Employment contract with the director: when and how to conclude (or not). Do I need an employment contract with the director - the only participant

Management in LLC

The Civil Code of the Russian Federation directly provides for both the possibility of establishing an LLC by one founder, and the admissibility of the operation of an LLC, initially established by several persons, later with one participant.

This can happen either as a result of the retirement of the remaining founders from the LLC over time, or in the event of the acquisition by one person of 100% of the shares of the LLC (part 2 of article 88 of the Civil Code of the Russian Federation). If in business practice the term “founder of an LLC” is usually used, then the legislator prefers to use the term “participant of an LLC”. From a legal point of view, these terms are almost identical: the founder is the participant who was involved in the creation of the LLC. In what follows, we will ignore this minor difference.

Management in an LLC can be:

1. Three levels including:
   • general meeting of participants (GMS);
   • board of directors (BoD);
   • one or more executive bodies.
2. Two-level, without SD formation. For an LLC with 1 participant, the presence of a SD in the management system does not make practical sense; in this case, a two-level management system is used.

Executive power in an LLC can be organized in 3 ways:

1. sole executive body. In practice, this body/position is most often referred to as the "general director", although there are other names.
2. The sole executive body together with the collegial executive body (usually there are the names "board" or "management").
3. The management company is another legal entity that performs the functions of an executive body.

When matched founder and director of LLC in one person usually the 1st variant of the organization of the executive body is used.

The main governing body of the LLC is the OSU, it makes decisions on the most important issues of the functioning of the LLC. The competence of the OSU is determined by art. 33 of the Law "On Limited Liability Companies" dated February 8, 1998 No. 14-FZ (hereinafter - Law No. 14-FZ). A number of issues relate to the exclusive competence of the GMS, i.e. their resolution cannot be transferred to another body of the LLC by the charter of the company. If there is only one participant in the LLC, then he makes decisions on behalf of the GMS alone. Such decisions must be made in writing. In this case, a number of provisions defined by Law No. 14-FZ in relation to the OSU do not apply (Article 39 of Law No. 14-FZ).

Can a founder be a director of an LLC?

A direct and positive answer to this question is contained in Part 2 of Art. 88 of the Civil Code. Note that when the director and founder are in one person, the management system in an LLC does not become one-level. Although all decisions at any level of management in such an LLC are made by the same person, from a legal point of view, this is a two-level management system. The issue of differentiation of competence is solved as follows:

• the powers of the participant are determined by the charter of the LLC;
• all other issues are resolved by the general director on a residual basis (in the absence of a board of directors in the management system).

For an LLC with one participant (who is also a director), the rules of Law No. 14-FZ on interested-party transactions and major transactions do not apply (part 1, clause 5, article 45 and part 1, clause 9, article 46 of the said law).

In an LLC with a single member, there is no conflict of interest, it is simple in administration and resembles an individual entrepreneur from a managerial point of view. However, legally there are significant differences between an individual entrepreneur and such an LLC.

Founder and CEO in one person: employment contract

One of the main issues that arise in practical life is the issue of an employment contract (TD) with the director. The features of drawing up a TD in this case are discussed in the article "Employment contract with the general director of an LLC (sample)". Chapter 43 of the Labor Code of the Russian Federation (LC) is devoted to the issues of an employment contract with the director (as well as members of the board). However, in the event of a coincidence of a participant in an LLC and its director, its regulation does not apply (part 2 of article 273 of the Labor Code). At the same time, the director of an LLC is not included in the list of persons to whom the regulation of the Labor Code does not apply and with whom an employment contract is not concluded (part 8 of article 11 of the Labor Code). There is some legal uncertainty.

An additional complication lies in the following: if an LLC concludes a TD with a director, then who signs it on behalf of the employer?

It turns out a kind of legal paradox: TD on behalf of the employee and on behalf of the employer must be signed by the same individual. Note that in this case, an individual is in a different status: in one case, he acts on his own behalf (employee), and in the other, he is a representative of a legal entity. Note that the ban on the conclusion of transactions for a representative in relation to himself as an individual is contained in paragraph 3 of Art. 182 of the Civil Code. But the regulation of the Civil Code does not apply to labor relations, and there are no such prohibitions in the Labor Code.

