In practice, there are often situations when the CEO is the only founder. At the stage of development of the company, you always want to save money, including on paying yourself salaries and "salary" taxes, as well as by compiling zero reporting, so as not to spend money on complex accounting.
But if you pay wages even at the “minimum wage” (in Moscow - 16,500 rubles), then, taking into account income tax and contributions to funds, “salary” costs will amount to about 23,500 rubles. For many, at the stage of establishing a business, even such an amount is very significant. In addition, when calculating salaries, there can no longer be any talk of any “zero” reporting - reporting will have to be drawn up, not only for the IFTS, but also for funds (FSS and PFR). And this will lead to additional financial costs.
In this regard, the question arises: does the sole founder, who is the general director, need to conclude an employment contract and pay himself a salary, or can you somehow do without it?
Let's start with the fact that the legislation of the Russian Federation does not provide for any clause or article where it would be directly stated that the only founder-general director is allowed not to pay a salary. At the same time, there is no provision in the legislation obliging it to pay. All justifications for the possibility of not paying wages are based on the interpretation of the norms of legislation and explanatory letters from departments.
Let's figure it out.
Is an employment contract necessary?
Let us turn to Chapter 43 of the Labor Code of the Russian Federation "Features of labor regulation of the head of the organization and members of the collegial executive body of the organization."According to Article 273 of the Labor Code of the Russian Federation, the provisions of the chapter apply to the heads of organizations, regardless of their organizational and legal forms and forms of ownership, with the exception of cases where the head of the organization is the only participant (founder).
That is, the law explicitly states: if the head is the sole founder, then the labor regulations of the head of the organization do not apply to him. Including the provisions of Article 275 of the Labor Code of the Russian Federation on the conclusion of an employment contract with the head.
It is not very clear what to do with the signing of an employment contract. In the case when the founder and the head are one person, it turns out that the general director will have to conclude an employment contract with himself. Indeed, in this case, the signatures on the part of the employer and on the part of the employee will be the same.
Clarifications on this situation are given by Rostrud in a letter dated 03/06/2013 No. 177-6-1. And that's how officials argue.
An employment contract is a bilateral agreement between an employee and an employer. Each of the parties to the contract assumes certain obligations. The employee is obliged to perform labor functions in accordance with the established procedure. The employer must ensure appropriate working conditions. In the absence of one of the parties, the contract cannot be concluded. Therefore, if the founder and the head are the same person, there is no need to conclude an employment contract.
The possibility not to conclude an employment contract was confirmed by the Ministry of Finance of Russia in its letter dated February 19, 2015 No. 03-11-06/2/7790. The department also believes that the director cannot sign an employment contract with himself. And since there is no contract, then there are no grounds for paying wages.
In our opinion, there can be no violation of the law in the fact that the general director works, but there is no employment contract, since the duties of the director are one thing, and labor relations with an employee are another. The General Director is obliged to act on behalf of the organization on the basis of the Charter, it is not necessary for him to enter into an employment relationship with his company.
In our opinion, the absence of an employment contract is the safest way to avoid paying wages to the director.
Thus, labor relations, which imply the payment of wages, are not necessary for the CEO to perform his functions as the sole executive body. The general director can perform his functions on the basis of the order on taking office and the Charter.
If the CEO is the sole founder, he is not obliged to conclude an employment contract with his company, obliging himself to perform labor functions and comply with the internal labor regulations. He can perform all his functions as the sole executive body at any time, without limiting himself to the worker.
As for the salary, if it is still planned to be paid, an employment contract can be concluded, because the signing of an employment contract on both sides by the same person does not contradict labor laws.
There are no questions in a situation where the CEO is not the only founder. In such situations, an employment contract can and should be concluded. One of the founders can sign it.
How to justify non-payment of wages
So, if there is no employment contract with the sole founder general director, dividends can be the justification for the founder's source of income. At the same time, the company is not obliged to allocate all net profit to the payment of dividends, some part of it can be directed to business development.Here are the most common arguments for non-payment of wages.
- Dividends instead of salary
If it is decided to pay the founding director only dividends, it is necessary to follow the general rules for processing such payments. Payments must be made:
- no more than once a quarter;
- at the expense of the net profit of the organization remaining after payment of all taxes;
- based on the decision of the owner.
- All profits go to development
There is also a way not to pay wages in the presence of an employment contract, namely:
- Indefinite leave without pay
- application of the general director for granting him an indefinite leave without pay;
- an order to grant the general director an indefinite leave at his own expense.
Way to save
If the employment contract is concluded and the salary of the director is paid, then you can save money by prescribing the condition of part-time work in the employment contract, i.e. part-time (4 hours instead of 8 hours a day, 20 instead of 40 hours a week). Then the salary can be two times less. True, in this situation it is better to focus not on the regional “minimum wage”, but on the average salary in your industry. Recently, for tax officials, compliance with the minimum wage has ceased to be a criterion for the absence of "salary" schemes, they compare company salaries with industry averages.
