Registration of the general director without salary. Do I need an employment contract for the sole founder? Calculation of insurance premiums and reporting: are there options

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.

one . 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 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 Ural 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).

four . 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 the 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.

From the point of view of labor legislation, the head of the organization (director, general director) is the same employee who performs his duties on the basis of an employment contract, but has a wider range of functions and responsibilities. And it is subject to all the rights and obligations provided for by the Labor Code of the Russian Federation in relation to employees. We will talk about issues related to the salary of the CEO in our material.

Director's salary

The salary of the CEO, as well as other employees, consists of:

• remuneration for work;
• compensation payments;
• incentive payments.

At the same time, for a full month worked, the salary of a director cannot be less than the minimum wage (part 3 of article 133 of the Labor Code of the Russian Federation). The value of the “minimum salary” from 07/01/2016, the minimum wage is set at 7,500 rubles per month (Article 1 of the Federal Law of 06/02/2016 No. 164-FZ).

Since the general director in an LLC is the sole executive body, he acts on behalf of the organization without a power of attorney, including representing its interests and making transactions, issuing orders on the appointment of employees, on their transfer and dismissal, applies incentive measures and imposes disciplinary sanctions and etc. (Clause 3, Article 40 of the Federal Law of February 8, 1998 No. 14-FZ).

Accordingly, the general director determines the size of his salary independently. But in practice, the establishment of remuneration for all employees, including the director, is often agreed with the owners, especially if the founder is the only one in the organization. There are some cases when the director of an LLC is obliged to agree on his large salary with the participants. This is necessary if the amount of salary falls under the definition of a major transaction. The criterion for a major transaction in an LLC is 25 percent or more of the company's balance sheet asset for the last reporting period preceding the day the decision was made to conclude such a transaction, in this case, the day the director's salary was established (Article 46 of Federal Law No. 14-FZ dated 08.02.1998 ).

Is it possible not to pay the salary of the director

The salary of the director, of course, can not be charged if he does not work (for example, he is on vacation without pay). In other cases - a violation of labor legislation, threatening the employer with a fine and payment of monetary compensation to the employee. Therefore, for a full month, the minimum wage, at least, must be accrued to the employee.

If the month is not fully worked out, the monthly salary may be lower than the minimum wage. The same applies to the case when the director works on a part-time basis, i.e., the labor norm is fulfilled, but the salary is below the minimum wage. For example, the employment contract provides that the director works daily for 2 hours and his salary is calculated based on the minimum wage for a full month with a 40-hour working week in proportion to the month actually worked.

Therefore, if September is fully worked out by the director in accordance with his schedule, the number of working hours will be 44 hours (22 working days * 2 hours / day). Therefore, his salary for September will be calculated in the amount of 1,875 rubles. (7,500 rubles / 176 hours * 44 hours).

Thus, the accrual of wages for a month in the amount of less than the minimum wage in this case is due to the peculiarities of the concluded employment contract in terms of wages and is not a violation of labor legislation.

Good day! I am writing another article and the topic is very popular today and it is asked to me several times every day, namely the situation when the sole founder of the LLC is also the director of his organization.

Since I myself registered another LLC in May, in which I am the sole founder and director at the same time.

Sole founder and director one person

This is perhaps the most frequently asked question to me, so we will analyze this topic in detail.

When the sole founder of an LLC is also its director, then ATTENTION.

He does not have to accrue his own wages and, as a result, pay insurance premiums to the Pension Fund, the Social Insurance Fund, the Compulsory Insurance Fund and, of course, personal income tax (there is no income).

The reason for this situation is rather banal and concerns labor legislation, a person cannot conclude an employment contract with himself. And as you probably all know, hiring takes place only after the conclusion of an employment contract in which all points are prescribed, including salary.

Well, since a person does not receive a salary, then there is simply nothing to pay insurance premiums and tax on the income of an individual.

And this, of course, is great news and will please all those who opened their own LLC and became its director.

As a result, it turns out that the only founder and director in one person is not even a full-time unit in the organization.

Despite the fact that the director and founder are one person and do not have to pay insurance premiums and taxes for themselves, reporting must be kept.

If you do not have employees, then you must report to the following government agencies:

Founding Director Reports

• Report to the FIU- it is necessary to hand over the zero RVS-1 within 45 days after the last quarter;

I remind you that this is only if you do not have employees. If you have hired a person, then you will no longer be able to hand over zero, but again, you should not take into account yourself as a staff unit.

When an organization has multiple founders

If there are several founders in an organization and one of them becomes a director, then the situation changes dramatically, and in this case employment contract with director.

With all the ensuing consequences, the payment of insurance premiums and taxes on a general basis, like an ordinary employee, the director becomes a full-time unit.

That's all, in general, the situation in the end is such that when an organization has one founder and he is also a director, then no contributions and taxes need to be paid for him.

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If you still have questions, then ask in my group in the contact "Business Secrets for a Beginner" or in the comments to the article.

Founder and leader in one person

When a company is established, the general meeting of participants elects the leader. An employment contract is concluded with the head. But according to the law, one person can establish a limited liability company. Do I need an employment contract in this case and how to conclude it correctly? How to pay for the work of such a "sole proprietor" and not make a mistake with taxes? You will learn about all this from our article.

The general director of the company is elected by the general meeting of its participants (clause 1, article 40 of the Federal Law of February 8, 1998 No. 14-FZ "On Limited Liability Companies"; hereinafter - Law No. 14-FZ). The founders can appoint a person to this position, both from their own number and from outside.