Law enforcement practice: TD with a director in an LLC with one participant (aka director)

As a result, different law enforcers expressed different views on this subject and formed different law enforcement practices in their activities. Let's consider the expressed points of view.

1. Rostrud, in a letter dated 03/06/2013 No. 177-6-1, stated that an employment contract with the director was not concluded in this case.
2. On March 10, 2015, the online inspection.rf website (Rostrud information portal) answered that no TD (and no other contract) is concluded in such a situation, the director’s salary is not accrued, and deductions to the Pension Fund and the Social Insurance Fund are not made. But on March 17, 2016, the opposite answer was given to the same question: the TD is concluded, the salary is accrued.
3. The Ministry of Health and Social Development believes that in this case, labor relations arise regardless of whether a TD is concluded or not (Order No. 428n of June 8, 2010). In this case, the director is subject to compulsory social insurance. Note that this department does not currently exist, and its successor, the Ministry of Labor, did not give an official explanation (there are only the above-mentioned consultations of Rostrud, a service subordinate to the Ministry of Labor and Social Protection).
4. The Ministry of Finance believes that in this situation a TD is not concluded (letters No. 03-11-06/2/7790 dated February 19, 2015, No. 03-11-11/52558 dated October 17, 2014). At the same time, the accrued salary cannot be included in the composition of costs that reduce the taxable base. The first of the above letters is applicable to organizations that are on the simplified taxation system (simplified taxation system), the second is for enterprises paying UST (agricultural tax).
5. The judicial authorities are of the opinion that in such a situation, labor relations arise (decree of the FAS ZSO dated November 9, 2010 in case No. A45-6721 / 2010 and a number of other precedents). In an important definition of the Armed Forces of the Russian Federation dated February 28, 2014 No. 41-KG13-37, it was concluded that such labor relations are regulated by the general provisions of the Labor Code (recall that Chapter 43 of the Labor Code does not regulate them). This point of view is confirmed in paragraph 1 of the decision of the Supreme Arbitration Court of June 2, 2015 No. 21). In a number of court decisions, it was concluded that labor decisions arise on the basis of the decision of a single participant, while registration of a TD is not required (determination of the Supreme Arbitration Court dated June 5, 2009 No. VAC-6362/09).

Founder and director are one person: risks

How to be an entrepreneur in such a situation? There is no single answer. But we believe that the risk of adverse consequences is much higher in the absence of TD with the director. Rostrud, which is the control body in the field of labor and is authorized to conduct inspections and impose administrative penalties, as mentioned above, often changes its point of view on this issue.

Sole founder - CEO in 2 companies

The legislation does not contain prohibitions for the sole participant of an LLC to hold the position of director in 2 or more such LLCs. But only one AP in this case is the main one. In the rest of the LLC, the director must draw up a TD on part-time work. All part-time contracts are subject to the rules of Ch. 44 of the Labor Code, including the norm on the length of the working day not exceeding 4 hours (Article 284 of the Labor Code) and the norm on the calculation of wages in proportion to the established working hours (Article 285 of the Labor Code).

IMPORTANT! The rule on the need for a permit to work part-time by a higher management body of an LLC, contained in Art. 276 of the Labor Code, does not apply to the founding director, since it is located in Ch. 43 of the Labor Code, and this chapter does not apply to this situation.

Note that a large number of simultaneously occupied directorial positions is a reason for verification by the tax inspectorate. So, one of the criteria for the possible unreliability of the information included in the Unified State Register of Legal Entities is the combination by an individual holding a director's position, more than 5 such positions in different organizations (letter of the Federal Tax Service dated 3.08.2016 No. GD-4-14 / [email protected]).

LLC with one participant (aka director) is a very common and convenient practical tool for entrepreneurship in business life. In order to avoid problems with state regulatory authorities, we recommend (at the moment) to conclude an employment contract with a director in such an LLC. Before creating a trading house with a director, it is necessary to draw up a written decision of the sole participant of the LLC on his appointment.