Summarizing the above, I would like to say that in our practice, cases of imposing penalties in the absence of an employment contract or non-payment of wages to the director are extremely rare. Therefore, we believe that it is not worth wasting time on processing a large number of unnecessary documents and worrying about the responsibility for the fact that the founding CEO does not receive a salary.
The only founder and director in one person is a typical picture for a small business. Moreover, turning a startup into profit often requires the manager to invest a year or even more in its development of labor and money, without receiving anything in return.
In such a situation, paying the director's salary is a luxury that not everyone can afford. The luxury of paying insurance premiums from a salary, maintaining personnel records and submitting a huge amount of “salary” reporting.
Meanwhile, in the already established business, they want something fundamentally different - social guarantees (sick leave, vacations), the formation of pension savings, and a monthly salary. These are the benefits of an employment contract.
Is it necessary to conclude an employment contract and pay a salary if your company has the sole founder and director in one person? Unfortunately, there is no single official answer to this question. And if you came here for the exact "yes or no", then I will immediately disappoint you.
Meanwhile, there are advantages - to use the situation in a way that is beneficial to you. And in both cases, guided by the norms of the law.
Employment contract with a single founder
All official sources who are called upon to clarify controversial issues - Rostrud, the Ministry of Finance, extra-budgetary funds, courts - like capricious young ladies, put forward opposite points of view. And with references to the legislation. That does not prevent them from changing their position to the opposite after a while.
By the way, the letters of Rostrud and the Ministry of Finance are not legal acts, they contain only explanations and opinions and cannot have legal force.
Above, we have already briefly outlined the reasons why an employment contract with a single founder can be beneficial, we repeat:
- – the ability to receive monthly income from the business, regardless of the presence of profit;
- — social guarantees (payment for vacations and various benefits);
- - formation of pension insurance experience for calculating pensions.
Examples of opinions of officials against the conclusion of an employment contract: letters of Rostrud dated 06.03.2013 No. 177-6-1, dated 12.28.2006 No. 2262-6-1, letter of the Ministry of Finance dated 02.19.2015 No. 03-11-06/2/7790, letter of the Ministry of Health and Social Development dated August 18, 2009 No. 22-2-3199. Here are their arguments:
- If the sole founder and director are in one person, then the employment contract will contain two identical signatures, it is with itself, which is impossible.
In paragraph 3 of Art. 182 of the Civil Code of the Russian Federation states that an agreement signed by the same person on both sides has no legal force. But the provisions of this article do not apply to labor relations, this is civil law.
- Article 273 of the Labor Code from chapter 43 (labor relations with the head) states that the provisions of this chapter do not apply to managers who are the only participants (founders) of their organizations.
As you can see, the statements are very controversial.
The employment contract of the director with himself or with the company?
What arguments can be made in your favor if you are the only founder and director in one person and want to conclude an employment contract?
- The parties to the employment contract are different– the director as an individual and the organization as a legal entity. It is known that a legal entity has its own legal capacity and acts in legal relations on its own behalf, and not on behalf of its founders. Therefore, the director's employment contract "with himself" is possible.
- Chapter 43 of the Labor Code, to which officials refer, describes relations with a leader who is not a founder. In the Labor Code itself, there is no prohibition to conclude an employment contract with a single founder. And even in Article 11, among the persons to whom labor legislation does not apply, the founding director is not named.
Indirectly confirms the possibility of concluding an employment contract with a single founder insurance law. So, for example, in paragraph 1 of Article 7 of Law No. 167-FZ of December 15, 2001 “On Compulsory Pension Insurance in the Russian Federation”, we find that the insured persons are “those working under an employment contract, including heads of organizations who are the only participants (founders).
There are similar provisions in laws No. 326-FZ of November 29, 2010 (medical insurance) and No. 255-FZ of December 29, 2006 (social insurance).
Order for the director - the sole founder
Labor relations with the General Director are formalized in accordance with all the rules of labor legislation, with the conclusion of an employment contract. If the founder is the only one, then the contract can be concluded for an indefinite period.
The text of the agreement states that this employee “is entrusted with the duties of the general director on the basis of the decision of the founder (participant) No. ... .. dated ......”.
Those. First you need to sign the decision of the only member of the company. The decision will say: "I assign the duties of the general director to myself."
Based on the decision, an order is issued for the director - the sole founder, which says something like the following: I, full name, begin to fulfill my duties as the general director of LLC “...” from (date). Grounds: decision of the sole participant of the company No. ... dated ...
The requirement to issue an employment order is contained in Art. 68 of the Labor Code of the Russian Federation. A job entry is made in accordance with the general rules established by the Rules for maintaining and storing work books (approved by Decree of the Government of the Russian Federation of April 16, 2003 N 225), as well as the Instructions for filling out work books, approved. Decree of the Ministry of Labor of the Russian Federation of October 10, 2003 No. 69.
