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 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.
Auditors from the funds checked an actively operating company. They found that in the period under review, its head performed his functions for free, that is, the director worked without a salary. The inspectors consider it illegal. They added additional insurance premiums to the company based on the minimum wage (SMIC), taking into account the regional coefficient.
Shareholders, participants, beneficiaries of the company may well occupy any regular positions in it. Typically directors. Since these persons usually receive income from the company in a different way (for example, in the form of dividends), they are of little interest in wages - they may well perform their functions without it or for a nominal fee - less than the minimum wage.
The employer is obliged to pay for the work of his employees in an amount not less than the minimum wage (Article 133 of the Labor Code of the Russian Federation). Violations of labor legislation threaten the company with fines of up to 50 thousand rubles. (part 1 of article 5.27 of the Code of Administrative Offenses of the Russian Federation). But in practice, some managers, especially if they are also the owners of the company, work without a salary, earning income in other ways. For example, in the form of dividends.
How is the base for insurance premiums calculated if there is no salary
In the audited period, the company did not pay income to the director within the framework of labor relations and did not accrue them. The director did not conclude an employment contract with the company. The court decided that this indicates that the company does not have a basis for calculating insurance premiums (part 1, article 7 of the Federal Law of July 24, 2009 No. 212-FZ).
The judges considered that the inspectors, when charging additional fees, reasoned erroneously. Federal Law No. 212-FZ of July 24, 2009 does not contain provisions that allow the fund, if the payer does not have a base for calculating insurance premiums, independently by calculation, based on the minimum amount of work, to determine the basis for calculating insurance premiums.
The courts are against additional assessment of contributions without actual payment of remuneration. This is not the first time that controllers from the funds have tried to charge additional contributions by the calculation method. This previously distinguished the auditors of the Ural and North Caucasian districts.
In the case considered by the Arbitration Court of the Ural District (Decree No. Ф09-5642/15 of 20.08.15), the inspectors, just as in the commented case, referred to the requirements of Article 133 of the Labor Code of the Russian Federation on the establishment of wages not lower than the minimum wage, taking into account the district coefficient. And additionally accrued contributions based on the appropriate amount.
The court agreed with the company's reasoning. The basis for calculating insurance premiums is the amount of payments and other remuneration of individuals (part 1 of article 8 of the Federal Law of July 24, 2009 No. 212-FZ). During the audited period, the organization did not make payments in favor of the director or other individuals, did not conclude labor contracts. According to the court, all this testified to the absence of a basis for the calculation of contributions by the company.
The court emphasized that Federal Law No. 212-FZ of July 24, 2009 does not allow the fund, if the company does not have a taxable base, to independently determine it by calculation, based on the minimum wage. As a result, he canceled all additional charges.
In the North Caucasus District, pensioners demanded that the wages of workers be higher than the subsistence level. The company did not comply with this requirement. Auditors additionally accrued insurance premiums by the calculation method. They proceeded from the difference between the living wage and the actual salary.
Disagreeing with the fund, the court recalled Articles 7 and 8 of Federal Law No. 212-FZ of July 24, 2009. According to them, contributions are taken from payments accrued in favor of individuals, and not from conditional values (decree of the Arbitration Court of the North Caucasus District dated 18.01.16 No. A63-3315 / 2015).
The director is not paid salary - taxes
Tax authorities, unlike pensioners, have the right to apply the calculation method. However, the norms of subparagraph 7 of paragraph 1 of Article 31 of the Tax Code of the Russian Federation allow a limited list of cases for this:
Refusal to allow inspection of the premises and territory of the inspected person;
Failure to submit documents for more than two months;
Lack of accounting for income and expenses, the object of taxation or record keeping with violations.