The only founder and director in one person is a typical picture for a small business. Moreover, turning a startup into profit often requires the manager to invest a year or even more in its development of labor and money, without receiving anything in return.

In such a situation, paying the director's salary is a luxury that not everyone can afford. The luxury of paying insurance premiums from a salary, maintaining personnel records and submitting a huge amount of “salary” reporting.

Meanwhile, in the already established business, they want something fundamentally different - social guarantees (sick leave, vacations), the formation of pension savings, and a monthly salary. These are the benefits of an employment contract.

Is it necessary to conclude an employment contract and pay a salary if your company has the sole founder and director in one person? Unfortunately, there is no single official answer to this question. And if you came here for the exact "yes or no", then I will immediately disappoint you.

Meanwhile, there are advantages - to use the situation in a way that is beneficial to you. And in both cases, guided by the norms of the law.

Employment contract with a single founder

All official sources who are called upon to clarify controversial issues - Rostrud, the Ministry of Finance, extra-budgetary funds, courts - like capricious young ladies, put forward opposite points of view. And with references to the legislation. That does not prevent them from changing their position to the opposite after a while.

By the way, the letters of Rostrud and the Ministry of Finance are not legal acts, they contain only explanations and opinions and cannot have legal force.

Above, we have already briefly outlined the reasons why an employment contract with a single founder can be beneficial, we repeat:

• – the ability to receive monthly income from the business, regardless of the presence of profit;
• — social guarantees (payment for vacations and various benefits);
• - formation of pension insurance experience for calculating pensions.

Examples of opinions of officials against the conclusion of an employment contract: letters of Rostrud dated 06.03.2013 No. 177-6-1, dated 12.28.2006 No. 2262-6-1, letter of the Ministry of Finance dated 02.19.2015 No. 03-11-06/2/7790, letter of the Ministry of Health and Social Development dated August 18, 2009 No. 22-2-3199. Here are their arguments:

1. If the sole founder and director are in one person, then the employment contract will contain two identical signatures, it is with itself, which is impossible.

In paragraph 3 of Art. 182 of the Civil Code of the Russian Federation states that an agreement signed by the same person on both sides has no legal force. But the provisions of this article do not apply to labor relations, this is civil law.

1. Article 273 of the Labor Code from chapter 43 (labor relations with the head) states that the provisions of this chapter do not apply to managers who are the only participants (founders) of their organizations.

As you can see, the statements are very controversial.

The employment contract of the director with himself or with the company?

What arguments can be made in your favor if you are the only founder and director in one person and want to conclude an employment contract?

1. The parties to the employment contract are different– the director as an individual and the organization as a legal entity. It is known that a legal entity has its own legal capacity and acts in legal relations on its own behalf, and not on behalf of its founders. Therefore, the director's employment contract "with himself" is possible.
2. Chapter 43 of the Labor Code, to which officials refer, describes relations with a leader who is not a founder. In the Labor Code itself, there is no prohibition to conclude an employment contract with a single founder. And even in Article 11, among the persons to whom labor legislation does not apply, the founding director is not named.

Indirectly confirms the possibility of concluding an employment contract with a single founder insurance law. So, for example, in paragraph 1 of Article 7 of Law No. 167-FZ of December 15, 2001 “On Compulsory Pension Insurance in the Russian Federation”, we find that the insured persons are “working under an employment contract, including heads of organizations who are the only participants (founders).

There are similar provisions in laws No. 326-FZ of November 29, 2010 (medical insurance) and No. 255-FZ of December 29, 2006 (social insurance).

Order for the director - the sole founder

Labor relations with the General Director are formalized in accordance with all the rules of labor legislation, with the conclusion of an employment contract. If the founder is the only one, then the contract can be concluded for an indefinite period.

The text of the agreement states that this employee “is entrusted with the duties of the general director on the basis of the decision of the founder (participant) No. ... .. dated ......”.

Those. First you need to sign the decision of the only member of the company. The decision will say: "I assign the duties of the general director to myself."

Based on the decision, an order is issued for the director - the sole founder, which says something like the following: I, full name, begin to fulfill my duties as the general director of LLC “...” from (date). Grounds: decision of the sole participant of the company No. ... dated ...