In the general case, an employment contract is concluded with an elected leader (Article 275 of the Labor Code of the Russian Federation). The employer in relation to the employee - the general director is the organization represented by one of its owners. From the organization, the contract is signed by one of the participants to whom the general meeting has granted such powers.

An employment contract (contract) is signed by different persons on each side. It includes all the mandatory and additional conditions provided for by the Labor Code (including wages - the size of the tariff rate or salary of the employee, additional payments, allowances and incentive payments).

The General Director works under an employment contract in accordance with Chapter 43 of the Labor Code. The provisions of this chapter apply to the heads of organizations, regardless of the legal form and form of ownership. But there are exceptions - in particular, this provision does not apply to the heads of organizations who are the only participants (founders) of the organization, owners of its property (Article 273 of the Labor Code of the Russian Federation).

Labor Relations

One person also has the right to establish a limited liability company (Article 11 of Law No. 14-FZ). The sole founder of the organization decides who will manage the company. The law does not forbid him to impose these duties on himself. In this case, the founder, by his decision, assigns the responsibility of managing the organization to himself - as the sole executive body (general director, director, president, etc.).

In the case when the founder and the head are one person, then it turns out that he 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. And from the norm of Article 273 of the Labor Code, it follows that signing an employment contract both on behalf of the organization and on one's own behalf is impossible, since there cannot be the same signature on both sides, and the organization has no other owner (letter of the Ministry of Health and Social Development of Russia dated 18.08 .2009 No. 22-2-3199).

The most common mistake when paying dividends is paying them monthly. This will certainly serve as the basis for the re-qualification of "dividends" into wages with all the ensuing tax consequences.

The Federal Service for Labor and Employment (letter No. 177-6-1 dated March 6, 2013) reasoned as follows. 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.

However, we draw your attention to the fact that the absence of an employment contract on paper does not mean the absence of an employment relationship. Article 16 of the Labor Code determines that labor relations arise not only as a result of an employment contract (in paper form), but also when the employee is actually admitted to work, with the knowledge of the employer or his representative, even if the employment contract was not properly drawn up. Labor relations that arise upon the appointment of a director to this position are characterized as labor relations on the basis of an employment contract. This conclusion is contained in court decisions (decree of the Federal Antimonopoly Service of the North-Western District of June 10, 2010 No. A21-8374 / 2009, the Federal Antimonopoly Service of the North-Western District of December 29, 2008 No. A21-3046 / 2008).

But there is a problem. In accordance with Article 21 of the Labor Code, an employee has the right, among other things, to the timely and full payment of wages in accordance with his qualifications, the complexity of work, the quantity and quality of work performed. The amount of salary (tariff rate) of various additional payments, allowances and incentive payments must be specified in the employment contract. But if the employment contract was not concluded in paper form?

Salary or dividends - that is the question

A director who is the sole founder may receive several types of payments. It could be:

Salary is a remuneration for work performed under an employment contract. If the manager is the only participant, in the absence of a written employment contract, the amount of his salary can be provided for in the staffing table.

But wages may not be paid. In the absence of a "paper" employment contract, the director can only receive dividends.

In case of non-payment of wages, labor legislation is violated. For this violation, liability is provided for under Article 5.27 of the Code of Administrative Offenses. And entails the imposition of a fine in the amount of:

. from 30 to 50 thousand rubles for organizations;

. from 1 to 5 thousand rubles for officials.

In case of repeated violation, at the request of the labor inspectorate, the court may decide to disqualify the head.

Dividends are any income received by a shareholder (participant) in the distribution of net profit. The company has the right once a quarter, half a year or a year to make a decision on the distribution of its net profit among the participants in the company (clause 3, article 28 of Law No. 14-FZ).

At the time of making a decision on the payment of dividends, it is necessary to take into account that:

• the authorized capital is paid in full;
• the organization has no signs of bankruptcy, and it will not become bankrupt after the payments are made;
• after the payment of dividends, the value of net assets will be no less than the authorized capital and reserve fund (if any).

If these rules are not followed, then both the tax inspectorate and extra-budgetary funds that check the correctness of payment of insurance premiums will try to prove that these payments are the salary of the head, and not dividends, and may decide on additional taxes and insurance premiums.

To avoid controversial and dangerous situations, you can pay both dividends and salaries. In this case, the salary may be minimal, but not lower than the established minimum wage or the industry average.

"Salary" taxes

Both salary and dividends are subject to personal income tax, but at different rates. Salary - 13%, dividends - 9%.

Dividends are paid from the organization's net profit to shareholders (participants) if they have a property right to a share in the organization's charter capital. This is not a work activity. Dividends are also not payments related to the performance of work (services) under any civil law contract. Therefore, they are not the basis for the calculation and, accordingly, the payment of insurance premiums (letter of the FSS of the Russian Federation of December 18, 2012 No. 15-03-11 / 08-16893).

In case of liquidation of the organization, the director - the sole founder may declare his rights both as a creditor and as a shareholder.

As a creditor, he will secondarily claim a severance pay in the amount of the average monthly salary (Article 178 of the Labor Code of the Russian Federation).

As a shareholder, he claims the property remaining after the satisfaction of the claims of all creditors (clause 1, article 58 of the Law).

When calculating wages, an obligation arises to pay insurance premiums to off-budget funds. They are accrued on all remuneration and payments in favor of the employee made within the framework of labor relations and civil law contracts for the performance of work or the provision of services (Article 7 of the Federal Law of July 24, 2009 No. 212-FZ “On insurance premiums to the Pension Fund of the Russian Federation , Social Insurance Fund of the Russian Federation, Federal Compulsory Medical Insurance Fund"). This also applies to the payment of salaries to the director - the only founder. For an organization, this is a waste of money. But for a person, this is undoubtedly a positive factor, since at the same time he is entitled to all types of social insurance benefits - temporary disability benefits, maternity and child benefits - on an equal basis with all other workers. This is directly indicated in subparagraph 1 of paragraph 1 of Article 2 of the Federal Law of December 29, 2006 No. 255-FZ “On Compulsory Social Insurance in Case of Temporary Disability and in Connection with Motherhood”.

