Earth transfer to a farm his members

In the publication answers to questions are given: How earth transfer to a farm is made out by his members? Whether it is possible to transfer to a farm the sites provided for a personal part-time farm? Than threatens if not to change a designated purpose of use of the land lots? Whether the sites received by a farm will be to join in FSN calculation?

Farm (further – FH) – this yuridicheyosky person who is created by one or several citizens of Ukraine (relatives or members of one family) for production of commodity selskokhoyozyaystvenny production, its processing and realization for the purpose of receiving profit (Law No. 973 Art. 1). Earth of a farm consist of the land lots, which (Art. 12 of the specified Law):

• FH as belong to the legal entity on an ownership right;

• FH under lease are used;

• belong to citizens – to members of FH on the right of a chastyony property.

The lands provided by it for maintaining a farm or received in a property in the course of a raspayevaniye of collective agricultural enterprises can belong to the land lots of members of FH. Using a form a question – the answer, we will tell in more detail about process of transfer by members of FH of the earth to the economy.

How such transfer is made out?

The law No. 973 doesn’t speak, as transfer should be issued. The only thing that we learn from this doyokument – a right of possession and usings the land lots which are in a property chle­nov FH, carries out only a farm (h. 2 Art. 12). Therefore, having analysed zakonodatelyyony base and established practices, we will call possible options of transfer of a right of possession and using FH earth.

1st option: the conclusion of the lease contract of zeyomelny sites (Goskomzem’s letter from 02.03.06 of No. 6-13-312/157). Members of FH and an economy in the person of his chairman will be the parties of such contract. Don’t forget that the right to rent of the land lot arises after the state registration of a doyogovor, and irrespective of term on which it is concluded (h. 2 Art. 125 of ZK). Registration the structural division of state enterprise Carries out the center of the state land cadastre at Gosudaryostvenn committee of Ukraine on ground resources within which powers there is a zemelyyony site. Let’s note that without contract registration the tenant has no right to start use of the land lot (h. 3 Art. 125 of ZK).

Plus of this option – if FH is the payer of the fixed agricultural tax, citizens – sobyostvennik of the earth are released from payment of the land tax (item 20 p.1 by Law No. 2535 Art. 12).

2nd option: transfer of a right of use uchastyoky FH in the skladochny capital. The economy acts under the charter, in which, in particular, otrazha­etsya an order of formation of property (the skladochny capital). The structure of property of FH includes also a right of use of earth (Law No. 973 Art. 19). Thus, members of FH can quite write down in the charter that the right of use of the land lot for a certain term will be their contribution to the skladochny capital. Such contribution is subject to an obligatory assessment. It can make or members of FH, or the proyofessionalny appraiser.

Transfer of a right of use proves to be true the acceptance transfer act where are specified: A naimenovayoniya of the transferring and accepting parties (the konkretyony member of FH and the chairman of FH), date of drawing up of the act, the name of transferred property and its cost.

It is known that the rights to the earth (in particular, an ownership right, possession, usings) are subject to a gosyoregistratsiya (Law No. 1952 Art. 4). However taking into account acts existing for today za­registrirovat in a land cadastre the ownership right and the right of continuous using earth, and also the right to a ground lease is possible only.

Plus of this option – simple documentary registration: charter and acceptance transfer act. But, to a sozhayoleniye, there are also minuses:

• first, in this case the owner of a site there is a citizen. And as the lease contract with FH – the payer of FSN doesn’t consist, the member of FH – the sobstvenyonik of the earth isn’t released from payment of the land tax. However, it can po­luchit such release on other bases, for example, as the disabled person of the 2nd group;

• secondly, difficulties are possible upon transition to FSN (see the explanation below).

Whether it is possible to transfer to FH the sites provided for a personal part-time farm?

It is possible, but only after change of a designated purpose of the land lot. What does it mean?

