Our company now has financial difficulties. The CEO wants to avoid paying himself a temporary salary and not paying taxes on it in order to pay employees (he himself has a large salary in the company). How can this be done? (he doesn’t want to take out a leave without saving; he wants there to be accruals, but no payments or taxes). Is there a way out of this situation?

The director is the same hired employee as the rest; he is also subject to the rules of labor legislation, obliging employers to pay wages to employees in the established amount 2 times a month.

Accordingly, for non-payment or delay in payment wages the organization may be brought to administrative liability - with a fine in the amount of 30,000 to 50,000 rubles. ().

In this case, a representative of the employer may also be held liable - a fine of 1,000 to 5,000 rubles may be imposed on the person responsible for compliance with labor laws, and disqualification for a period of one to three years is also possible (in case of repeated violation). At the same time, there is no clear answer to the question of who exactly can be involved in the event of non-payment of wages to the director - the director himself, as the person responsible for paying wages to employees, or the person who signed an employment contract with the director on behalf of the founders (for example, the chairman of the general meeting participants). There are no official explanations on this issue, there is no judicial practice.

Thus, the organization is obliged to pay the director a salary twice a month.

However, if an organization is experiencing financial difficulties, its size can be reduced by agreement of the parties to the contract ().

In an LLC, the employment contract on behalf of the organization must be signed by the person who chaired the general meeting of participants, where the general director was elected, or by the company participant who is authorized by the decision of the general meeting. Consequently, the salary of the general director can be reduced either at a general meeting of the company’s participants (the supporting document in this case will be the minutes of the general meeting of participants), or by a decision of an authorized participant of the company. He can prescribe new conditions for remuneration of the general director in an additional agreement to the employment contract (Law No. 14-FZ of February 8, 1998).

In addition, the director can set a part-time working schedule, in which case his work can be paid in proportion to the established time or depending on output. A decision on the director’s part-time working time can also be made either at a general meeting of the company’s participants (the supporting document in this case will be the minutes of the general meeting of participants), or by a decision of an authorized participant of the company.

It is possible for a director to take leave without pay, but this may cause difficulties in the work of the organization - after all, if the director is on vacation, he cannot properly exercise control and management of the organization, sign Required documents... In this case, at the same time as registration from vacation, the manager will need an order to transfer authority to another employee, a power of attorney for the right to act on behalf of the organization.

The rationale for this position is given below in the materials of the Glavbukh System.

Salary payment terms

The organization must pay wages deadlines ().

The payment terms must be specified in one of the internal documents:

• in a collective or labor agreement;
• in the Labor Regulations.

Frequency of salary payment

The organization is obliged to pay wages at least every half month (). If the established payment day coincides with a weekend or non-working holiday, pay the salary on the eve of this day ().

Responsibility for delayed wages

Criminal liability can be avoided if the cause of the delay did not depend on the will of the manager.

Financial responsibility of the organization

The financial liability of the organization in the form of payment of compensation for delayed wages is established by the Labor Code of the Russian Federation. The organization is obliged to pay the specified compensation to employees even if the delay in wages occurred due to reasons beyond its control. The amount of compensation for delayed payment of wages must be reflected in the payslips ().

If an organization does not pay compensation voluntarily, then the court can force it (clause 55 of the resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2).*

Losses due to inflation

Situation: Is it legal for an employee to demand compensation for losses associated with inflation during the period of salary delays, simultaneously with compensation for the delay?

Receiving compensation for late payment of wages does not deprive the employee of the right to claim compensation for losses associated with inflation. But to satisfy such demands, the employee must go to court. Such clarifications were given by the Plenum of the Supreme Court of the Russian Federation in paragraph 55 of Resolution No. 2 of March 17, 2004.

Employee rights

An employee has the right to stop working if the salary is delayed for more than 15 days. In this case, the amount of debt and the organization’s guilt (lack of guilt) in the delay do not matter (). Maximum term termination of work - until the debt is fully repaid. Before stopping work, employees are required to notify their supervisor in writing of their actions. After this, they have the right not to come to work at all (part 3 of article 142 of the Labor Code of the Russian Federation, paragraph 57 of the resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2). In this case, employees are required to return to work only the next day after receiving written notification from the organization of their readiness to repay their arrears. In this case, the organization must pay the delayed salary on the day they return to work.*

Such conditions are provided for in the Labor Code of the Russian Federation. There is also a list of cases when stopping work due to delayed wages is prohibited.

Situation: how to pay work time, if the employee stopped working due to a delay in salary that was more than 15 days

The procedure for paying for time off work due to delayed wages is not established by law. Moreover, the Labor Code does not stipulate the employer’s obligation to pay for this time.

But, according to specialists from the Russian Ministry of Labor, an employee has the right to maintain the average salary for the period for which he suspended the performance of his work duties due to a delay in salary. Such clarifications are contained in the letter of the Ministry of Labor of Russia dated December 25, 2013 No. 14-2-337.*

Thus, the time for which the employee stopped working due to the fact that the salary was delayed for more than 15 days, you will pay in the amount of average earnings.