The requirement to issue an employment order is contained in Art. 68 of the Labor Code of the Russian Federation. A job entry is made in accordance with the general rules established by the Rules for maintaining and storing work books (approved by Decree of the Government of the Russian Federation of April 16, 2003 N 225), as well as the Instructions for filling out work books, approved. Decree of the Ministry of Labor of the Russian Federation of October 10, 2003 No. 69.

The signed order on the performance of duties will be an order for employment. Based on the concluded employment contract and order, an entry is made in the work book.

The entry in the work book is done as follows:

• - in column 3: Appointed to the position of General Director
• - in column 4: details of the order

If you plan to conclude an employment contract not only with the director, but also hire other employees, then.

Salary of the director - the sole founder

The employment contract will provide for the payment of wages to the director. Its size must be economically justified (Article 273 of the Tax Code - expenses are economically justified and documented).

Please note that the salary of the director - the sole founder can be paid only upon signing an employment contract. If it is not, then the tax authorities will not recognize it as an expense.

The explanation is simple - among the expenses that cannot be taken into account when calculating the tax base for income, the Tax Code indicates any remuneration to managers, except for an employment contract (clause 21, article 270 of the Tax Code of the Russian Federation).

The salary of the director is paid according to the same rules as the rest of the employees, there are no differences. Personal income tax is also withheld and insurance premiums are charged.

Sole founder and director in one person without an employment contract

There is also a reverse situation when the founder does not want to conclude an employment contract, but performs managerial functions. Since we refuted the arguments of the Ministry of Finance and Rostrud, we will not refer to their conclusions and justifications. Let's go from the other side - from the position of civil law.

Article 53 of the Civil Code, Art. 32, 33, 40 of the Law "On LLC" indicate that the director is the sole executive body of the company and carries out the day-to-day management of the activities of the LLC.

There is no link to the presence or absence of an employment contract and payment of wages. From the moment the sole founder, by his decision, assumes the functions of the sole executive body, he receives managerial powers.

Thus, the only founder who wants to manage his organization himself has the right to either conclude an employment contract or do without it.

SZV-M for founding director

All employers are required to submit a report to the FIU in the SZV-M form. This must be done no later than the 15th day of the month following the reporting month. Until March 2018, according to the official position of the Pension Fund, SZV-M did not need to be filed against a founding director with whom an employment contract was not concluded and who did not receive a salary. This was explained by the fact that such persons were not recognized as employees, and therefore insured persons.

However, the FIU has changed its position since March 2018. Now SZV-M is submitted to the founding director in any case, regardless:

• - the presence or absence of an employment contract concluded with him;
• - the presence or absence of salary payments to him;
• - conducting business activities by the organization or stopping it.

Also, the SZV-STAZH report is submitted to the founder.

Officials explain their demand by the fact that Article 16 of the Labor Code states that even without a concluded employment contract, in this case, labor relations arise with the employee due to his actual admission to employment.

On this topic, you can read: PFR letters No. LCH-08-24/5721 dated 03/29/18, 17-4/10/B-1846 dated 03/16/18.

Moreover, regional offices for reinsurance require to include in the SZV-M not only the founder in the singular, but also all the founders, if there are several of them.

Is the Founding Director included in the PCA?

The form of Calculation of insurance premiums (RSV) in section 3 includes personalized information about the amount of wages accrued to each employee.

Therefore, if an employment contract is concluded with the founding director and a salary is paid to him, then such an individual and payments to him must be clearly reflected in section 3.

However, according to the latest position of officials (letter of the Ministry of Finance of June 18, 2018 No. 03-15-05 / 41578, letter of the Federal Tax Service No. GD-4-11 / [email protected] from 02.04.2018) section 3 of the RSV should also include data on the director - the sole founder, even if an employment contract has not been concluded with him, and he does not receive a salary. In this case, in subsection 3.2 there will be zero indicators.

Officials explain this by the fact that despite the lack of payments, such a person does not cease to be insured. And it is insured because labor relations still exist, even without an employment contract.