The signed order on the performance of duties will be an order for employment. Based on the concluded employment contract and order, an entry is made in the work book.
The entry in the work book is done as follows:
- - in column 3: Appointed to the position of General Director
- - in column 4: details of the order
If you plan to conclude an employment contract not only with the director, but also hire other employees, then.
Salary of the director - the sole founder
The employment contract will provide for the payment of wages to the director. Its size must be economically justified (Article 273 of the Tax Code - expenses are economically justified and documented).
Please note that the salary of the director - the sole founder can be paid only upon signing an employment contract. If it is not, then the tax authorities will not recognize it as an expense.
The explanation is simple - among the expenses that cannot be taken into account when calculating the tax base for income, the Tax Code indicates any remuneration to managers, except for an employment contract (clause 21, article 270 of the Tax Code of the Russian Federation).
The salary of the director is paid according to the same rules as the rest of the employees, there are no differences. Personal income tax is also withheld and insurance premiums are charged.
Sole founder and director in one person without an employment contract
There is also a reverse situation when the founder does not want to conclude an employment contract, but performs managerial functions. Since we refuted the arguments of the Ministry of Finance and Rostrud, we will not refer to their conclusions and justifications. Let's go from the other side - from the position of civil law.
Article 53 of the Civil Code, art. 32, 33, 40 of the Law "On LLC" indicate that the director is the sole executive body of the company and carries out the day-to-day management of the activities of the LLC.
There is no link to the presence or absence of an employment contract and payment of wages. From the moment the sole founder, by his decision, assumes the functions of the sole executive body, he receives managerial powers.
Thus, the only founder who wants to manage his organization himself has the right to either conclude an employment contract or do without it.
SZV-M for founding director
All employers are required to submit a report to the FIU in the SZV-M form. This must be done no later than the 15th day of the month following the reporting month. Until March 2018, according to the official position of the Pension Fund, SZV-M did not need to be filed against a founding director with whom an employment contract was not concluded and who did not receive a salary. This was explained by the fact that such persons were not recognized as employees, and therefore insured persons.
However, the FIU has changed its position since March 2018. Now SZV-M is submitted to the founding director in any case, regardless:
- - the presence or absence of an employment contract concluded with him;
- - the presence or absence of salary payments to him;
- - conducting business activities by the organization or stopping it.
Also, the SZV-STAZH report is submitted to the founder.
Officials explain their demand by the fact that Article 16 of the Labor Code states that even without a concluded employment contract, in this case, labor relations arise with the employee due to his actual admission to employment.
On this topic, you can read: PFR letters No. LCh-08-24/5721 dated 03/29/18, 17-4/10/B-1846 dated 03/16/18.
Moreover, regional offices for reinsurance require to include in the SZV-M not only the founder in the singular, but also all the founders, if there are several of them.
Is the Founding Director included in the PCA?
The form of Calculation of insurance premiums (RSV) in section 3 includes personalized information about the amount of wages accrued to each employee.
Therefore, if an employment contract is concluded with the founding director and a salary is paid to him, then such an individual and payments to him must be clearly reflected in section 3.
However, according to the latest position of officials (letter of the Ministry of Finance dated 06/18/18 No. 03-15-05/41578, letter of the Federal Tax Service No. GD-4-11/6190@ dated 04/02/2018) section 3 of the RSV should also include data on the director - the sole founder, even if an employment contract has not been concluded with him, and he does not receive a salary. In this case, in subsection 3.2 there will be zero indicators.
Officials explain this by the fact that despite the lack of payments, such a person does not cease to be insured. And it is insured because labor relations still exist, even without an employment contract.
In this article, we deliberately considered not only the problem of concluding or not concluding an employment contract, but also the reporting to be submitted. Because in the same situation, the same organs say completely different things. Fantastic! There cannot be an employment contract in principle, but at the same time it is. As well as the obligation to file reports.
No matter what you do, you will still be wrong! Therefore, there is only one conclusion - do what suits you best - by concluding or not concluding an employment contract. But in the reports, the only founder and director in one person must be mandatory.
If you have no time to waste time on accounting routine, if you have more important business tasks, then write on the page or in the online chat, we will be happy to help you. In the comments, you can ask questions about the content of the article, if you have any.
If the general director is the sole founder of the organization, then the “labor relations” with him as an employee are formalized not by an employment contract, but by the decision of the sole member of the company. This position is expressed in the letter of the Ministry of Finance of Russia dated March 15, 2016 No. 03-11-11 / 14234.
The authors of the letter refer to the following norms of labor legislation. It is stipulated that the employment contract involves two parties: the employee and the employer. An employee is an individual who has entered into an employment relationship with an employer, and an employer is an individual or legal entity (organization) that has entered into an employment relationship with an employee (). In the absence of one of the parties to the employment contract, it cannot be concluded. Therefore, if the head of the organization is its sole founder (that is, one of the parties to the employment contract is absent), then he cannot conclude an employment contract with himself.