Nina Kovyazina,

2. Situation: who should sign an employment contract with general director on behalf of the organization

On behalf of joint stock company the employment contract with the general director must be signed by the chairman of the board of directors (or supervisory board). It may also be a person who is authorized by that governing body. This is stated in paragraph 3 of Article 69 of the Law of December 26, 1995 No. 208-FZ.

In an LLC, the employment contract on behalf of the organization must be signed by one of the following persons:

• the chairman of the general meeting of participants or a member of the company who is authorized by the decision of the general meeting;
• the chairman of the board of directors (supervisory board) of the company or a person authorized by a decision of the board of directors (supervisory board) if the resolution of such issues is referred by the charter to the competence of these structures of the company.

This procedure is provided for in paragraph 1 of Article 40 of the Law of February 8, 1998 No. 14-FZ.

For other organizations special rules are not provided for, therefore the agreement on behalf of the organization has the right to be signed by a person authorized to decide on the appointment of the general director to the position. It could also be the person who heads the relevant governing body.

3. Situation:Can the general director of an LLC, appointed to the position by the general meeting of participants, increase his salary by his own order?

No, he can not.

The CEO of an organization has a dual status. He is both an employee who has a labor relationship with the organization and the sole executive body of the organization (). As a leader, he resolves all economic and management issues of the organization. As an employee, you are required to act within the framework employment contract and comply with the Labor Regulations ().

The salary of the general director is a mandatory condition of the employment contract (Part 2 of Article 57 of the Labor Code of the Russian Federation). Such conditions can be changed only by agreement of the parties to the agreement ().

In an LLC, the employment contract on behalf of the organization must be signed by the person who chaired the general meeting of participants, where the general director was elected, or by the company participant who is authorized by the decision of the general meeting. Therefore, there are only two ways to increase the CEO’s salary:

• at the general meeting of the company's participants. The supporting document in this case will be the minutes of the general meeting of participants;
• by decision of an authorized participant of the company. He can stipulate new conditions for remuneration of the general director in an additional agreement to the employment contract.

Nina Kovyazina,

Deputy Director of the Department of Education and Human Resources of the Russian Ministry of Health

Normal working hours

The normal working week should not exceed 40 hours (). During the week, working time must be distributed so that its total duration does not exceed this limit. The most common option is an eight-hour working day with a five-day working week (weekends are Saturday and Sunday).

The working hours regime in force in the organization must be enshrined in the Labor Regulations and. Part-time work means part-time employment of an employee either during the week or during the working day (shift). For example, not five working days, but four, or not eight hours a day (per shift), but six.

Short working hours

Labor legislation provides for a regime of reduced working hours. It is established for certain categories of employees and is counted as a full labor standard (). If we're talking about about the part-time working week, everything non-working days in this case, they are reflected as days off ().*

Partial schedule at the request of the employee

An organization can transfer any employee to work with a part-time schedule at his request (application) or by agreement of the parties to the employment contract.*

In some cases, the organization is obliged to establish such a regime for an employee. This must be done as requested:

• pregnant woman;
• one of the parents (guardian, trustee) with a child under the age of 14 years (disabled child under the age of 18);
• an employee who cares for a sick family member in accordance with a medical report.

This procedure is provided for by the Labor Code of the Russian Federation.

Documenting

Part-time working hours may be provided for in an employment contract or established by order of the manager. In the latter case, if for an employee this regime differs from the general one in force in the organization, this fact must be reflected in the employment contract (). To do this, enter into an additional agreement with the employee to the employment contract on changing the working hours (). In addition, you may need to make changes to internal documents organizations (for example, in an appendix to a collective agreement), if they have established a list of employees for whom part-time working hours apply.

Salary

An employee who is assigned part-time working hours works less than others. His work is paid in proportion to the established time (for example, half the daily rate), or depending on output. In this case, the duration of annual paid leave is not reduced, the calculation procedure length of service does not change, other employee rights are not limited.

This procedure is established by the Labor Code of the Russian Federation.*

Nina Kovyazina,

Deputy Director of the Department

education and human resources of the Russian Ministry of Health

Quite often, in a newly created LLC organization, a situation arises when the sole founder is also the general director, because By law, any LLC is required to have executive agency management. Usually, such a company has no turnover, no employees, nothing but one person, and you want to save on payroll taxes. A logical question arises: is it worth calculating the salary of the general director (hereinafter - salary), i.e. to myself? In this article, let's try to understand this issue, a dispute over which tax authorities have been going on for the second decade. We will also analyze the nuances in which cases taxes on salary can be reasonably reduced.

Who is the CEO?

First you need to understand the status of the leader. There are 2 options: 1) the general director is a hired manager and 2) the general director, who is both a leader and a founder. In the first case, the CEO and founder are 2 different people. The general director is a hired manager, and if an official employment contract has been concluded with him, then according to the Labor Code (Article 22 of the Labor Code of the Russian Federation) he is the same employee as the rest of the organization, be it a personnel officer or an accountant. Salary size at full employment must be no less than the minimum salary established in each individual region. For example, in Moscow today minimum size The salary is 16,500 rubles (according to the additional agreement between the Moscow government, the Moscow Association of Trade Unions and the Moscow Association of Employers dated May 26, 2015 No. 77-783-1) . The maximum wage is not limited (Article 145 of the Labor Code of the Russian Federation). Everything is simple here: if an employment contract has been concluded with the general director, then according to the Labor Code of the Russian Federation, salary must be paid in any case. By the way, if there are several founders in an LLC (two or more), then in this case questions usually do not arise either - the general director must be paid salary according to an official employment contract.