Thus, the manager will have to make a choice and take into account that with the payment of dividends and a lower income tax rate, he will have to make contributions to future pensions from personal funds.

How to account for expenses

In general cases, accrued wages can be taken into account as part of labor costs (clause 1, article 255 of the Tax Code of the Russian Federation). And what about the salary of the director - the only founder? In our opinion, this paragraph of the Tax Code is also applicable in this case, even if a written agreement with the general director - the sole founder was not concluded. After all, labor relations take place, since the employee is actually admitted to work, regardless of whether the contract is concluded “on paper” or not (part 2 of article 16, article 19, part 2 of article 67 of the Labor Code of the Russian Federation).

It is not necessary to draw up an employment contract with the director - the sole founder. After all, there should not be the same signature on both sides of the contract, and the organization does not have another owner (letter of the Ministry of Health and Social Development of Russia dated August 18, 2009 No. 22-2-3199)

Paragraph 1 of Article 255 of the Tax Code determines that labor costs include any accruals to employees in cash and in kind related to the maintenance of these employees, provided for by the norms of the legislation of the Russian Federation, labor or collective agreements. This paragraph refers, in particular, to the established norms of legislation. And the main norms of legislation in the field of labor relations and labor contracts are enshrined in the Labor Code.

In addition, in accordance with paragraph 1 of Article 252 of the Tax Code, all expenses must be economically justified and documented. Labor costs, in the absence of an employment contract, can be confirmed by any documents indicating the existence of an employment relationship between the manager and the organization. These can be staff lists, hiring orders, pay slips, and so on. That is, this once again confirms that the salary costs of the CEO, the sole founder, can be taken into account in tax expenses.

And yet, it must be taken into account that when checking the IFTS, it may not agree with such conclusions and this position will have to be defended in court. But there is judicial practice that is positive for the taxpayer (decrees of the Federal Antimonopoly Service of the North-Western District of October 11, 2007 No. A42-5270 / 2006, of the East Siberian District of October 10, 2007 No. A33-15270 / 06-F02-6504 / 07, of the North-Western District dated April 23, 2010 in case No. A13-5979/2009).

O. O. Kruzhilina, for the journal "Practical Accounting"

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Comments (2)

Irrelevant information! Don't mislead everyone!

Catherine

And what's irrelevant here, Yuri? Explain.

In my opinion, quite a competent approach, especially in the light of the last letter of the Tax Service dated 10/17/2014 No. 03-11-11 / 52558

leave a comment

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CEO - founder of LLC: is it necessary to pay a salary?

• 05/24/2016  
• Business   
• Accounting   
• Starting a business   
• Staff   

Small organizations that exist in the form of an LLC or OJSC are often created by one owner, who simultaneously performs the functions of a manager. And then the question arises: is the CEO, the founder, entitled to a salary and is there a legal basis for not paying it?

The issue of the salary of the CEO is especially relevant if the company is just starting work. The founder argues as follows: why should I shift money from one pocket to another, pay my own salary when there is no income yet?

Employment contract with the CEO: a moot point

The organization cannot work without a leader who has the right to sign documents without a power of attorney. That is why the very first document when opening an organization is the decision to appoint a director. This decision is made by the general meeting of founders, and the chairman of this meeting signs an employment contract with the general director. The decision of the meeting of founders can be drawn up in the form of a protocol or the decision itself, if the founder is the only one.

The issue with the founder, who appoints himself as a director, is very poorly covered by the legislation, therefore it gives rise to a lot of discrepancies. Disputes are ongoing, first of all, as to whether to conclude an employment contract in such a situation and whether it is legal not to conclude it.

Some argue that the Civil Code of the Russian Federation contains a direct ban on signing an employment contract with oneself, referring to Art. 182. And accordingly, they propose to the sole founder to draw up a Decision on where to assume the duties of the general director.

Others adhere to the position that an employment contract is a relationship between an organization and an individual. Therefore, the founder acts in two roles: on the one hand, on behalf of the organization, on the other, on his own behalf as an individual. So the rules of Art. 182 do not apply to this case, such a conclusion, in particular, can be drawn from Article 273 of the Labor Code.

How to proceed in your particular case? It is better to contact the relevant authorities at the place of registration of the company. In the end, it is they who will check the activities of the organization and can create problems ... Or be ready to defend their position, including in court.

Should the director be paid a salary?

In the presence of an employment contract, the salary of the general director must certainly be accrued (at least formally). Accordingly, it will have to pay personal income tax, contributions to extra-budgetary funds, etc. Moreover, regardless of whether there is a turnover and whether there is any activity at all.

If you decided not to conclude an employment contract and limited yourself to the decision of the sole founder, then it is in this decision that the remuneration to the manager, that is, to yourself, is established. And maybe work on a gratuitous basis. Thus, the need to pay personal income tax, contributions does not arise. In addition, if there are no employees, the number of reports is also sharply reduced, for example, RSV-1 is not submitted to the FIU.

How to cut CEO salary costs?

The general director's salary cannot be lower than the minimum for the region. But it is absolutely not necessary to register a full-time CEO, especially if he is the sole founder. But you can arrange a part-time director or even 0.1 rates with irregular working hours. Then the salary of the CEO-founder will be quite small.