The Ministry of Finance believes that when deciding on the registration of labor relations in the described situation, one should be guided by the definition of the Supreme Arbitration Court of the Russian Federation dated 05.06.09 No. 6362/09. And it states: by virtue of Federal Law No. 14-FZ of February 8, 1998 (on LLC), the appointment of a person to the position of director is formalized by the decision of the sole founder of the company. Consequently, “labor relations” with the director as with an employee are formalized not by an employment contract, but by the decision of a single participant. The same conclusion was repeated by specialists of the Ministry of Finance. In the same letter, the officials added that the general director, who is the sole founder of the LLC, has the right to establish the procedure for calculating dividends (for example, quarterly), taxing them with personal income tax in the general manner.
At the same time, we note that labor relations cannot arise without the conclusion of an employment contract. Indeed, it is directly stated: for the emergence of an employment relationship, it is necessary to conclude an employment contract. We also recall that specialists from the Ministry of Health and Social Development of Russia classify the head - the sole founder of the organization as persons working under an employment contract (order No. 428n dated 08.06.10). For more information about the problem of concluding an employment contract in the described situation, see below.
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Is it possible not to pay the director's salary?
Source: BukhOnline
Very often, starting a business, the founder of the company thinks solely about breaking even, making a profit and other macro indicators. To achieve them, he is ready to give up receiving wages, assuming that this will save not only the company's money, but also the accountant's time, and also reduce the tax burden along the way. There is certainly some logic to this behavior. Why divert and so small resources while the company has not yet got on its feet and receive a small salary? After all, you can “unwind” and get your own in the future, both in the form of a large salary and in the form of dividends. But is such a decision legal? Let's try to figure it out.
5 options not to pay the director's salary
Often in small companies, the director is ready to work without a salary to save money. But often the inspectors do not agree and they try to charge additional personal income tax and insurance premiums for free work. There are 5 options for not paying a director's salary, but not all of them are safe.
1 . Send the manager on vacation at his own expense
The organization should not be left without a leader, so his duties must be shifted to someone. If there is no one to transfer the powers of the general director and he plans to sign the papers himself, then he will have to draw up vacation exits and pay for them. Moreover, you need to pay every day when the director went out to “work”, and not hours of work.
If the director signs papers without leaving his vacation, this will lead to disputes with Rostrud.
If the company does not work, then you can send the director on vacation at his own expense, but in this case he does not have to sign papers on his own behalf. In the application / order for vacation, the director will indicate a good reason for the vacation - family or personal circumstances. No need to write that he is leaving to rest due to the fact that there are no orders, no demand for products. Otherwise, when checking, labor inspectors will reclassify the vacation as idle time and oblige the company to pay for the forced rest based on 2/3 of the salary. It will not be possible to cancel the decision even in court (appeal ruling of the Court of the Yamalo-Nenets Autonomous District dated September 16, 2013 in case No. 33-611).
2. Get a written waiver of salary from the director
This is risky, labor inspectors consider such a refusal unlawful, because, according to Article 133 of the Labor Code of the Russian Federation, one cannot work for free. The employer is obliged to pay for the work of employees.
If the inspectors find a statement with a refusal to earn money, they will consider that there was an employment relationship. And the tax authorities will charge additional personal income tax and insurance premiums from the minimum wage.
True, there are chances in court to cancel the amount. In similar disputes with funds (decisions of the Arbitration Court of the Urals District of October 24, 2016 No. F09-9195 / 16 in case No. A34-8837 / 2015, FAS of the East Siberian District of September 23, 2010 No. A58-5012 / 09). Such arguments helped to win: the director wrote a statement refusing to earn money; in the report card, working hours were not taken into account; the contribution base is actual, not estimated, payments. If there were no accruals, then there is no base for contributions.
3 . Conclude an agreement with the director on gratuitous services
This cannot be done. Such actions are contrary to the Labor Code, since labor relations are always paid (Article 15 of the Labor Code). If labor inspectors prove that the gratuitous contract hides labor relations, the organization will be attracted for non-payment of wages for 50 thousand rubles. (part 6 of article 5.27 of the Code of Administrative Offenses).
A contract for free services of a director is possible only if an employment contract has already been drawn up with him and this does not contradict the company's charter. For example, a CEO can provide free legal advice to a company. It is not prohibited. In the contract, state that it is free of charge. Otherwise, the contract will be reclassified as paid and the services will have to be paid at the market price (clause 3 of article 423 and clause 3 of article 424 of the Civil Code).
4 . Pay the director only for hours worked
This can be done from any date. To do this, it is enough to sign an additional agreement to the employment contract and issue an order (part 1 of article 93 of the Labor Code). In the order, indicate the start date of the part-time mode, the length of the day, the salary and the period for which you enter it.