In this article, we deliberately considered not only the problem of concluding or not concluding an employment contract, but also the reporting to be submitted. Because in the same situation, the same organs say completely different things. Fiction! There cannot be an employment contract in principle, but at the same time it is. As well as the obligation to file reports.

No matter what you do, you will still be wrong! Therefore, there is only one conclusion - do what suits you best - by concluding or not concluding an employment contract. But in the reports, the only founder and director in one person must be mandatory.

If you have no time to waste time on accounting routine, if you have more important business tasks, then write on the page or in the online chat, we will be happy to help you. In the comments, you can ask questions about the content of the article, if you have any.

04.06.2017

According to the experts of the consulting company "Dikes Consulting" (for more details, see the website http://dikesco.ru/), in practice there are situations when the founder or one of the owners of the company performs the functions of a leader without receiving remuneration for this. Such activity is quite legitimate, since, according to Art. 65 of the Civil Code, the management of an enterprise can be carried out directly by the owner or a person authorized by him, incl. a hired manager with whom an employment contract (contract) is concluded.

However, a natural question arises regarding the legal nature of legal relations, when the founder (participant) of an enterprise performs the functions of its head, and whether he should receive remuneration for his activities in the form of wages.

There is no well-established jurisprudence that would provide clarification of this issue directly. However, there are many court decisions that in one way or another relate to the activities of business leaders with or without remuneration.

Legitimacy of the founder to exercise the functions of a manager without concluding an employment contract and paying wages

The legal position regarding the legitimacy of the founder of an enterprise performing the functions of a director of the same enterprise without concluding an employment contract and, accordingly, receiving wages is set out in the decision of the Sumy District Administrative Court dated March 26, 2012 in case No. 2a-1870/1072/12.

According to the materials of the case, the charter of the enterprise provided that its founder performs the duties of a director and at the same time receives remuneration in the form of dividends, and wages are not paid to him. Based on the results of the tax audit, the supervisory authority issued a tax notice-decision by which it determined the liability for personal income tax. According to the tax authorities, when managing the enterprise, the founder was actually in an employment relationship, therefore, he had to receive wages and pay personal income tax. Lost wages were calculated on the basis of the minimum wage.

Disagreeing with the conclusions of the supervisory authority, the taxpayer went to court with a request to cancel the tax notice-decision. The court supported the plaintiff, pointing out that the conclusions of the tax authority are groundless, since the management of the enterprise by the founder is provided for in the company's charter, and indicated that "given such provisions of the company's charter, the court considers the defendant's conclusion that the founder of the company, who acted as director, worked for on the basis of an employment contract and had to receive wages as an employee.

To substantiate the position on the legitimacy of the founder of the enterprise performing the functions of a director without an employment contract, one can also use the conclusions of the Constitutional Court set forth in the decision of 01/12/2010 in the case of the constitutional appeal of the International Financial and Legal Consulting Limited Liability Company on the official interpretation of Art. 99 of the Civil Code.

In this case, the Constitutional Court decided whether the procedure for dismissing the director of an enterprise with whom an employment contract was not concluded should comply with the requirements of labor legislation. The court noted that the removal of the head of the executive body of the company (manager) under civil law and the removal of an employee from work under labor law have a different legal nature and various legal consequences. From this we can draw a logical conclusion that the CS also highlights the possibility of the manager, who is a participant or founder of the enterprise, managing a business entity without concluding an employment contract and receiving wages.

From all of the above, it follows that the owner (founder, participant) of an enterprise can manage his own business without formalizing labor relations and receiving wages. He has the right to decide on the activities of the enterprise in accordance with the provisions of the constituent documents of the legal entity, and the relations that arise when the founder performs the functions of a director are corporate.

Illegitimacy of the founder to exercise the functions of a manager without concluding an employment contract and paying wages

At the same time, the Supreme Administrative Court, in its previous decisions, expressed a position directly opposite to the above. So, in the decision of the Supreme Arbitration Court dated 04.06.2008 in case No. K-32016/06, we see the wording "... if the founder of the enterprise is both its director and then an employee ...".