Personal country economy (further – LKH) and FH – two different concepts. LKH is meant as economic activity which carries out the individual individually or in common with the relatives for satisfaction of personal needs by a proizyovodstvo, processing and consumption of agricultural products, realization of its surpluses and service on an isyopolzovaniye of property of LKH (p.1 Law No. 742 Art. 1).

The main difference is that at LKH the separate legal entity isn’t formed.

For maintaining LKH use the sites which have been transferred to the possession individuals or rent with such designated purpose – for maintaining a personal country economy.

To transfer sites in using of FH it is possible only in case of change of a designated purpose, ukazanno­go in the state acts on an ownership right on the earth. The order of change of a designated purpose is approved by the resolution KMU from 11.04.02 of No. 502. For this purpose the citizen – the owner of the land lot submits the corresponding application or the petition to local council or the district state administration and receives the new state act.

And if a designated purpose not to change, than it threatens?

Owners are obliged to provide ispolzovayony the land lots on a designated purpose (to item 1 p.1 ZK Art. 91). No-purpose use uchast­ka threatens with an administrative penalty at the rate from 85 to 425 UAH. for citizens and from 255 to 510 UAH. for public officials (Art. 53 KUoAP). Consider cases and impose penalties Goszeminspektsiya acting as a part of Goskomzem’s public officials.

Who will be the payer of land tax for the sites transferred by FH?

The land tax is paid by owners or poyostoyanny users of the earth (Law No. 2535 Art. 2). In our situation those are members of FH in relation to the land lots, predoyostavlenny them in a property. After all according to Art. 12 of the Law No. of 973 FH carries out only rights of possession and usings the land lots which are in a property of members of FH while members of FH still remain their owners. And, of course, don’t forget about lgo­tax on payment of the land tax, provided Art. 12 of the Law No. 2535. For example, owners zem­li don’t pay a tax at site delivery in rent to the payer of FSN.

Whether received FH sites will be to join in FSN calculation?

As it is defined by Art. 3 of the Law on FSN, object the oblozheyoniya this tax is, in particular, the area of the agricultural holdings being in a sobyostvennost of agricultural enterprise and/or predostavyolenny to it in using (including under lease). Thus the area of the earth proves to be true extraction from a land cadastre.

If the earth is transferred to FH according to the lease contract, kotoyory passed state registration, to receive extraction it is possible. And such sites it is possible safely in FSN calculation.

As to sites, the right of use kotory­mi is brought in the skladochny capital of FH, there can be difficulties. The matter is that in a land cadastre information on owners and arendato­rax is fixed. However in this case FH isn’t neither that, nor another. Therefore in extraction it will be noted that the land lot is in a property of the konyokretny citizen. At the same time the Law No. 973 fixed norm that the lands received by citizens for conducting of commodity agricultural production, uses and FH owns. Moreover, there it is not specified that such using should be issued only as rent.

And in the Law on FSN it is a question of lands, predostavyolenny in using, including under lease. That is the earth can be transferred in using as according to the lease contract, and in a different way (for example, by introduction of a right of use as a contribution to the skladochny capital).

Thus, we come to a conclusion: on the basis of the Charter and extraction from the land cadastre, received chlena­mi FH – owners of the land lots, FH can include the area of the received sites in FSN calculation.

List of documents:

1. ZK – the Land code of Ukraine from 25.10.01 of No. 2768-III.

2. KUoAP – the Code of Ukraine about administrative offenses from 07.12.84 of No. of the 8073rd.

3. The law on FSN – the Law of Ukraine from 17.12.98 of No. 320-XIV About the fixed agricultural tax.

4. The law No. 742 – the Law of Ukraine from 15.05.03 of No. 742-IV About a personal country economy.

5. The law No. 973 – the Law of Ukraine from 19.06.03 of No. 973-IV About a farm.

6. The law No. 1952 – the Law of Ukraine from 01.07.04 of No. 1952-IV About the state registration of rights in rem on fast estate and their restrictions.

7. The law No. 2535 – the Law of Ukraine from 03.07.92 of No. 2535-XII8 About a payment for the earth.