If there is no activity yet, you can send yourself (the CEO) on unpaid leave, then there is no need to pay a salary. It remains only to hand over zero reports. At the same time, being on vacation does not prevent the director from signing these same reports.

"Pitfalls" of saving on the CEO

When paying a purely nominal salary to the CEO-founder, one should not forget that life can turn around not only with a “white side”. And the future pension depends on the amount of payments. In addition, a high salary allows you to get bank loans, get visas, and the position of general director in the work book may come in handy later.

In addition, as unpleasant as it is to pay payroll tax to yourself and contributions to various funds, these payments are still lower than the income tax plus tax on dividends received by the founder of the company. So with good incomes, the high salary of the CEO, who is the only founder, can be a beneficial optimization of taxation.

1 Comment

About tax savings is not entirely clear. If the USN is not cheaper to withdraw through dividends? On OSNO, perhaps a salary is a more profitable way.

What is the best way to resolve the issue with the salary of the founder-general director of the company?

WiseAdvice tax consultant

In practice, there are often situations when the CEO is the sole 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 be no talk of any “zero” reporting - reporting will have to be drawn up, not only for the Federal Tax Service, 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 her 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.

There is no norm in the legislation obliging to pay a salary to the sole founder-general director. Justifications for the possibility of not paying wages are based on the interpretation of the norms of legislation and explanatory letters from departments

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 the same 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 payroll to the director.

The absence of an employment contract is the safest way to avoid payroll to the director. The General Director can perform his functions on the basis of the order on taking office and the Charter

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 Articles of Association.

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.

Quite often practiced is the argument that the founder-CEO receives dividends instead of wages. However, during the period of its development, until the organization has gained momentum, it may not have a net profit, so there is nowhere to pay salary or dividends to the founding director.

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.

If these rules are not followed, then both the tax authority and the inspectors of off-budget funds will try to prove that these payments are the salary of the head, and not dividends, and may charge additional insurance premiums.

At the first stages of activity, as a rule, all profits are directed to the development of the company. This is a legal way to reduce the amount of dividends paid out.

There is also a way not to pay wages in the presence of an employment contract, namely:

To do this, you will need to issue:

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.

At the same time, there are concerns about how a director on vacation can carry out his functions. However, the legislation of the Russian Federation does not provide for the suspension or termination of the powers of the head of the organization during the vacation period. The General Director has the right to use the powers of the sole executive body of the organization. And also has the ability to provide a circle of her interests in relations with third parties, to carry out transactions, to issue powers of attorney, including during the holidays.

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 director is the only founder: is it possible not to pay him a salary and not to submit reports to the funds for him?

This year, the Ministry of Finance of Russia spoke for the first time on the issue of how to formalize labor relations with the director, who is the sole founder of the organization (letter dated 15.03.16 No. 03-11-11 / 14234). Should this letter be taken into account in practice? To answer this question, we analyzed the current legislation. This article will present the most important conclusions. In addition, we will tell you how you should still formalize relations with the director in order to avoid conflicts with controllers and protect the business from the claims of counterparties. And finally, the question of whether the director - the only founder is an insured person, and whether information about him should be reflected in reporting to extra-budgetary funds will be considered.

Introductory information

The situation when a company is headed by its “founding father” is not uncommon in practice. Moreover, often such a leader is ready to perform his functions without receiving a monthly salary. There can be many reasons for this. Here is the banal lack of funds, and the desire to save on taxes and contributions, and simply the unwillingness to “bother” with additional accounting and personnel issues. A significant role in this approach, unfortunately, is also played by the controlling departments, which cannot decide in any way whether the director, the sole founder, needs an employment contract. So such a leader works without a salary and an employment contract. But how safe is this approach for the company?

Registration of the director - the sole founder: a brief history of the issue

The question of whether it is necessary to conclude an employment contract with the director - the sole founder of the organization, has been the subject of constant controversy for more than twenty years. Let us briefly recall how the position of officials and legislators has changed (for more details, see “Is it possible not to pay a salary to a director: new facts, previous conclusions”).

In 2002, the Labor Code of the Russian Federation introduced a rule that all employees, without exception, must have written employment contracts. It followed from this that if the staffing of the company has the position of director, then it is necessary to draw up an employment contract with him.

But in a situation where the director was at the same time the sole founder of the company, the conclusion of such an agreement raised questions. As a result, Rostrud issued a letter dated December 28, 2006 No. 2262-6-1, in which it indicated that the sole founder cannot be an employee of the organization. The department referred to Article 273 of the Labor Code of the Russian Federation, which states that the features established by the Labor Code for regulating the work of the head of an organization do not apply to the director, who is the sole founder. Therefore, the letter said, it is not necessary to conclude an employment contract with such a director. A similar point of view was expressed by the Ministry of Health and Social Development in a letter dated 18.08.09 No. 22-2-3199.

But this approach soon enough led to the termination of receipts to off-budget funds from payments in favor of such leaders. Therefore, the Ministry of Health and Social Development in a letter dated 06/08/10 No. 428n stated that in any case an employment contract is concluded with the director, even if he is the sole founder. The ministry justified its new approach by the fact that only in this way can the leader be provided with social and labor guarantees.

In 2011, legislators noticed the described problem and tried to solve it by amending the laws on social insurance. They expressly stated that the managers who are the only participants (founders) of organizations belong to the category of insured persons (part 1 of article 7 of the Federal Law of July 24, 2009 No. 212-FZ, paragraph 1, part 1 and part 5 Article 2, Article 13 of Federal Law No. 255-FZ of December 29, 2006, Paragraph 2, Clause 1, Article 7 of Federal Law No. 167-FZ of December 15, 2001, Clause 1, Article 10 of Federal Law of November 29, 2010 No. 326-FZ).