Based on the materials of this case, the enterprise filed a lawsuit against the Pension Fund Administration to invalidate the agency's demand for the payment of debt in the form of additionally assessed insurance premiums for compulsory state pension insurance. The requirement was based on the fact that the founder of the enterprise actually performed the functions of a manager, and his work was not paid. Therefore, the Pension Fund accrued additional monetary obligations to pay the fee from the amount of the minimum wage.

The SAC agreed with the conclusions of the courts of previous instances and concluded that when the founder of an enterprise is also its director, he is an employee and must receive remuneration for his work, from which all due taxes and fees must be paid. Unfortunately, in this decision, the Supreme Arbitration Court does not substantiate such a short but categorical conclusion in any way.

A similar position was expressed by the Supreme Arbitration Court in its ruling dated September 13, 2006 in case No. K-6605/06. Without duplicating the description of the plot of the case, it is worth pointing out that here the court of cassation also unquestioningly declares that if the founder of the company performs the functions of a director, he should be considered an employee and pay according to labor legislation.

These decisions are worthy of attention, however, of course, they have no regulatory significance today.

In general, it can be concluded that the relations that arise when the founder performs the functions of a director without concluding an employment contract are corporate, and therefore, in this case, there is no obligation to pay wages and pay personal income tax, military duty or ERUs from it.
Number of impressions: 1842

The Ministry of Finance of Russia and Rostrud are sure that it is impossible to conclude an employment contract with the director - the sole founder of the company, since there are no labor relations. However, the Ministry of Health and Social Development of Russia, funds and judges have a different opinion.

As a rule, an employment contract with the head of the company does not cause difficulties. Moreover, chapter 43 of the Labor Code is dedicated to him.

However, everything is not so simple if the company has a single member and he also becomes a director. It's all about a clause in the Labor Code. It says that the norms of Chapter 43 “Peculiarities of labor regulation of the head of an organization” do not apply to cases where the head of the company is the only participant (founder), member of the organization, owner of its property (Article 273 of the Labor Code of the Russian Federation). From this we can conclude that the relationship between the company and its director - the only participant is not labor.

An employment contract is not concluded if the relationship is not employment

Such an unchanged position was taken by Rostrud (letters of Rostrud dated 06.03.2013 No. 177-6-1, dated 28.12.2006 No. 2262-6-1). He pointed out that it was impossible to conclude an agreement with oneself, since the signing of an employment contract by the same person on behalf of the employee and on behalf of the employer is not allowed. It was also stated that the parties to labor relations are the employee and the employer. An employee is a natural person who has entered into an employment relationship with an employer. An employer is an individual or a legal entity (organization) that has entered into an employment relationship with an employee.

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. Thus, labor legislation does not apply to the relations of the sole participant of the company with the company founded by him. As Rostrud points out, the only member of the company in this situation must, by its decision, assume the functions of the sole executive body - director, general director, president, etc. Management activities in this case are carried out without concluding any contract, including labor.

Other departments were not so categorical and changed their position over time.

Thus, the Ministry of Health and Social Development of Russia in its letter (letter of the Ministry of Health and Social Development of Russia dated August 18, 2009 No. 22-2-3199) fully shares the above point of view of Rostrud.

She was also supported by the Social Insurance Fund of the Russian Federation, pointing out that cases when the head of an organization is the sole owner of its property are not regulated by labor legislation ().

However, both departments subsequently took opposite positions.

An employment contract can be concluded if the employment relationship

Changing their position, employees of the FSS of Russia and the Ministry of Health and Social Development of Russia called the following arguments (letter of the FSS of Russia dated December 21, 2009 No. 02-09 / 07-2598P; order of the Ministry of Health and Social Development of Russia dated June 8, 2010 No. 428n). The Labor Code does not contain provisions prohibiting the application of its general provisions to labor relations when the employee and employer are the same person. Labor relations that arise as a result of election, appointment to a position or approval in a position are characterized as labor relations on the basis of an employment contract (Article 16 of the Labor Code of the Russian Federation). The relationship of the head with the organization, where he is the only participant, meets all the signs of labor relations (Article 15 of the Labor Code of the Russian Federation):

• based on an agreement between the employee and the employer;
• the employee personally performs his labor function;
• work is done for a fee;
• the employee has a specific specialty, profession according to the staffing table;
• the parties to the agreement are subject to the rules of the labor schedule.

