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.
The head of the organization (director, general director), from the point of view of labor legislation, is the same employee who performs his duties on the basis of an employment contract, but has a wider functionality and range of responsibility. 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.
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.
Director- is the head or manager of an enterprise or company. Traditionally, he is the highest position in the organization, he is in charge of determining financial flows, working with personnel, as well as choosing a company development strategy. However, he is not always the main person in the company. Often the corps of directors represents hired people and they are assigned a certain salary.
Many people, mainly employees of enterprises, have always been interested in one question: how much does he earn their boss? Let's try to figure this out.
How much does the head of the company earn
Infographic - Executive Salaries by Industry
The incomes of the heads of organizations are very different and on average are in the range of 50 - 500 thousand rubles per month. Although there may be significant differences in individual positions. For example, the established salary of the head of some remote place can start from a couple of tens of thousands of rubles, or reach mind-boggling amounts.
According to the data, which was announced by the deputy Valery Rashkin from the Communist Party of the Russian Federation at a meeting in parliament in October 2014, the incomes of some heads of state-owned companies are very large.
So he gave the following figures:
- 1. Igor Sechin receives about 4.5 million rubles a day from ROSNEFT, which is about 100 million rubles a month.
- 2. Alexey Miller receives about 2.2 million rubles a day from GAZPROM.
- 3. Vladimir Yakunin in the company Russian Railways receives 1.3 million rubles a day.
By the way, the salaries of officials and deputies do not differ much from the figures that are offered to you in this article. If you want to know which of the civil servants receives the most in Russia -
The highest paid CEOs
1 place. Igor Sechin - Chairman of the Board of Rosneft
The total compensation from the company for the year is $50 million.
2nd place. Andrey Kostin — Chairman of the Board, President of VTB Bank
The total compensation from the company for the year is $35 million.
3rd place. Alexey Miller — Chairman of the Management Board, President of OAO Gazprom
The total compensation from the company for the year is $25 million.
4th place. Andrey Akimov — Chairman of the Board, President of Gazprombank
5th place. German Gref — Chairman of the Board, President of Sberbank
The total compensation from the company for the year is $15 million.
6th place. Mikhail Kuzovlev — Chairman of the Board, President of the Bank of Moscow
The total compensation from the company for the year is $15 million.
7th place. Dmitry Razumov - Head of Onexim Group
The total compensation from the company for the year is $15 million.
8th place. Ivan Streshinsky - Head of USM Advisors
The total compensation from the company for the year is $15 million.
9th place. Vladimir Yakunin - President of JSC "Russian Railways"
The total compensation from the company for the year is $15 million.
10th place. Mikhail Zadornov - Chairman of the Board, President of VTB24
The total compensation from the company for the year is $15 million.
Rating of proposals for the position of heads of companies in Moscow
- 1. Head of a real estate agency - up to 500 thousand rubles.
- 2. Head of a large company 300-450 thousand rubles.
- 3. Head of the late collection department - approximately 350 thousand rubles.
- 4. Commercial manager - 300-400 thousand rubles.
- 5. Head of the executive directorate - starting from 300 thousand rubles.
- 6. Deputy head for work with federal networks - starting from 300 thousand rubles.
- 7. Head of Procurement - up to 300 thousand rubles.
- 8. Head of marketing department - up to 300 thousand rubles.
- 9. BTL-head - up to 300 thousand rubles.
- 10. Product manager in a fashion company - up to 300 thousand rubles.
Rating of proposals for the position of heads of companies in Kazan
- 1. Head of ATP - 95-125 thousand rubles.
- 2. Head of 1C projects - from 100 thousand rubles.
- 3. Deputy branch manager - 75-120 thousand rubles.
- 4. Technical manager in the printing industry - 65-120 thousand rubles.
- 5. Regional manager (pharmaceuticals) - starting from 90 thousand rubles.
- 6. Head of a branch of a leasing company - 75-100 thousand rubles.
- 7. Regional sales manager - starting from 80 thousand rubles.
- 8. Deputy head - 55-100 thousand rubles.
- 9. The head of the branch - 55-95 thousand rubles.
- 10. Head of the regional branch - starting from 70 thousand rubles.
Even top managers of large corporations cannot afford such a vehicle as Abramovich's yacht. You can be proud - the Russian oligarch has the most expensive yacht on our planet -
How much do executives earn on average across the country?
In the offers of employers, the average size of requests in the country is a request of 60,000 rubles.
In the proposals of applicants, the average size of requests in the country is a request of 73,000 rubles.
How much do managers receive in the regions
The income of the heads of the organization will vary greatly depending on the company itself, the skills and experience of the head and the region of work.