True, these amendments were not very successful, since the leaders were not mentioned as a separate item, but included in the general list of insured persons as follows: “working under an employment contract, including heads of organizations that are the only participants (founders)”. That is, instead of solving the problem, the amendments actually gave reason to believe that the leaders - the only founders - have a choice: to work under an employment contract and receive social protection, or not to draw up an agreement and not receive pensions and benefits.

Rostrud again made the next move. In a letter dated 03/06/13 No. 177-6-1, officials again indicated that an employment contract with the head - the only founder is not concluded. The rationale is this. An employment contract is an agreement between an employer and an employee, that is, a bilateral act. In the absence of one of the parties to the employment contract, it cannot be concluded. The only member of the organization must, by his decision, assume the functions of the head, without concluding any contract, including labor.

The position of the Ministry of Finance: there are labor relations, but there is no labor contract

And in 2016, the Ministry of Finance of Russia joined in deciding whether an employment contract was needed for the director, the sole founder. In a letter dated March 15, 2016 No. 03-11-11 / 14234 with reference to a rather old court decision (determination of the Supreme Arbitration Court of the Russian Federation dated June 5, 2009 No. 6362/09), specialists from the financial department indicated that labor relations with the director - the sole founder still exist . But they are not drawn up by an employment contract, but by the decision of a single participant. This means that the manager is an employee of the organization and he needs to be paid. Thus, the issue of insurance premiums from payments to the director was resolved in favor of the budget, and at the same time, the Ministry of Finance did not come into conflict with Rostrud (see also “The Ministry of Finance reported on how to formalize an employment relationship with a manager who is also the sole founder of the organization”).

But such an approach, for all its seeming success, does not answer the main question: will a “manager without a contract” be an insured person? After all, the laws mentioned above clearly state that in order to fall into this category, the manager must have an employment contract. In addition, the conclusion of the Ministry of Finance directly contradicts Article 16 of the Labor Code of the Russian Federation, which states that labor relations arise only on the basis of an employment contract. The only exception to this rule is the actual admission of the employee to work with the knowledge or on behalf of the employer (it is clear that this exception does not apply to the situation under consideration).

Thus, we have to state that the approach set out by the Ministry of Finance cannot be applied in practice, since it contradicts the Labor Code. In addition, guided by the position of the Ministry of Finance, it is impossible to answer the question of whether it is necessary to accrue insurance premiums on wages that are paid to the director not on the basis of an employment contract. Finally, this approach casts doubt on the legitimacy of including payments to a “manager without an employment contract” as part of the expenses under the OSNO, under the simplified tax system or unified agricultural tax. After all, on the basis of Article 255 of the Tax Code of the Russian Federation, the accruals provided for by the employment contract are included in labor costs.

In passing, we note that the definition of the Supreme Arbitration Court of the Russian Federation, to which the authors of the commented letter refer, was devoted to the question of whether the head-founder has the right to social benefits. And this judicial act was adopted even before the approval of the above-mentioned amendments to the laws on social insurance. That is, the conclusion of the court, to which the officials refer, is actually taken out of context. Therefore, it cannot be said with certainty that at present the arbitrators will support the approach proposed by the Ministry of Finance if a dispute arises over the right not to draw up an employment contract with the director - the sole founder.

Exclusion method: a contract is needed, but it cannot be civil law

So how do you formalize the relationship with the head, who is also the sole founder of the organization? In our opinion, in the current situation of legal uncertainty, it is possible (and necessary) to resolve this issue using the exclusion method.

We would like to remind you that LLC management relations are regulated by the special Federal Law No. 14-FZ dated February 8, 1998 “On Limited Liability Companies” (hereinafter referred to as the LLC Law). By virtue of clauses 1 and 4 of article 40 of this law, the relations of the company with the sole executive body (that is, the director) are in any case formalized by an agreement. This law does not establish any exceptions for the head - the only participant in an LLC.

At the same time, from the analysis of the LLC Law, it follows that this agreement can be civil law if it is concluded with a professional manager in the manner prescribed by Article 42 of the LLC Law. Obviously, in this case, the person claiming the role of the head (that is, in our case, the only founder) will carry out entrepreneurial activities to manage the LLC. This means that he will have to register as an individual entrepreneur (subclause 2, clause 2.1, article 32 of the LLC Law).

So, the civil law contract in this situation is not suitable. We exclude it. And as a result we get the following. First, you need to sign an agreement with the leader. Secondly, this contract cannot be civil law. Thus, there is only one option for formalizing relations with the director of an LLC - to conclude an employment contract with him. There is no other option in the legislation yet.

Additional arguments in favor of concluding an employment contract

There are other arguments in favor of the fact that it is necessary to draw up an employment contract with the head even if he is the only member of the organization. Let's start with the fact that the Labor Code has a separate rule that defines the circle of persons who are not subject to labor legislation. And this is not at all Article 273 of the Labor Code of the Russian Federation, to which Rostrud refers, but part 8 of Article 11 of the Labor Code of the Russian Federation. The list of persons specified in this norm is exhaustive, and the head of the company, who is its sole participant (founder), is not named there.

Further. The Labor Code does not contain provisions prohibiting the application of general rules (as opposed to special ones established in Chapter 43 of the Labor Code of the Russian Federation) to relations between a company and its leader - the only participant (founder). Moreover, by virtue of paragraph 2 of part 2 of article 16 of the Labor Code of the Russian Federation, labor relations as a result of appointment to a position arise between the employee and the employer precisely on the basis of an employment contract. And on the basis of the Law on LLC, the only member of the company, when deciding to empower himself with the powers of the head, appoints himself to the position of director.