Therefore, companies usually win similar disputes related to personal income tax. The court cancels the calculation of tax based on the conditional value. For example, the minimum wage or the subsistence minimum (decisions of the Federal Antimonopoly Service of the East Siberian district of 23.09.10 No. A58-5012/09, the West Siberian district of 27.04.10 No. A81-3998/2009, the Volga region of 30.03.09 No. A12-12521/2008 districts and etc.). Does not recognize arbitration and calculation of tax from the minimum wage (decisions of the FAS of Moscow dated 08.26.10 No. KA-A41 / 9873-10, North-West dated 06.19.09 No. A56-32491 / 2008, Ural dated 03.10.09 No. F09-1039 / 09 -C2 districts). These indicators do not apply to income received, that is, to the personal income tax base (clause 1, article 210 of the Tax Code of the Russian Federation).
There are such examples for the UST in the period of validity of Chapter 24 of the Tax Code of the Russian Federation. The courts rejected similar claims in respect of the UST and insurance premiums to the Pension Fund of the Russian Federation (decisions of the Federal Antimonopoly Service of Moscow dated 08.26.10 No. КА-А41 / 9873-10, West Siberian dated 10.30.08 No. Ф04-6627 / 2008 (15063-А45-25), Far East of 04.10.06 No. F03-A51 / 06–2 / 3285, East Siberian of 17.01.08 No. A19-7573 / 07-50-F02-9744 / 07 districts).
Director works without salary - risks
However, the practice did not always develop in favor of employers. In some cases, when an employee or director works without a salary, the courts support additional charges based on the minimum wage. Consider what situations are at risk.
The first and most obvious is if employees (this does not apply to the director) do not conclude employment contracts at all. At the same time, based on the actual data and testimonies, the inspectors prove the existence of labor relations (Decree of the Federal Antimonopoly Service of the Urals District of April 24, 2008 No. F09-2804 / 08-C2).
The Federal Antimonopoly Service of the North-Western District pointed out that Article 37 of the Constitution of the Russian Federation guarantees employees a minimum wage. Therefore, the voluntary waiver of wages does not relieve the employer of obligations both to employees and to the FIU. As a result, the court upheld the additional charges (decree No. А56-27006/99 dated February 3, 2000). The norms of the Constitution of the Russian Federation, on which the decision is based, have not changed. So, despite the prescription of this judicial act, it is worth considering the risk of using this argumentation by tax authorities and insurance funds.
There is a risk that controllers will reclassify part of the dividends based on the minimum wage per month into a salary subject to insurance premiums. This is exactly what they did with respect to the remuneration that the director paid himself. Despite the fact that this payment also did not apply to labor relations or civil law contracts, the court considered the additional accrual of insurance premiums to be lawful (decree of the Thirteenth AAS dated 04.03.13 No. A21-8666 / 2012).
In another case, the Federal Antimonopoly Service of the North-Western District stated that the company did not prove the fact of paying dividends, and not just remuneration to the sole founder-director. Further, the court noted that relations arising as a result of election or appointment to a position are characterized as labor relations on the basis of an employment contract (Article 16 of the Labor Code of the Russian Federation). In situations where the employee and the employer are the same person, the general provisions of the Labor Code of the Russian Federation apply. On this basis, the court concluded that the employee (read - the founder), who is in an employment relationship with the company, has the right to compulsory pension insurance, and the company - the obligation to pay insurance premiums in relation to him (decision dated 26.09.11 No. A21-3113 / 2010).
Another risk: the tax authorities may consider that the company in such a situation has an economic benefit (Article 41 of the Tax Code of the Russian Federation). After all, she receives work or services free of charge. This may lead to additional accruals for income tax (clause 8, article 250 of the Tax Code of the Russian Federation). However, in the event of a dispute, the courts qualify the relations of the parties as gratuitous if the following signs are present (Article 39 of the Tax Code of the Russian Federation, Articles 423, 572 of the Civil Code of the Russian Federation):
The provision of goods, works or services under a gratuitous contract is carried out only by one of the parties, while the other party does not have counter obligations;
The contract or regulatory legal act contains a direct and unambiguous indication of the gratuitous nature of the relationship.
If the company can prove that the other party also received an economic benefit, not necessarily in cash, then the courts cancel the additional charges. An example of this is the decision of the Moscow Arbitration Court No. A41-56516/14 dated 08.05.15, the Federal Antimonopoly Service of the North-Western District No. A56-30538/2013 dated 04.10.14, and the Central District No. A54-1171/2011 dated 03.07.13.