However, this method also has disadvantages. In particular, it is necessary to ensure that the director does not sign legally significant documents (contracts, powers of attorney, declarations, bank documents, orders, instructions, etc.) on days when he is not supposed to perform his functions. Otherwise, there may be problems both with counterparties, who may try to prove the non-conclusion of the contract, and with regulatory authorities, who will insist on the fictitious condition of reduced working hours.
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What threatens violators of non-payment of salaries to the director
The most interesting thing is that a leader who, despite the requirements of the Labor Code of the Russian Federation, has decided not to receive wages, will be the first to suffer from such a decision. The fact is that non-payment of wages is a violation of labor laws. And for this, it provides for the imposition of a fine not only on the organization (30-50 thousand rubles), but also on the official (1-5 thousand rubles). In addition, in case of a repeated violation, the court, at the request of the labor inspectorate, may even decide to disqualify the head!
So not receiving your own salary can be very, very costly not only for the company, but also directly for the manager who refused the salary.
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The director, who is the sole founder and employee of the organization, should not charge himself a salary?
The CEO is the sole founder of the organization and its sole employee. Should he pay himself a salary and accrue for personal income tax payments and insurance premiums? The Ministry of Finance, in a letter dated 10/17/14 No. 03-11-11 / 52558, answered in the negative.
The rationale is this. According to, and the Labor Code, wages are understood as remuneration for work, which is paid to the employee in accordance with the concluded employment contract. It is stipulated that the employment contract involves two parties: the employee and the employer. An employee is an individual who has entered into an employment relationship with an employer, and an employer is an individual or legal entity (organization) that has entered into an employment relationship with an employee (). In the absence of one of the parties to the employment contract, it cannot be concluded. Consequently, the head of the organization, being its sole founder and member of the organization, cannot accrue and pay wages to himself.
There is also an opposite position. The letter of the Ministry of Health and Social Development dated 08.06.10 No. 428n states that the head refers to persons working under an employment contract, even if he is the sole founder of the organization. The courts also pointed out that the coincidence in one person of an employee and a representative of an employer is not an obstacle to concluding an employment contract (see, for example, the decisions of the Federal Antimonopoly Service of the West Siberian District dated July 29, 2009 No. F04-4242 / 2009 (10610-A27-25 ), definition of the Supreme Arbitration Court of the Russian Federation dated 03.06.09 No. 6597/09).
And since there is an employment relationship, it means that there should be a salary with all the ensuing consequences: personal income tax, insurance premiums, and their accounting when calculating taxes. Therefore, if you are not afraid to argue with the tax authorities, pay your salary, transfer personal income tax from it to the budget. And if the inspectors do not like the fact that you take into account the accrued salary, for example, when calculating income tax or STS tax, then by “removing” it from the base, they will lose personal income tax - you can safely return it from the budget in this situation.
The name of the position of the head of the organization is stipulated in the constituent documents and the charter in connection with the normative reflection of the sole management body. The principle of designating the head of the enterprise and building his labor relations with the company depends on a number of factors and functional areas of the company, as well as on the scale of production or other activities. Description of the position of director A director is usually appointed by a person in a non-profit structure who has a range of managerial, supervisory, representative and other functions to manage the organization. The key duties of the director and the area of responsibility are directly related to the types of activities of the company. For example:
- The head of the transport organization ensures the safety of transportation and the creation of conditions for the mode of work and rest of drivers.
Advantages of LLC with one founder - he is also a director
Rostrud insists that there can be no employment contract with the director - the only participant. The Ministry of Finance of Russia indicates that you cannot pay a salary to yourself, but if there is an agreement between a legal entity and a manager, then the costs can be taken into account.
The courts unequivocally say that an employment contract must be concluded. As we can see, there is no unanimity of opinion on this issue: some (theorists) are of the opinion that in such a situation it is impossible to conclude an employment contract, others (practitioners) believe that an employment contract in this case is an urgent need.
What should the organization do in such a situation: to draw up an employment contract with the director or not? Attribute the manager's salary to expenses or not? Let's analyze. Theorists (for example, Yu.P.
What is the responsibility of the founder of LLC in 2018
In some cases, it is responsible for licensing activities and providing special vehicles.
- In the field of public catering, the head of a canteen or plant is personally responsible for the quality of cooking, compliance with technology, sanitary standards, and product safety.
Under his leadership, a collectively developed development strategy for the profile of the organization is being implemented, production and economic plans are being implemented, and financial and economic issues are being resolved. He appoints deputies for conducting various activities, delegates authority to officials to manage branches, representative offices, divisions, sites.
Deputy directors are appointed both in non-commercial and commercial structures, there are no restrictions on the use of this position.
