Why can't the old man leave the property to his grandson?

□ Ding Fenglin, reporter of the top news and Dahe Newspaper

An old man in Zhengzhou left a will before his death, leaving his house to his grandson, and no one else in the family objected to this. When the grandson went to handle the transfer, the tax officer said that the grandson was not within the scope of the legal heirs and could not be handled according to the "inheritance", but could only be handled according to the "bequest". In this case, it is necessary to pay more than 30,000 yuan of deed tax. This makes the grandson wonder: his grandmother's house is left to him, why is he not an inheritance?

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The old man left the property to his grandson and was told when he transferred the property that it was not "inheritance"

Mr. Feng, a citizen who lives in no. 168 Erdao Street in Zhengzhou, died of illness in 2014. Before the old lady died, she left a will and left a property in her name to her grandson, that is, Mr. Feng's son Xiao Feng. The will was notarized, and mr. Feng's family had no objection to the old lady's decision.

After the old lady died, Xiao Feng never went through the real estate transfer procedures. Until June this year, because his children were about to go to school, he needed to provide real estate and household registration information when registering, and Xiao Feng and his father, Mr. Feng, went to go through the real estate transfer procedures together.

"First go to the window of the Housing Authority, they are recorded according to the inheritance, and then go to the tax window, the tax officer said, my son is not within the scope of the legal heirs, it is not an inheritance, it is a bequest, and it cannot be handled according to the inheritance." Mr. Feng said.

So, what is the difference between inheritance and bequesting? According to the provisions of China's tax law, if it is an inheritance, there is no need to pay deed tax, but the bequest is required. After the tax personnel calculated, Xiao Feng needed to pay more than 30,000 yuan of deed tax.

Mr. Feng was puzzled by this, saying that it was a citizen's duty to pay taxes according to law, and he would definitely abide by it. But in this situation he encountered, he should not pay this tax. "This is a grandmother to a grandson, they are all immediate relatives, and the rest of our family has no objection, why is it not an inheritance?"

Response

Grandsons are not within the scope of legal heirs and can only be treated as bequests

In response to Mr. Feng's questions, on the afternoon of July 1, the reporter specifically consulted Ms. Mei, a tax worker who handled business for him at that time.

Ms. Mei explained that according to article 10 of the Inheritance Law, the first order of inheritance is: spouse, children, parents. The second order is: siblings, grandparents, maternal grandparents.

"Because the inheritance is Xiao Feng's grandmother's house, Xiao Feng's father is still alive in the middle, and legally speaking, the legal heir does not include Xiao Feng." This kind of intergenerational will can only be regarded as a bequest, not an inheritance. ”

The reporter also found that in 2004, the State Administration of Taxation issued a "Reply on the Issue of Deed Tax on Inheriting Land and Housing Ownership" issued to the Henan Provincial Department of Finance, which also clearly stated:

1. Deed tax shall not be levied on the inheritance of land and housing titles by legal heirs (including spouses, children, parents, siblings, grandparents and maternal grandparents) as provided for in the Inheritance Law of the People's Republic of China.

2. According to the Provisions of the Inheritance Law of the People's Republic of China, a non-statutory heir who inherits the ownership of the land and house before the deceased's death according to a will is an act of donation and shall be subject to deed tax.

According to these circumstances, Xiao Feng is not within the scope of the legal heirs and should pay deed tax. Xiao Feng also paid more than 30,000 yuan in taxes on the spot.

However, Mr. Feng still did not understand, he believes that since the grandparents of the heirs can be legal heirs, why are the grandchildren not within the scope of legal heirs? "In addition, although I am still alive, my brothers and sisters and I respect my mother's will and have given up the right to inherit the property, so can this right be extended to my child and make him the heir?" On June 29, Mr. Feng applied for an administrative reconsideration to the Zhengzhou Municipal Taxation Bureau of the State Administration of Taxation, and is still waiting for the results.

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Grandchildren only enjoy the legal right of inheritance under certain conditions, and Xiao Feng also has a way to exempt from deed tax

For this incident, Lawyer Yu Jichun of Henan Jichun Law Firm explained that the difference between testamentary succession and bequest is whether the heir is the legal heir of the testator, the heir is the legal heir of the testator, and the last words made are called wills, which are not part of the legal heirs' transfer and testament, called bequests. The legal heirs stipulated in the Civil Code of China do not include grandchildren, and grandchildren only enjoy the legal right of inheritance under specific conditions, which are not met in this case. Since the grandchildren are not within the scope of the legal heirs, it is a bequest to inherit the property in the sense of the elderly.

So, is there any other way for Xiao Feng to avoid paying this tax?

Lawyer Yu gave advice: First of all, for the will made by the grandmother, the grandson Xiaofeng can declare that he refuses to "inherit". Then, Xiao Feng's father's other siblings also made a declaration to renounce the inheritance. In this way, the house will be inherited by Xiao Feng's father and will not have to pay deed tax. In the future, Xiao Feng's father will make a will to leave the house to Xiao Feng, which is also a legal inheritance and does not have to pay taxes.

However, although this can exempt him from paying deed tax, Xiao Feng cannot obtain the property rights of the house now, and his children's schooling will also be affected. In the end, how to choose is up to Xiao Feng to decide.