The director does not receive a salary - but what does he live on
If the controllers accuse the company of understating insurance premiums or personal income tax, they will carefully check the expenses of a disinterested director. First of all, they will be interested in expensive assets that are subject to state registration: real estate, cars, their own business. Moreover, not only the director, but also his closest relatives will be checked. Next, most likely, will go securities, deposits, expensive travel and training, as well as other assets that can be tracked.
The director should be available to answer controllers' questions about the sources of such acquisitions. Especially if they were made after the start of free work. There can be many excuses: part-time work in another company, income of other family members, loans and borrowings, savings and other options. If during the first survey, conducted unexpectedly, the manager cannot give clear explanations, then this will confirm the suspicions of the inspectors.
The minimum salary of the CEO of LLC in 2018 - 2019
The minimum salary of the General Director of an LLC - 2018 - 2019 is calculated according to the same principles as the salary of any other employee with whom an employment contract is concluded. Next, we will tell you what the lower limit of the salary of the director of the organization is and whether it is necessary to conclude an employment contract with the director, who is also a member of the same legal entity.
Director and participant in one person: on the basis of what to calculate salaries
With regard to the head, who is also a participant in a legal entity, there are certain disagreements: the relevant acts of state bodies and judicial practice contain opposing points of view.
So, for example, the Ministry of Finance of the Russian Federation reports that the relationship between such a director - the only participant and the legal entity-employer should be formalized not by concluding an employment contract, but by the decision of the sole participant of such a legal entity (see letter of the Ministry of Finance of Russia dated 15.03.2016 No. 03-11-11 /14234). At the same time, payroll should also not be made (letter of the Ministry of Finance of the Russian Federation of October 17, 2014 No. 03-11-11 / 52558). However, the position stated in the said letter dated 10/17/2014 is more than controversial and does not meet the requirements of the current legislation of the Russian Federation (see, for example, subparagraph 1, clause 1, article 2 of the law "On Compulsory Social Insurance ..." dated 12/29/2006 No. 255-FZ, in which directors - participants of a legal entity are classified as persons working under labor contracts, etc.).
Also, many lawyers note that the Ministry of Finance, in principle, is not competent to give such explanations (see clause 1 of the Regulations on the Ministry of Finance of the Russian Federation, approved by Decree of the Government of the Russian Federation of 30.06.2004 No. 329).
The Ministry of Health and Social Development of the Russian Federation, on the other hand, adheres to the opposite point of view: the director of a legal entity who is in an employment relationship with him, as well as in situations where he acts as the only participant, is considered a person who performs his labor functions under an employment contract (see order of the Ministry of Health and Social Development of the Russian Federation dated 08.06 .2010 No. 428n). The courts also adhere to the same position (for example, the decision of the Supreme Arbitration Court of the Russian Federation dated 03.06.09 No. 6597/09).
Minimum salary for director of LLC in 2018-2019
Thus, the conclusion of an employment contract with the director of a limited liability company involves both the accrual and payment of wages to such an employee.
Considering that the director of an LLC, including one who is also its participant (see definition of the Supreme Court of the Russian Federation of February 28, 2014 No. 41-KG13-37), is subject to all the requirements of the labor legislation of the Russian Federation, the minimum wage of such an employee should not be below the established minimum wage (hereinafter referred to as the minimum wage) (see Article 133 of the Labor Code of the Russian Federation).
On 01/01/2019, the Federal Law "On Amendments ..." dated 12/25/2018 No. 481-FZ established the minimum wage at 11,280 rubles. Federal Law No. 421-FZ dated 12/28/2017 “On Amendments…” establishes that starting from 01/01/2019 and onward, the minimum wage is determined from the subsistence minimum for the 2nd quarter of the previous year. With a decrease in the subsistence minimum, the minimum wage remains at the level of the previous year. Ahead of the deadline, the minimum wage reached the level of the subsistence minimum already from 05/01/2018 and amounted to 11,163 rubles. (Law “On Amendments…” dated March 7, 2018 No. 41-FZ).