As for Part 2 of Article 273 of the Labor Code of the Russian Federation, it only states that the head, who is the only participant in an LLC, does not need the guarantees established by Chapter 43 of the Labor Code of the Russian Federation. That does not exclude the execution of an employment contract with him.

The argument that the founder, who appointed himself the head of the LLC, concludes an agreement with himself, does not stand up to criticism. After all, the contract in this case is drawn up between an individual and a legal entity, that is, between different subjects of legal relations. The employer under such an employment contract will be an organization that has entered into labor relations with an employee - the head of this organization.

The fact that the same person signs an employment contract on both sides does not mean that the parties to the contract are the same. The fact is that on the part of the employer, the contract is signed by his legal representative - the only participant (founder), and on the part of the employee - an individual who performs labor duties as the head of the company (Articles 20, 56, 57 of the Labor Code of the Russian Federation). Legally, these are different persons, and there is no coincidence of the parties to the contract. Note that the courts on this issue also come to the conclusion that the coincidence in one person of the employee and the representative of the employer is not an obstacle to concluding an employment contract (see, for example, the decision of the Supreme Arbitration Court of the Russian Federation dated 03.06.09 No. 6597/09).

Finally, we present one more argument. The absence of an agreement with the head and the non-accrual of his salary or other remuneration may cast doubt on the legitimacy of his actions as a representative of the LLC in relations with third parties. After all, an ordinary participant is not entitled to conclude transactions and sign payment documents on behalf of the company. And, as mentioned above, the sole executive body, on the basis of the LLC Law, must conclude an agreement with the company.

What to pay the head-founder: salary or dividends

So, we have established that it is still necessary to conclude an employment contract with the head - the only founder. And if labor relations are formalized, then the employer must pay wages to the employee (Articles 21, 56 of the Labor Code of the Russian Federation). The condition on remuneration is a mandatory condition of the employment contract (Article 57 of the Labor Code of the Russian Federation). Thus, the absence of payroll in the presence of a concluded employment contract is a violation of labor legislation, for which at least an administrative fine threatens (part 1 of article 5.27 of the Code of Administrative Offenses of the Russian Federation).

At the same time, it would be wrong to say that the remuneration for the work of a manager may not be wages, but dividends. The fact is that a participant in an LLC has the right to dividends, regardless of whether he manages the company or not (clause 1, article 8, clause 2, article 28 of the Law on LLC). This means that dividends cannot be a substitute for wages.

Calculation of insurance premiums and reporting: are there options?

Let us dwell separately on the question of whether it is necessary to accrue insurance premiums for payments to the director - the sole founder and include information about him in reporting to extra-budgetary funds. Naturally, in the case when a manager is paid a salary on the basis of an employment contract, it is necessary to accrue insurance premiums and provide personalized information. But in practice, there are situations when the above question is not solved so unambiguously. Let's consider such situations.

The first situation: an employment contract with the director has not been concluded and no payments are made in his favor (except for dividends).

In this case, it is obvious that the obligation to pay insurance premiums does not arise, since there is no taxable base (Article 8 of the Federal Law of July 24, 2009 No. 212-FZ; hereinafter - Law No. 212-FZ).

As for reporting, it must be taken into account that according to the position of the Ministry of Labor of Russia (letter No. is also required to file zero returns. As the officials explained, in this way the insurer declares that there are no payments and remunerations that are the object of taxation of insurance premiums, and, accordingly, that there are no paid contributions (see also "Ministry of Labor: organizations are required to submit zero calculations for insurance premiums even in the absence of payments to individuals" ).

In addition, officials insist that a director with whom an employment contract has not been concluded must be submitted form SZV-M (PFR letter dated 06.05.16 No. for the director - the sole founder"). And although in both letters the reasoning used by the departments is not convincing enough, failure to submit reports is likely to lead to conflict with the inspectors. And how the court will look at this situation is almost impossible to predict, since initially the courts proceeded from the position that an employment contract should be concluded with the head. Thus, in the event of litigation, the possibility cannot be ruled out that the arbitrators will take the side of employees of non-budgetary funds. In addition, the organization may have to pay a fine for not formalizing an employment relationship with the director and not paying him a salary.

Therefore, correlating the possible risks, we believe that in the situation under consideration it is safer to submit both zero reporting to the funds and the SZV-M form in relation to the head.

Complete, check and submit SZV-M and RSV-1 free of charge via the Internet

The second situation: an employment contract has been concluded with the manager, but he is not paid wages

All the above conclusions are also relevant for the situation when an employment contract is concluded with the manager, but he is not paid wages. The difference in such a situation will be an even more precarious position of the organization in the event of initiation of litigation. After all, if there is an employment contract, payroll is mandatory (Article 57 of the Labor Code of the Russian Federation). Therefore, in this situation, we can say that the company is 100% likely to lose a lawsuit over non-submission of reports to the funds, as well as a very high chance of receiving a fine in addition for violating labor laws regarding non-payment of wages. In addition, in this case, the employees of the funds will most likely seek payments in favor of the director and will try to justify that these payments are in the nature of remuneration for work. And if they succeed, the organizations will be charged additional fees, penalties and fines.

Third situation: the organization does not conduct activities

This situation is a variation of the first or second situation, but with the condition that the organization does not conduct any activity (that is, we are talking about a “sleeping” organization).