If the sole participant (founder) is the director of the organization
Info
At the same time, the director of an LLC is not included in the list of persons to whom the regulation of the Labor Code does not apply and with whom an employment contract is not concluded (part 8 of article 11 of the Labor Code). There is some legal uncertainty. An additional complication lies in the following: if an LLC concludes a TD with a director, then who signs it on behalf of the employer? It turns out a kind of legal paradox: TD on behalf of the employee and on behalf of the employer must be signed by the same individual.
Note that in this case, an individual is in a different status: in one case, he acts on his own behalf (an employee), and in the other, he is a representative of a legal entity. Note that a ban on the conclusion of transactions for a representative in relation to himself as an individual is contained in paragraph 1 of Art.
3 art. 182 of the Civil Code. But the regulation of the Civil Code does not apply to labor relations, and there are no such prohibitions in the Labor Code.
What is the difference between a director and a general manager?
The issue of differentiation of competence is solved as follows:
- the powers of the participant are determined by the charter of the LLC;
- all other issues are resolved by the general director on a residual basis (in the absence of a board of directors in the management system).
For an LLC with one participant (who is also a director), the rules of Law No. 14-FZ on interested-party transactions and major transactions do not apply (part 1, clause 5, article 45 and part 1, clause 9, article 46 of the said law). In an LLC with a single member, there is no conflict of interest, it is simple in administration and resembles an individual entrepreneur from a managerial point of view.
Attention
However, legally there are significant differences between an individual entrepreneur and such an LLC. IMPORTANT! The advantage of an LLC over a sole proprietorship is limited liability.
When creating an LLC, an individual transfers to him a part of his property, and with this property the LLC is liable for its debts.
Management in an LLC Can a founder be a director of an LLC Founder and CEO in one person: employment contract Law enforcement practice: TD with a director in an LLC with one participant (he is also a director) Founder and director - one person: risks Companies Management in an LLC The Civil Code of the Russian Federation directly provides for both the possibility of establishing an LLC by one founder and the admissibility of the operation of an LLC, initially established by several persons, later with one participant. This can happen either as a result of the retirement of the remaining founders from the LLC over time, or in the event of the acquisition by one person of 100% of the shares of the LLC (part 2 of article 88 of the Civil Code of the Russian Federation). If in business practice the term “founder of an LLC” is usually used, then the legislator prefers to use the term “participant of an LLC”.
If there is only one participant in the LLC, then he makes decisions on behalf of the GMS alone. Such decisions must be made in writing.
In this case, a number of provisions defined by Law No. 14-FZ in relation to the OSU do not apply (Article 39 of Law No. 14-FZ). Can a founder be a director of an LLC A direct and positive answer to this question is contained in part
2 tbsp. 88 of the Civil Code. Note that when the director and founder are in one person, the management system in an LLC does not become one-level. Although all decisions at any level of management in such an LLC are made by the same person, from a legal point of view, this is a two-level management system.
Who is the head of the organization CEO or founder
- It follows from the foregoing that a limited liability company may have one participant in its composition, who is entitled to perform the functions of the head of a limited liability company, i.e.
be his employee.
According to Article 7 of the Federal Law of February 8, 1998 No. 14-FZ "On Limited Liability Companies" (hereinafter - Law No. 14-FZ), a company can be established by one person who becomes its sole founder. The same person may also decide to appoint a director if a general meeting of the company's participants is not possible for this purpose, since only one person who acted as the founder when the company was created is its participant.
- The provisions of the Labor Code of the Russian Federation do not contain norms prohibiting the application of the general provisions of the Code to labor relations when an employee and an employer coincide in one person, although the application of the provisions of Chapter 43 of the Labor Code of the Russian Federation to such legal relations is excluded. Therefore, the employee is entitled to maternity leave with the payment of state social insurance benefits in the amount established by law, while the argument of the Social Insurance Fund that ...
there is no status of a person insured under compulsory social insurance, lawfully rejected by the court as insolvent
Indirectly, this point of view is confirmed by the state. organs.
SZV-M. Thus, the regime of compulsory pension insurance applies to these persons, and upon payment of insurance premiums, they form pension rights. Accordingly, these insurers must monthly submit to the bodies of the Pension Fund of the Russian Federation information about each insured person working for him.
Is it possible to take into account the director's salary as an expense for income tax purposes? Arguments about whether it is necessary to conclude an employment contract with the sole founder of the organization or whether it is necessary to do as the officials advise (to assign the functions of the head without concluding any contract to oneself (the person who is the sole founder)), would not be so relevant if not one but.
At the same time, the courts have developed a stable practice of recognizing the relationship with the founding director as an employment relationship. Recall that for violations of labor legislation on the basis of paragraph.
of the Code of Administrative Offenses, a fine of 30,000 to 50,000 rubles is imposed. from a legal entity. Before registering a TD with a director, it is necessary to create a decision of the sole participant of the LLC on the appointment of a director.
The article “Employment contract with the general director of an LLC (sample)” tells about the features of such a decision. The sole founder is the general director in 2 companies The legislation does not contain prohibitions for the sole participant of an LLC to hold the position of director in 2 or more such LLCs.
