons replacing them (adoptive parents, guardians, carers), children (including adopted children), other relatives (grandfather, grandmother, grandchildren, brothers and sisters, stepfather, stepmother, stepson, stepdaughter) and in some cases – other persons expressly provided for in the norms of family law. The rights and obligations arising from these relations are inalienable and non-transferable.
The subject of family law also includes relations connected with the determination of the form and order of placement in a family of children left without parental care.
Another comment on Art. 2 of the Family Code of the Russian Federation
2. In the Russian legal doctrine, a family is defined as a circle of persons related by personal non-property, as well as property rights and obligations based on marriage, kinship and adoption of children for upbringing.
3. Article 2 of the RF IC establishes the principle of unrestricted application of family law to certain participants in family relations, who are directly named by family members – spouses, children and parents, adoptive parents and adopted children. Relations between other persons are governed by family law in the cases and limits established therein. These are relations between grandfather (grandmother) and grandchildren, sisters and brothers, stepfather (stepmother) and stepchildren, as well as between guardians, carers, foster parents, de facto educators, on the one hand, and their wards – on the other.
Who is part of the family by law?
The family members of the owner of the dwelling are primarily considered to be living together spouses, children, as well as parents of the owner of this dwelling.
If your family needs
And pay attention that spouses are considered, only those whose marriage is registered in the registry office and implies the presence of a record in the act of civil status.
In order to recognize the named persons whom the owner himself has infused into the premises of his property with family members, the fact that they live together with the owner in this room will suffice. At the same time, there is no need for any confirmation of the fact that a joint enterprise is being conducted with all the owners of this dwelling, such as, for example, mutual support of a material nature and
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The second point, according to which other relatives can be recognized as family members of the owner, moreover, the degree of kinship does not matter if the owner himself has brought them into their housing. Such relatives as the owner of the dwelling itself and his family members include grandmothers, grandfathers, uncles and aunts, sisters, brothers, nephews and nieces and dependents who have lost their ability to work.
There are exceptional cases when other citizens, in particular, those who live with the owner, but who do not have the registration of a legal marriage. But not everything is as simple as it may seem at first glance. The fact is that in order to recognize the fact of kinship of all the above-mentioned citizens by members of the family of the apartment owner, in addition to establishing the legal fact of bringing these persons directly to the owner of his dwelling, it will be necessary to find out in what capacity the owner of these persons instilled. As members of your family or simply provided your living space for living on other grounds.
The grounds may be the following: social contract of employment or gratuitous use. This circumstance is established by the court, the basis is the explanation of the parties of third parties and testimony.
Error establishing a database connection
In writing, the contract is fixed on the introduction of the premises. With all this, even the presence of registration of a person at the place of residence, which is produced by the presence of a statement from the owner of the dwelling is not the determining factor in recognizing that person as a family member. This fact the court can only take into account, along with other evidence. In all these cases, you need to understand and if anything is unclear, you can always contact a legal cantor for advice.
Family members of the owner of the dwelling (apartment, room, house) are, as a general rule, the spouse of the owner, as well as his children and parents. To recognize the above mentioned persons, who are the owner of the dwelling, as members of his family, it is sufficient to establish only their cohabitation with the owner in this dwelling and it does not require that they establish a common household with the owner of the dwelling, provide mutual material and other support (clause 11 decisions of the Plenum of the Supreme Court of the Russian Federation from
Other citizens, including those not belonging to the owner by relatives, can be recognized as members of his family if they are moved into the dwelling just in that capacity (Article 31 of the Housing Code of the Russian Federation).
The above-mentioned resolution of the Plenum of the Armed Forces of the Russian Federation clarified that recognizing a person as a member of an owner’s family requires not only physical accommodation in a dwelling, but also the emergence of family relations, characterized, in particular, by mutual respect and mutual care of family members, their personal non-property and property rights and obligations, common interests, responsibility towards each other, the management of the common household (Clause
The fact of moving into a dwelling precisely as a member of the family of the owner is proved by any admissible evidence (testimony, photographs, written evidence).
A person temporarily living in the apartment of the owner, even if it is quite a long time, cannot become a member of the family only on the basis of the length of stay in the disputed dwelling.
The status of a “family member of the owner” may, for example, be grandmothers, grandfathers, brothers, sisters, uncles, aunts, nephews, nieces, and other relatives of the owner. In exceptional cases, any other citizens may also become a family member (as an example, the decision of the Plenum of the RF Armed Forces is a person living together with the owner without registering a marriage).
Return to the table of contents of the article The eviction from the apartment of former members of the family of the owner;
To the review of practice: Eviction from living quarters by the owner of former family members. Arbitrage practice;
Samples of evictions: Claims for eviction from the premises of the owner of the apartment, house.
Family Code of the Russian Federation (as amended on July 29, 2018)
Who is a family member by law?
It is quite obvious that we include all close relatives as members of our family.
The law says that there are different aspects that can assess your family and family members. Some laws state that only spouse or children and parents are recognized as family members. Other laws stipulate that family members include relatives of the second and third lines. So, Art. 69 Housing Code of the Russian Federation indicates that the family members should include children, parents, spouse / spouse of the property owner or tenant of the property. The Federal Law "On the Status of Military Personnel" from
Who is a family member?
In the generally accepted concept of a family member is considered a relative of the first line. Probably, you know that in the family code of the Russian Federation, there is also a mention of related lines, and this mention refers specifically to the issue of inheritance rights. This law determines that there are only 8 inheritance queues. Moreover, each queue has certain kinship. But, it is customary to attribute to the family only the husband and wife, their children, as well as their parents.
That is, we are talking about a small community – the cell of society, which leads a joint household, brings up children, take care of parents.
In fact, the legislative base on this issue is considered to be very extensive. But, if we study it in detail, it is still possible to draw a single analogy. As for the housing code, then everything is not as simple as it seems initially. And most likely, it can be said about the need to finalize this document, since it has interpretations in its composition that allow a family member to name any person, even in the absence of kinship.
How are family members determined?
Naturally, in our country there are a number of legislative bases that define all the provisions relating to the issue of determining the status of the family and family members. However, laws are so different in their content that sometimes there can be difficulties and questions in defining family members. In this case, we recommend that you contact experienced lawyers who can quickly make the process of analyzing exactly your situation, and it is up to you to choose the norms of legislative law that would appeal to your wishes and peculiarities of your business.
In general, in this issue, the legislative framework may be considered imperfect. But on the other hand, for different legal situations, it is necessary to apply different laws, and in each situation, the concept of family members may be different in reality. For example, in the field of housing law, all citizens living together can be family members. In family law regarding inheritance, even distant relatives can be called family members.