Here it should be taken into account that Law 212-FZ, unlike the Tax Code, does not contain provisions that allow not to submit reports, or to submit it in a simplified form in a situation where the company is not operating. Therefore, controllers also insist on reporting (see the mentioned letter of the PFR dated 06.05.16 No. 08-22 / 6356). And since we are talking about a leader with whom, according to the rules of the Labor Code of the Russian Federation and the Law on LLC, it is necessary to conclude an employment contract, the chances of the organization to defend the right to an “unaccountable” life are extremely small.

Practical Conclusions

In conclusion, we present some practical conclusions.

1. The current legislation does not provide for any other option for formalizing relations with the director - the sole founder (who is not an individual entrepreneur), except for concluding an employment contract with him. Without an agreement, the activities of such a manager, acting on behalf of the organization, may be declared unlawful at the suit of one of the company's counterparties, which can jeopardize the business as a whole. Thus, an employment contract is needed, first of all, to protect the business, that is, the decisions that the manager makes and the documents that he signs.

2. Labor relations, by virtue of the direct and repeated instructions of the Labor Code, imply the calculation and payment of wages. Violation of this rule is fraught with at least an administrative fine. Accordingly, if an employment contract is concluded with the head - the sole founder, then such an employee must be charged and paid wages in the amount specified in this contract. The legislation does not allow to replace the salary with dividends.

3. The conclusion with the head - the only founder of the employment contract is a step that stops numerous conflicts with regulatory authorities. Thus, such an agreement removes uncertainty in terms of calculating insurance premiums (they must be charged) and reporting to extra-budgetary funds (it must be provided). In addition, the employment contract allows you to safely pay the manager various social benefits. Finally, the employment contract makes it possible to include wages in expenses when determining the tax base for income tax, a single “simplified” tax or unified agricultural tax, and in the event of claims, successfully defend this right in court.

Often you can find a situation where the owner of the company becomes its CEO. The law does not prevent this, and it is possible to establish a commercial firm alone. How to fix the employment relationship in this case?

Should a manager sign a contract with himself? How to avoid tax errors when calculating salaries for such a director? Below we will try to answer each of these questions.

Employment contract with the founder-director

The legislation of the Russian Federation does not give a direct answer to the question of whether a company should be registered in such a situation. The Federal Service for Labor and Employment believes that the contract is not required. In the letter of Rostrud No. 2262-6-1 of December 28, 2006, it is stated that the work of the director is regulated by the 43rd chapter of the Labor Code. Article 273 of the Labor Code of the Russian Federation indicates that the requirements of this chapter do not apply to the head of the company if it is a sole owner.

Article 56 of the Labor Code of the Russian Federation states that an employment contract is signed by the employer and employee, that is, labor relations are bilateral. In the situation we are considering, this is not possible. The same person cannot sign a contract on behalf of both the employee and the company. From this it is concluded that in our case there is no possibility of signing the contract.

The Ministry of Health and Social Development of the Russian Federation adheres to this point of view. Letter No. 22-2-3199 dated August 18, 2009 states that the presence of the same signature on both sides is unacceptable (according to Article 273 of the Labor Code of the Russian Federation). Thus, if the company does not have one more founder, the contract is not needed.

There is also a different perspective on the situation. So, the Federal Arbitration Court of the North-Western District confirmed that, according to Art. 11 of the Law "On Limited Liability Companies" dated February 8, 1998 (Law No. 14-FZ), a citizen can establish a company alone. In accordance with the first paragraph of the 40th article of this law, the general meeting of the founders of the company elects its sole executive body (this may be the president, etc.) for the period specified in the charter of the LLC.

This person is not necessarily a co-founder of the company. The contract between the firm and the manager is signed on behalf of the LLC. This must be done by the person in charge of the general meeting of participants, where the election took place. In addition, an employment contract with the general director may be signed by a member of the company who is authorized for this by a decision of the general meeting of founders.

That is, the situation when the sole owner of the company assumes the functions of the head of the same company does not run counter to the legal norms and the charter of the company. The position of the court is set out in the decision of the FAS SZO dated April 19, 2004 No. A13-7545 / 03-20.

When drawing up an employment contract with the general director, in the role of which the sole owner of the company acts, the following must be remembered:

The general director must be elected. However, in our case, when there are no other members of the company, and one owner signs the labor contract on behalf of the company, the company itself acts as the employer;

Directors are admitted to the state on a general basis, in accordance with Art. 68 of the Labor Code of the Russian Federation. The decision of the sole founder of an LLC on the appointment of a head forms the basis of an employment order. This order must be signed by the leader himself.

Calculation of the salary of the founder-director

Wages are defined in labor legislation as remuneration for work that took place under the relevant contract. If the CEO is the sole owner of the company and there is no formal employment contract, it is permissible to indicate the amount of his salary in the staffing table.

If an employment contract is concluded, it must contain a condition on the remuneration of the head-owner (according to Article 57 of the Labor Code of the Russian Federation). At the same time, it is important to take into account that wages for one full working month (entire hours worked and labor standards fulfilled) must exceed the minimum wage (minimum wage) or be equal to it (Article 133 of the Labor Code of the Russian Federation).

In addition to the salary, the CEO-owner is entitled to a portion of the profits. If there is no labor contract, he can work without salary and bonuses, receiving only dividends. When calculating these payments, several factors should be taken into account:

Payment of dividends is allowed no more than once a quarter;

The amount of dividends is calculated on the basis of the company's net profit, that is, after payment of all mandatory payments;

The basis for the accrual of dividends in each specific case should be the decision of the owner.

Paying dividends on a monthly basis is a fairly common accounting mistake. In this case, the audit of the company's accounts will not perceive it as dividends, but as wages, which will entail the corresponding tax consequences.

How to keep track of expenses for the salary of the founding director?