But only one AP in this case is the main one. In the rest of the LLC, the director must draw up a TD on part-time work. All part-time contracts are subject to the rules of Ch.
The fact is that, according to tax legislation, the cost of paying wages can be taken into account for tax purposes only if:
- labor relations (Article 255 of the Tax Code of the Russian Federation);
- civil law relations (clause 21, article 255 of the Tax Code of the Russian Federation).
By virtue of paragraph 21 of Art. 270 of the Tax Code of the Russian Federation, when determining the tax base, expenses for any types of remuneration provided to management or employees, in addition to remuneration paid on the basis of employment contracts, are not taken into account. Therefore, even if a civil law contract is concluded with the head of the organization, accounting for the cost of paying him remuneration is associated with tax risks. According to the Ministry of Finance, the head of the organization, being its sole founder and member of the organization, cannot calculate and pay wages to himself.
LLC with one founder - he is the director ... This legal situation is often encountered in the practice of business life. In this article we will consider the legal features of such a combination.
Management in LLC
The Civil Code of the Russian Federation directly provides for both the possibility of establishing an LLC by one founder, and the admissibility of the operation of an LLC, initially established by several persons, later with one participant.
This can happen either as a result of the retirement of the remaining founders from the LLC over time, or in the event of the acquisition by one person of 100% of the shares of the LLC (part 2 of article 88 of the Civil Code of the Russian Federation). If in business practice the term “founder of an LLC” is usually used, then the legislator prefers to use the term “participant of an LLC”. From a legal point of view, these terms are almost identical: the founder is the participant who was involved in the creation of the LLC. In what follows, we will ignore this minor difference.
Management in an LLC can be:
- Three levels including:
- general meeting of participants (GMS);
- board of directors (BoD);
- one or more executive bodies.
- Two-level, without SD formation. For an LLC with 1 participant, the presence of a SD in the management system does not make practical sense; in this case, a two-level management system is used.
Executive power in an LLC can be organized in 3 ways:
- sole executive body. In practice, this body/position is most often referred to as the "general director", although there are other names.
- The sole executive body together with the collegial executive body (usually there are the names "board" or "management").
- The management company is another legal entity that performs the functions of an executive body.
When matched founder and director of LLC in one person usually the 1st variant of the organization of the executive body is used.
The main governing body of the LLC is the OSU, it makes decisions on the most important issues of the functioning of the LLC. The competence of the OSU is determined by art. 33 of the Law "On Limited Liability Companies" dated February 8, 1998 No. 14-FZ (hereinafter - Law No. 14-FZ). A number of issues relate to the exclusive competence of the GMS, i.e. their resolution cannot be transferred to another body of the LLC by the charter of the company. If there is only one participant in the LLC, then he makes decisions on behalf of the GMS alone. Such decisions must be made in writing. In this case, a number of provisions defined by Law No. 14-FZ in relation to the OSU do not apply (Article 39 of Law No. 14-FZ).
Can a founder be a director of an LLC?
A direct and positive answer to this question is contained in Part 2 of Art. 88 of the Civil Code. Note that when the director and founder are in one person, the management system in an LLC does not become one-level. Although all decisions at any level of management in such an LLC are made by the same person, from a legal point of view, this is a two-level management system. The issue of differentiation of competence is solved as follows:
- the powers of the participant are determined by the charter of the LLC;
- all other issues are resolved by the general director on a residual basis (in the absence of a board of directors in the management system).
For an LLC with one participant (who is also a director), the rules of Law No. 14-FZ on interested-party transactions and major transactions do not apply (part 1, clause 5, article 45 and part 1, clause 9, article 46 of the said law).
In an LLC with a single member, there is no conflict of interest, it is simple in administration and resembles an individual entrepreneur from a managerial point of view. However, legally there are significant differences between an individual entrepreneur and such an LLC.
IMPORTANT! The advantage of an LLC over a sole proprietorship is limited liability. When creating an LLC, an individual transfers to him a part of his property, and with this property the LLC is liable for its debts. When an individual entrepreneur is formed, an individual is liable with all his property for the debts of an individual entrepreneur. At thatAt the same time, in entrepreneurship, an individual entrepreneur has its advantages over an LLC.
Founder and CEO in one person: employment contract
One of the main issues that arise in practical life is the issue of an employment contract (TD) with the director. Chapter 43 of the Labor Code of the Russian Federation (LC) is devoted to the issues of an employment contract with the director (as well as members of the board). However, in the event of a coincidence of a participant in an LLC and its director, its regulation does not apply (part 2 of article 273 of the Labor Code). At the same time, the director of an LLC is not included in the list of persons to whom the regulation of the Labor Code does not apply and with whom an employment contract is not concluded (part 8 of article 11 of the Labor Code). There is some legal uncertainty.
An additional complication lies in the following: if an LLC concludes a TD with a director, then who signs it on behalf of the employer?