At the same time, the subjects of the Russian Federation are empowered to approve the minimum wage for their region (Article 133.1 of the Labor Code of the Russian Federation). The main requirement is that the regional minimum wage cannot be lower than the federal one (paragraph 4 of article 133.1 of the Labor Code of the Russian Federation).
It is at the level of the minimum wage that the director of an LLC should be guided when determining the salary - below his salary cannot be set (subject to full development) ..
So, an employment contract must be concluded with the director-participant, he needs to accrue and pay wages. A similar rule applies to the general director who is not a member of the LLC.
The minimum wage of the director of an organization, whether he is an invited employee or at the same time a member of the same organization, is determined according to the same rules as the minimum wage of other persons employed under an employment contract, and should not be lower than the minimum wage (regional minimum wage - if any in a particular region).
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.
Can a director not receive a salary if he is a founder
LLC "Nebo" Often you can find a situation where the owner of the company becomes its general director. 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.
The legislation of the Russian Federation does not give a direct answer to the question of whether a company should draw up an employment contract 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.
CEO salary
InfoBefore deciding whether the director of an LLC can not receive his salary, if he is also the sole founder, it is worth sorting out his status. The most common situations:
- If the owners have appointed a manager as a manager, from the point of view of the law, he is the same employee as everyone else. Based on this, it is clear that he is obliged to receive wages.
Moreover, hired workers of this specialty are invited when they can afford to pay for their duties. Therefore, in such positions, the question of remuneration often does not arise. If it does appear, then the result depends on the existence of an employment contract.
Attention
Option 2: We reduce the rate The company is obliged to pay wages, even if it incurs a loss. You can reduce the monthly payment only by signing an agreement with the director for part-time work. If he works for a quarter of the rate, he will receive, accordingly, less.
Director and founder in one person, is it necessary to pay a salary?
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 by the board of directors.
Is it possible not to pay for the work of the Director of an LLC, if he is also the founder?
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.
Can the director of the LLC not receive a salary if he is the founder
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 general director, 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.
Why does the CEO need to be paid a salary?
Recently, every citizen of the Russian Federation makes an important decision in life to open their own business. This situation is not uncommon in the modern world, and everyone treats it with understanding. But not every potential owner of the organization knows absolutely everything about the upcoming business.
As practice shows, most people ask the same questions. One of the most common is: "If the director and the founder are the same person, then he can be paid a salary." And in general, can the director not receive a salary in this case? Conclusion of an employment contract with the founding director In order to understand the above issues, it is necessary to understand whether it is required to carry out the process of concluding an employment contract with the director himself.
Moreover, in order to identify a violation, it is necessary to document that:
- the director works without a contract;
- this is indeed a violation of the law under the current situation;
- the founder was paid material remuneration for the work;
- the latter must be subject to taxation on insurance premiums.
But this is only one side of the coin. The decision of Rostrud is easy to challenge, referring to the Labor Code. It contains a certain list of persons who are not subject to labor legislation, and contracts in particular. But it does not mention the owner-director, which means that he does not fall into the list of those exempted from labor laws.
The constant disputes of specialists over the employment contract of the sole member of the owner organization, who occupies the main managerial position, have been going on for more than one year. Why? Because even the approach of the control bodies has changed repeatedly.History of decisions In 2002, the authorities decided that all employees must enter into a written employment contract. Then the problem with the director in the person of the sole founder was solved by itself, with the help of the same employment contract. The underlying reason was hidden in the correctness of this procedure: what dates to set, who signs the contract, etc. But already in 2006, Rostrud confirmed that the only founder cannot be an employee of his own organization, on the basis of which an employment contract was not drawn up.
A year later, the ministry made changes to this system, stating that the director in any case must conclude an employment contract with the organization in which he works, even if he is its sole founder. The justification was that only in this way the director was provided with social and labor guarantees. In 2010, everything changed again. Rostrud insisted on its previous decision - there is no need to conclude an employment contract with the owner-manager, referring to the impossibility of concluding labor obligations with oneself, which is very logical.