According to paragraph 1 of Art. 255 of the Tax Code of the Russian Federation, accrued wages are part of labor costs. Should the owner-director's salary be included in this category?

The answer to this question depends on the presence / absence of an employment contract. If there is a contract, then the amount of the salary must be indicated in it. Accordingly, it can be treated as a labor cost.

In the absence of a contract, you can act at your own discretion. However, it must be taken into account here that if an employee de facto works, labor relations take place, even if they are absent “on paper” (part 2 of article 16, article 19, part 2 of article 67 of the Labor Code of the Russian Federation). In this case, it is appropriate to assume that paragraph 1 of Art. 255 of the Tax Code of the Russian Federation is also applicable in the absence of a contract with the owner-director.

One of the most responsible positions in any organization is the director's position. The director manages the company and controls all key processes in production. This person monitors financial flows, works with personnel, and also determines the company's development strategy. But the director is not always the main person in the company, often such a person is hired and the terms of reference are determined. The set of powers determines his income and can answer the question of what salary the director has at the enterprise.

Average director salary

In the regions of Russia, directors' salaries vary greatly. Much depends on the duties of the director.

For example:

• commercial director salary on average - 75 thousand rubles;
• financial director salary on average - 85 thousand rubles.

According to open vacancies, at the beginning of 2016 they were ready to pay no more than 25 thousand rubles to the director, and in February the average level rose to 50 thousand rubles. This figure lasted until the fall of 2016, then fell to 35 thousand rubles. At the beginning of 2017, the average salary of a director of an LLC in Russia is 45 thousand rubles. At the same time, the salary of the deputy director, according to average indicators, is slightly inferior - 35-40 thousand rubles.

School principal's salary

Back in 2012, a decree officially began to work on the planned increase in wages for state employees, which include directors of secondary schools. The planned increase in the income of school principals will continue until at least 2018. In many ways, until 2016, the government managed to achieve the planned increase in the salaries of school directors by reducing some employees - about 30 percent of the staff of specialists were fired.

In 2015, the average salary of school principals increased by 5.5 percent as part of the annual indexation. However, wage growth is slow due to the reduction of subsidies and the reduction of the stimulating part of the income of public sector employees.

Positive dynamics is observed in the situation with the salaries of directors of Moscow secondary schools. The average salary of a school director from Moscow is 200-220 thousand rubles. Thus, the average salary of directors of Moscow schools has actually increased by 1.5 times compared to the same indicators in 2013. On average, in Russia, the salaries of directors reach 60-75 thousand rubles a month. The director of a rural school can count on a salary of about 40,000 rubles.

The salary of the principal of the school can be accrued according to the following indicators:

• base salary;
• incentive payments.

Types of incentive compensation:

• for working hours beyond the shift;
• for work on weekends and holidays.

Also, the income of the principal of the school depends on the number of students. The more children study in the institution, the higher the incentive payment for the director.

The salary of the director of the enterprise, plant

In 2017, the average salary of directors of factories and enterprises amounted to 57-60 thousand rubles. This figure is in line with 2016 figures. In the spring of 2016, plant managers could earn about 50 thousand rubles on average, at the end of 2016 - 55 thousand rubles. Based on the data of open vacancies, the highest paid position is now open in the Vladimir region - 200 thousand rubles a month. Among the leaders are also Arkhangelsk, Penza, Irkutsk, Moscow regions - about 100 thousand rubles a month. Of all the open vacancies for this position in half of them, employers indicate a salary in the range of 14 to 51 thousand rubles. In 25 percent of vacancies, a salary of 80 to 120 thousand rubles is indicated. Another 25 percent of vacancies indicate a salary of more than 125 thousand rubles a month.

CEO salary

According to open vacancies, the CEO's salary at the beginning of 2016 was no more than 40 thousand rubles, and in February the average level rose to 50 thousand rubles. This figure lasted until the fall of 2016, then dropped again to 40 thousand rubles. At the beginning of 2017, the average salary of a CEO in Russia is 60 thousand rubles. The largest number of vacancies for the general director is open in the Moscow region (40 percent), followed by the Leningrad region (14 percent). The highest paid vacancies for the CEO are in North Ossetia (over 300 thousand rubles), the Chechen Republic (300 thousand rubles), the Republic of Dagestan (295 thousand rubles).

Store manager salary

The main task of the store manager is to manage the trading center and its employees. The larger the store, the wider the responsibility of its director. If in a small outlet the director can often work behind the counter himself, order and receive goods, then in a large store he is mainly engaged in management and strategic development.

The salary of a person in this position consists of a fixed part and a percentage of the turnover of goods. The incentive payment is of great importance, since the motivation of the specialist and the results of sales at the point of sale depend on it.

On average, the salary of a store director in Russia is 45 thousand rubles. The minimum average income for this position is about 30 thousand rubles (the director of the Pyaterochka salary is 30-35 thousand rubles). The maximum income is over 100 thousand.

director without salary

Often, a specialist hired from outside becomes a director, representing the interests of business owners. Such a person, according to the law of the Russian Federation, is the same employee as everyone else, he is obliged to receive wages in the amount of at least the living wage. But there is another situation when the director of the enterprise becomes its founder and owner. The conclusion of the founder's employment contract with himself and the question of whether it is possible not to charge the director's salary are frequent subjects of legal discussions.

If such a situation occurs at the enterprise, a decision is made that the director is not paid a salary. But, according to labor law, a hired manager, regardless of his status, is still an employee of the organization and is obliged to receive a monetary reward. Thus, the answer to the question of whether it is possible not to charge a director's salary is unambiguously negative. The minimum salary of a director should not be lower than the officially established minimum wage, the maximum income of a director is not limited.