At the same time, all social guarantees apply to the specified manager and he is entitled to temporary disability benefits and ties with motherhood.

It should be noted that the departments have changed their point of view under the influence of uniform judicial practice, which is steadily developing in favor of the conclusion of an employment contract with the director - the only participant (determination of the Supreme Arbitration Court of the Russian Federation of 05.06.2009 No. /2008,20-161; judgment of the Eighteenth AAC dated March 18, 2014 No. 18AP-1388/14 in case No. A76-15808/2013 (determination of the Supreme Court of the Russian Federation dated November 28, 2014 No. 309-KG14-4819 denied transfer for review), Ninth AAC dated 05/26/2010 No. 09AP-10226/2010, AS DVO dated 12/09/2014 No. F03-5420/14, FAS DVO dated 10/19/2010 No. F03-6886/2010; appeal rulings of the Krasnoyarsk Regional Court dated 08/20/2014 in the case No. 33-8058/2014, of the Moscow Regional Court dated February 7, 2013 in case No. 33-2788/2013).

An interesting point of view was expressed by the Supreme Court of the Russian Federation (determination of the Supreme Court of the Russian Federation of February 28, 2014 No. 41-KG13-37): if between a company and its head, who is the sole participant (founder) of this organization and the owner of its property, the relationship is formalized by an employment contract, for the specified head, the general provisions of the Labor Code apply.

That is, the form in this case determines the content: if an employment contract is concluded, then the relationship has developed labor.

Labor relations, but formalized by the decision of the participant

It would seem that some clarity has come in this matter. Rostrud remained in the minority. The courts, the FSS of Russia and the Ministry of Health and Social Development of Russia support the idea of ​​the necessity and legitimacy of an employment contract.

And then the Ministry of Finance of Russia unexpectedly issued a letter (), where he fully reproduced the position of Rostrud, which is as follows: The Labor Code provides that an employment contract involves two parties: an employee and an employer. In the absence of one of the parties to the employment contract, it cannot be concluded. If the head of the organization is its sole founder, that is, one of the parties to the employment contract is missing, the employment contract cannot be concluded. In this regard, employees of the financial department proposed to accrue dividends quarterly with the taxation of their personal income tax.

The opinion seems to the author to be controversial from a legal point of view, since in this case it is absolutely unreasonable to talk about the absence of one of the parties to the employment contract. Both parties are available: on the part of the employer - a company, that is, a legal entity, on the part of the employee - an individual.

It is also quite obvious to the author that it is impossible to equate an LLC consisting of a single participant - an individual, and this individual himself. These are different persons in terms of law, they have different legal status, rights and obligations, legal capacity, taxation. This is evidenced by the norms of the Civil Code, the Tax Code and judicial practice. So, for example, considering one of the cases, the judges (the appeal ruling of the Chelyabinsk Regional Court dated November 27, 2014 in case No. a legal entity and an individual, that is, different subjects of legal relations.

The exclusion of the possibility of applying to relations between a legal entity and its leader, who is the only member of the company, the general provisions of labor legislation violates the rights provided for by the Constitution of the Russian Federation: freely dispose of one’s abilities for work, choose the type of activity and profession, the right to remuneration for work and paid annual leave, and also for social security by age (Articles 37, 39 of the Constitution of the Russian Federation).

What is especially strange, the Ministry of Finance of Russia in its letter (letter of the Ministry of Finance of Russia dated 15.03.2016 No. 03-11-11 / 14234) referred to the decision of the Supreme Arbitration Court of the Russian Federation (determination of the Supreme Arbitration Court of the Russian Federation dated 05.06.2009 No. 6362/09 in case No. A51- 6093/2008, 20-161). However, in this judicial act, although the court came to the conclusion that an employment contract with the director - the sole founder may not be concluded, it also indicated that the relationship in this case is labor, the director is an employee in relation to the company, which means that it is subject to the norms of the Labor Code and compulsory insurance. And most importantly, in the definition there is no prohibition on concluding an employment contract in the case we are considering. Although the court came to the conclusion that labor relations in this situation are formalized by the decision of the participant on the appointment of the director (Article 39 of the Federal Law of February 8, 1998 No. 14-FZ).