Judicial constancy Against the backdrop of such instability of executive decisions, the judiciary was the exact opposite. Legal frameworks are by no means full of decisions that are relevant to this topic. But their conclusions are unequivocal - there must be an agreement.
The question that is asked in companies: is it necessary / can the director of an LLC pay himself a salary? According to the Ministry of Finance, the director, who is the sole owner, should not do this. Let's take a closer look. The director must work under an employment contract The director of an LLC under the Labor Code of the Russian Federation is an employee of the company, it does not matter whether he owns it or is employed. The labor law applies to the director in the same way as to other employees of the company.
According to Art. 16 of the Labor Code of the Russian Federation, labor relations with the director begin from the moment of election, which means that the conclusion of an employment contract is a necessity. If the director is the sole founder, he puts two signatures - from the organization (as a legal entity) and from himself (as an individual).
At this point, there is precisely a disagreement between the Ministry of Finance, which considers a “double signature” impossible, and arbitration courts, which insist on the opposite.
If the founder and director are the same person, is it possible not to accrue salaries in 2018? What is the best way to resolve the issue with the salary of the founder-general director of the company? 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). Travel agency director - sole founder Travel agency director - sole founder
And if the CEO is the sole founder...
It seemed that the problem-free topic of the salary of the general director, who is the sole founder of the LLC, unexpectedly received a continuation. The fact is that the Ministry of Finance of Russia, together with the Ministry of Health and Social Development, decided to revise the established attitude towards it. And it should be noted that this new view can threaten organizations with considerable trouble. What's the matter? This is discussed in the article.
In general, the situation with the salary of the general director, the sole founder of an LLC, is rather complicated and ambiguous.
In particular, on September 7 of this year, the Ministry of Finance of Russia issued a Letter in which it confirms the point of view of the Ministry of Health and Social Development of Russia, expressed in Letter No. 22-2-3199 of August 18, 2009. This Letter says that the provisions of Ch. 43 of the Labor Code of the Russian Federation establishes the features of labor regulation of the head of the organization and members of the collegial executive body of organizations.
According to Art. 273 of the Labor Code of the Russian Federation, the norms of this chapter apply to the heads of organizations, regardless of their organizational and legal forms and forms of ownership, with the exception, in particular, of the case when the head of the organization is the sole participant (founder), member of the organization, owner of its property. This norm is based on the impossibility of concluding an employment contract with oneself, since the organization simply does not have other participants (members, founders).
The Ministry of Health and Social Development of Russia states that that the sole founder of an LLC cannot receive a salary as a general director. All payments are dividends. Everything would be fine, but dividends are paid in the presence of profit and its quarterly distribution.
The logic here is simple: if the payments to the CEO, who is the sole founder of the LLC, are not wages, then these are dividends. Therefore, these payments cannot reduce the organization's taxable income. But they reduce payments on the UST (and from January 1, 2010 - contributions to off-budget funds) and personal income tax.
In turn, such tax savings deprive a person of the right to receive temporary disability benefits and maternity benefits, since only insured persons are entitled to this.
In this case, according to officials, an employment contract is not concluded with the director - the sole founder according to the rules of Art. Art. 273 and 274 of the Labor Code of the Russian Federation. This means that no contract is concluded with him at all and insurance is not carried out.
Relations with the director in this case are formalized by the decision of the sole participant to assume the functions of the sole executive body - the director. And since an employment contract is not concluded, no entries are made in the work book.
Rostrud will be happy with this option, but the tax authorities are not very happy. The problem is that the director does not have to accrue wages, so the tax authorities will try to reclassify dividends into wages. This will entail additional accrual of UST, personal income tax, as well as fines and penalties for these taxes.
However, there is another point of view on this problem.
Let's start with the fact that labor relations between an employee and an employer in accordance with Art. 16 of the Labor Code of the Russian Federation also arise on the basis of the actual admission of the employee to work, that is, if the sole founder of the LLC actually began to perform the duties of the general director, then the employment contract is considered concluded.