It turns out a kind of legal paradox: TD on behalf of the employee and on behalf of the employer must be signed by the same individual. Note that in this case, an individual is in a different status: in one case, he acts on his own behalf (employee), and in the other, he is a representative of a legal entity. Note that the ban on the conclusion of transactions for a representative in relation to himself as an individual is contained in paragraph 3 of Art. 182 of the Civil Code. But the regulation of the Civil Code does not apply to labor relations, and there are no such prohibitions in the Labor Code.
Law enforcement practice: TD with a director in an LLC with one participant (aka director)
As a result, different law enforcers expressed different views on this subject and formed different law enforcement practices in their activities. Let's consider the expressed points of view.
- Rostrud, in a letter dated 03/06/2013 No. 177-6-1, stated that an employment contract with the director was not concluded in this case.
- On March 10, 2015, on the site onlineinspektsiya.rf (information portal of Rostrud), an answer was given that the TD (and no other contract) is concluded in such a situation, the director’s salary is not accrued, deductions to the Pension Fund and the Social Insurance Fund are not made. But on March 17, 2016, the opposite answer was given to the same question: the TD is concluded, the salary is accrued.
- The Ministry of Health and Social Development believes that in this case, labor relations arise regardless of whether a TD is concluded or not (Order No. 428n of June 8, 2010). In this case, the director is subject to compulsory social insurance. Note that this department does not currently exist, and its successor, the Ministry of Labor, did not give an official explanation (there are only the above-mentioned consultations of Rostrud, a service subordinate to the Ministry of Labor and Social Protection).
- The Ministry of Finance believes that in this situation a TD is not concluded (letters No. 03-11-06/2/7790 dated February 19, 2015, No. 03-11-11/52558 dated October 17, 2014). At the same time, the accrued salary cannot be included in the composition of costs that reduce the taxable base. The first of the above letters is applicable to organizations that are on the simplified taxation system (simplified taxation system), the second is for enterprises paying UST (agricultural tax).
- The judicial authorities are of the opinion that in such a situation, labor relations arise (decree of the FAS ZSO dated November 9, 2010 in case No. A45-6721 / 2010 and a number of other precedents). In an important definition of the Armed Forces of the Russian Federation of February 28, 2014 No. 41-KG13-37, it was concluded that such labor relations are regulated by the general provisions of the Labor Code (recall that Chapter 43 of the Labor Code does not regulate them). This point of view is confirmed in paragraph 1 of the decision of the Supreme Arbitration Court of June 2, 2015 No. 21). In a number of court decisions, it was concluded that labor decisions arise on the basis of the decision of a single participant, while registration of a TD is not required (determination of the Supreme Arbitration Court dated June 5, 2009 No. VAC-6362/09).
Founder and director are one person: risks
How to be an entrepreneur in such a situation? There is no single answer. But we believe that the risk of adverse consequences is much higher in the absence of TD with the director. Rostrud, which is the control body in the field of labor and is authorized to conduct inspections and impose administrative penalties, as mentioned above, often changes its point of view on this issue.
At the same time, the courts have developed a stable practice of recognizing the relationship with the founding director as an employment relationship. Recall that for violations of labor legislation on the basis of paragraph 1 of Art. 5.27 of the Code of Administrative Offenses, a fine of 30,000 to 50,000 rubles is imposed. from a legal entity. Before registering a TD with a director, it is necessary to create a decision of the sole participant of the LLC on the appointment of a director.
Sole founder - CEO in 2 companies
The legislation does not contain prohibitions for the sole participant of an LLC to hold the position of director in 2 or more such LLCs. But only one AP in this case is the main one. In the rest of the LLC, the director must draw up a TD on part-time work. All part-time contracts are subject to the rules of Ch. 44 of the Labor Code, including the norm on the length of the working day not exceeding 4 hours (Article 284 of the Labor Code) and the norm on the calculation of wages in proportion to the established working hours (Article 285 of the Labor Code).
IMPORTANT! The rule on the need for a permit to work part-time by a higher management body of an LLC, contained in Art. 276 of the Labor Code, does not apply to the founding director, since it is located in Ch. 43 of the Labor Code, and this chapter does not apply to this situation.
Note that a large number of simultaneously occupied directorial positions is a reason for verification by the tax inspectorate. Thus, one of the criteria for the possible unreliability of the information included in the Unified State Register of Legal Entities is the combination of more than 5 such positions by an individual holding a director's position in different organizations (letter of the Federal Tax Service dated 3.08.2016 No. GD-4-14/14126@).
LLC with one participant (aka director) is a very common and convenient practical tool for entrepreneurship in business life. In order to avoid problems with state regulatory authorities, we recommend (at the moment) to conclude an employment contract with a director in such an LLC. Before creating a trading house with a director, it is necessary to draw up a written decision of the sole participant of the LLC on his appointment.