If the local tax authorities perceive the letter of the Ministry of Finance of Russia as a direct guide to action and consider it legal in this situation only to pay dividends, but not to pay the director’s wages, then we may encounter tax authorities’ refusal to recognize the salary of the director, the only participant, as a legitimate and justified expense.

At the same time, the author believes that this situation is still unlikely, since taxation remains the same: it does not matter whether the payment is quarterly or monthly, 13 percent of personal income tax is still paid from it (Articles 210, 214, paragraph 1 of Article 224 of the Tax Code of the Russian Federation) .

And if wages are paid, the budget not only did not suffer, but also received personal income tax earlier than if you follow the position of the Russian Ministry of Finance. At the same time, the option with dividends proposed by the financial department can be used, because the participant is entitled to dividends, and they are also not subject to insurance premiums. When paying dividends to a member of the company, such amounts will not be related to the fact that he has labor relations with the company or relations under civil law contracts, the subject of which is, among other things, the performance of work or the provision of services, which means that these amounts will not be subject to insurance premiums ( Part 1, Article 7 of Federal Law No. 212-FZ of July 24, 2009; Clause 1 of Article 20.1 of Federal Law No. 125-FZ of July 24, 1998; Letters of the FSS of Russia of December 18, 2012 No. 15-03-11/08- 16893, dated November 17, 2011 No. 14-03-11/08-13985). At the same time, only paying dividends without payroll can also be dangerous, since funds may consider this a way to avoid contributions and reclassify these payments into wages.

Lack of an employment contract is punishable by a fine

If in the described situation you do not conclude an employment contract, the state labor inspectorate may consider this an administrative offense and bring it to justice for violating labor laws (Article 5.27 of the Code of Administrative Offenses of the Russian Federation). Responsibility may be as follows: a warning or the imposition of an administrative fine on officials in the amount of 1,000 to 5,000 rubles, a fine on legal entities - from 30,000 to 50,000 rubles.

And the courts confirm this, pointing out that from the Labor Code (Articles 11, 273 of the Labor Code of the Russian Federation) it follows that the person appointed to the position of director of the company is its employee, and relations between the company and the director as an employee are regulated by labor law. At the same time, the Labor Code does not contain provisions prohibiting the application of the general provisions of the Code to labor relations when the employee and the employer coincide in one person (decision of the Primorsky Regional Court dated September 22, 2015 in case No. 21-1087 / 2015).

The absence of an employment contract will increase income tax

The organization has the right to take into account the costs associated with the payment of wages to employees when forming the taxable base (clause 1, article 255 of the Tax Code of the Russian Federation). However, remuneration accrued to managers and employees, but not provided for by an employment contract, does not reduce taxable profit (clause 21, article 270 of the Tax Code of the Russian Federation). Therefore, in order to take into account payments in favor of the sole founder in expenses, they must be provided for by the employment contract. Formally, the legitimacy of accounting for the cost of paying salaries can also be confirmed if the employment contract is not concluded in writing. After all, as the author has already pointed out, as a result of the appointment to the position of the head, labor relations arise between him and the organization. At the same time, such an approach may cause claims from the tax authorities during the audit, and its legitimacy will have to be defended in court.

What can be recommended to the director - the only participant in such a confusing situation among the conflicting opinions? Since it is obvious that the advantages of having an employment contract in the situation under consideration are much greater than the disadvantages, according to the author, the following options are possible:

1. draw up an employment contract, calculate and pay wages on the basis that all judicial practice, the Ministry of Health and Social Development of Russia, the FSS of Russia and the labor inspectorate support this option;
2. draw up an employment contract and receive part of the funds as wages, as well as accrue and pay dividends to yourself already as a member of the company. Both of these options are reasonable, legal and justified. It will also help you save on insurance premiums.

Important!

The Ministry of Finance of Russia believes that if the head of the organization is its sole founder, that is, one of the parties to the employment contract is absent, the employment contract cannot be concluded.