And Art. 37 of the Constitution of the Russian Federation provides for the right to remuneration for work not lower than the minimum wage established by federal law. In addition, Art. 136 of the Labor Code of the Russian Federation states: "Salary is paid at least every half a month ...". Therefore, remuneration in the form of dividends cannot be considered as payment for labor.
In this case, the organization has the right to accrue and pay wages to its director. These amounts will be taken into account in labor costs for income tax purposes.
Can the director of LLC not receive a salary
Personal income tax, UST, pension contributions and accident insurance contributions will also be charged on them.
An important advantage of this option is that it will save the organization from the claims of the tax authorities for the UST, and the director from the claims for personal income tax.
Let's not forget that the right to receive dividends for the General Director - the sole founder is retained, if there are any.
The difficult moment in such a situation will be the position of the Social Insurance Fund of the Russian Federation. The Fund practices the refusal to pay benefits for temporary disability to organizations that have an employment contract with the head - the only member of the company, in the payment of benefits. The logic is as follows: if the sole founder is at the same time his leader, there will be no labor relations between him and the company. An employment relationship is a relationship between two entities: an employee and an employer. In this case, there is only one subject - the employer. And there is no employment contract - no insurance and social benefits.
A consolation here is the fact that often the courts take the side of the taxpayer and oblige the Social Insurance Fund of the Russian Federation to pay benefits. An example is the Determination of the Supreme Arbitration Court of the Russian Federation dated June 5, 2009 N VAC-6362/09. The applicant in the case was the Primorsk Regional Branch of the Social Insurance Fund of the Russian Federation. In its decision, the court explained: “The applicant’s arguments about the incorrect application of substantive law by the courts, justified by the fact that the right to receive benefits arises for insured persons for all types of compulsory social insurance from the moment an employment contract is concluded with the employer, and the employment contract between the company and the general director, who is the sole founder and participant of this company, could not be concluded, are unfounded and are based on an incorrect interpretation of the law by the applicant himself.
There are also earlier positive decisions of the courts on this issue. For example, Decrees of the FAS of the West Siberian District of November 10, 2008 N F04-4991 / 2008 (15688-A45-25), FAS of the Volga-Vyatka District of October 30, 2008 N A11-1435 / 2008-K2-21 / 81 and FAS of the Volga District of September 2, 2008 N A65-266 / 08.
Thus, despite the incomprehensible desire of our ministries to review the established practice of employment and payment of wages to the CEO, who is the only founder, organizations are unlikely to have serious problems. The position of officials is very shaky, which is confirmed by judicial practice.
I.Tolmachev
Journal Expert
According to the Labor Code of the Russian Federation, regulations and constituent acts of an LLC, an individual who manages an organization also performs the functions of an executive body in a sole context.
An employment contract is concluded with the manager and the organization, which brings these labor relations into the context of labor law norms.
In accordance with Art.
LLC does not operate: CEO salary
22 and 56 of the Labor Code of the Russian Federation, the employer is responsible for the timely payment of salaries to employees of the organization. For violation of this obligation, the organization may be fined in the amount of 30 to 50 thousand rubles, or the organization may be suspended for a period of up to three calendar months.
It is easy to assume that in order to avoid such negative consequences, it will be easier for the organization to accrue and pay the salary of the founding director on time.
In the event that the general director of an LLC is its only participant, then the situation takes on very confusing features.
Rostrud, in its letter No. 2262-6-1, claims that signing an employment contract in this case is impossible, since the contract is signed by one person, both on the part of the employer and the employee. In this case, the sole member of the company must be assigned the functions of a director. Which will become the sole executive body. This position is also supported by the Ministry of Health and Social Development, indicating that in this case, the activities of managing the organization should be carried out without concluding any contract.
It would be logical to assume that the activities of the director cannot be regarded as labor and, therefore, are not subject to payment. This is wrong.
It can be seen from the activities of arbitration courts that the activities of the directors of the sole employees and founders of an LLC are labor, even without the conclusion of employment contracts.
We conclude that even if the founder of the organization is its only participant and he is also the director, then labor relations arise between him and the organization, which entail the payment of wages.