So for a financial manager with the following skills and experience:
1) Higher education.
2) Knowledge of tax and accounting legislation.
3) Knowledge of methods of analysis of financial and economic activities.
4) Practical skills and knowledge in the field of tax, accounting and management accounting.
5) Work experience as the head of the economic department of 2 years.
6) Experience in passing audit and tax audits in the regions
the following offers apply.
- 1. Moscow - 70-100 thousand rubles.
- 2. St. Petersburg - 65-90 thousand rubles.
- 3. Volgograd - 40-55 thousand rubles.
- 4. Voronezh - 40-60 thousand rubles.
- 5. Kazan - 40-60 thousand rubles.
- 6. Yekaterinburg - 55-75 thousand rubles.
- 7. Krasnoyarsk - 50-70 thousand rubles.
- 8. Nizhny Novgorod - 40-55 thousand rubles.
- 9. Novosibirsk - 45-65 thousand rubles.
- 10. Perm - 40-60 thousand rubles.
- 11. Rostov-on-Don - 40-60 thousand rubles.
- 12. Omsk - 45-60 thousand rubles.
- 13. Samara - 40-60 thousand rubles.
- 14. Rostov-on-Don - 40-60 thousand rubles.
- 15. Chelyabinsk - 45-65 thousand rubles.
- 16. Ufa - 40-60 thousand rubles.
Naturally, the lowest incomes of managers are in regions with low developed industry and other industries. First of all, this concerns the republics of the North Caucasus.
Expecting revenue growth in 2015
On November 24, 2014, Anton Siluanov, Minister of Finance of the Russian Federation, made a statement at the economic forum that Russians will have to learn to live in a completely new economic paradigm and “tighten their belts”. The time has come for the implementation of complex decisions, as well as the rejection of "extra budget spending".
This means that the income of most state-owned company executives will grow slowly or be frozen. The incomes of the heads of private companies, on average, should grow by several percent.
In Russia, it is customary to refer to the salaries of oil workers, and especially employees, both ordinary employees and senior management, headed by Miller?
Video: What should be the ideal leader?
What approach is needed for CEO salary? We deal with this issue on the basis of existing legal norms.
General rules apply
The labor legislation of the Russian Federation considers the head of the organization, first of all, as an ordinary employee hired under an employment contract. However, the position of General Manager involves:
- wider responsibility;
- a special range of functions.
In relation to the head of the company, all the rights, guarantees and obligations provided for employees for hire also apply:
- the Labor Code of the Russian Federation;
- internal regulations of a particular organization.
Moreover: it needs special regulation, since the Labor Code directly indicates this.
The composition of the salary of the head
The Labor Code has established that the wages of all employees include:
- monetary reward;
- compensation;
- incentive bonuses for special working conditions.
These 3 components are mandatory for all calculations in relation to wages for heads of all levels of management of organizations and institutions, regardless of their legal form (exception - IP).
Wherein CEO salary should not be less than the “minimum wage” (minimum wage), which is annually established by the Government of the Russian Federation. Provided that he worked all the working days of the month (part 3 of article 133 of the Labor Code of the Russian Federation). The relevant law of July 2, 2016 (No. 164-FZ) set it in its first article at the level of 7,500 rubles (from 07/01/2017 - 7,800 rubles).
Attention is also drawn to the fact that a manager should receive a fair salary for complex managerial work. Since its specificity of work is significantly different from all other employees of the organization.
Most often, the position of general director is characteristic of such a form of organization as a limited liability company - LLC. Their activities are regulated by law. 
The General Director is a position isolated by the provisions of the Labor Code of the Russian Federation and at the same time - the sole body that performs the tasks of managing the enterprise. He acts within the framework of the labor functions provided for him on behalf of the employer (the founder of the legal entity). Suffice it to mention that the issues within its competence are:
- conclusion of transactions;
- recruitment, dismissal and transfer of employees to positions within the LLC;
- encouragement (bonuses) and disciplinary action on subordinates.
The general director usually has a salary system. And in principle, he has every right to set his own salary.
At the same time, there are cases that fall under the Law, the salary of the general director falls under a major deal for an LLC. By law, this is 25% or more of the active balance for the past reporting period. That is, until the day the head of the salary is established (Article 46 of Law No. 14-FZ).
Features of accrual
Reduction of wages to the CEO is permissible for periods of his absence from work. For example, due to going on vacation without pay. In all other general cases during vigorous activity CEO salary must adequately comply with the norms of the Labor Code of the Russian Federation and his merits. It should not be below the minimum wage, although there is one exception.
If his working day under an employment contract is incomplete, then the final earnings will naturally be proportionally reduced. And this will not be a violation of the Labor Code of the Russian Federation.