And in a situation where the general director is also sole founder For companies, everything is much more complicated. And this has been the subject of conversation more than once.

History of events and positions

It all started in 2002, when the Labor Code of the Russian Federation clearly stated the obligation to conclude a written employment contract with all employees, without exception, who work in the company.

Then in 2006, Rostrud expressed the opposite opinion. By virtue of Art. 273 of the Labor Code of the Russian Federation, a single founder cannot be recognized as an employee of his company; subsequently, the Ministry of Health and Social Development joined this point of view. Letter No. 2262-6-1 dated December 28, 2006 states that the specifics of regulating the work of the head of an organization are provided for in Chapter. 43 Labor Code of the Russian Federation. In accordance with Art. 273 of the Labor Code of the Russian Federation, the provisions of this chapter do not apply to the head of the organization if he is the only participant (founder) of the organization. Including the provisions of Article 275 of the Labor Code of the Russian Federation on the conclusion of an employment contract with the head of the organization.

Then, in 2010, the ministry again changed its mind and in letter dated 06/08/10 No. 428n stated: in any case, an employment contract is concluded with the director, even if he is the sole founder of the organization. Mine new approach The Ministry of Health and Social Development justified it by saying that only in this way can the manager be provided with social and labor guarantees.

And again the opinion changed. In a letter dated 03/06/13 No. 177-6-1, Rostrud wrote that there is no need to conclude an agreement, and this is indicated in Article 273 of the Labor Code of the Russian Federation, because You cannot make a contract with yourself.

But the final chord in this story was made by the Ministry of Finance of Russia, where in a letter dated 02.19.15 No. 03-11-06/2/7790 it indicated that there is no need to conclude an employment contract with the founding manager. Again there is a link to Art. 273 of the Labor Code of the Russian Federation, which states the impossibility of concluding an agreement with oneself. And if there is no employment contract, then there is no reason to pay a salary to the general director.

To pay or not to pay?

This is where we stopped for today, but is the end finally set? What should you do - conclude or not conclude an agreement? In our opinion, in order to avoid unnecessary troubles, it is best to hire the general director by assigning him the minimum wage or sending him on vacation, which will be discussed later. Why is that?

Despite the encouraging letter of the Ministry of Finance of Russia dated 02/19/15 No. 03-11-06/2/7790 and the latest position of Rostrud in the letter dated 03/06/13 No. 177-6-1 about the unnecessaryness of concluding an agreement with the general director, it is worth understanding that the letters of the Ministry of Finance , like Rostrud, provide only advisory, explanatory character. There is the Labor Code of the Russian Federation and the Tax Code of the Russian Federation, which must be followed. Currently, Rostrud is checking for compliance with labor legislation, and it seems that today there should be fines from Rostrud. However, Rostrud's opinion may change in the future. Judicial practice is based on the mandatory conclusion of a contract, although there is little of it today. Based on all this, the owner and at the same time the general director should be careful: forewarned is forearmed! He risks that in the absence of an employment contract he will have to prove it, waste time and nerves, and the tax office may not fine you, but will charge additional taxes for all unpaid taxes.

Next, let's talk about the case when you decided to conclude an agreement with the general director (Article 16 of the Labor Code of the Russian Federation) in order to reduce risk and difficulties. If there is an agreement, then you need to pay wages. Below we will give ways to justify underestimating taxes when paying salary to the general director. All of them are official and absolutely working.

Legal ways to reduce the salary accrued to the general director

As we found out, if you register the general director according to labor legislation, then he must be paid a salary. And in this case, the general director is one of the organization’s employees along with everyone else. According to Art. 133 of the Labor Code of the Russian Federation, the monthly salary of an employee who has fully worked the standard working hours during this period and fulfilled labor standards (labor duties) cannot be lower than the minimum wage established in the region.

Method No. 1 – leave without pay. The General Director himself issues an order not to accrue his salary without support due to family circumstances; a statement is also required. " Family circumstances"can be different, for example, a wife gave birth to a child. This method contains some risks associated with dissatisfied exclamations from regulatory authorities: “How can the general director carry out his functions and sign documents while on vacation?” But the legislation of the Russian Federation does not clearly state that the powers of a manager terminate during the vacation period. According to the organization's charter, the general director is the executive body who is the representative of the organization and represents its interests in relation to third parties, signs documents and powers of attorney, including while on vacation. In our practice, this method is used most often.

Method No. 2 – payment for downtime. Downtime occurs when a company’s activities are not carried out or it has suspended its activities for a while, for example, the company is selecting premises for an office or making repairs to it. Based on Art. 157 of the Labor Code of the Russian Federation, labor during downtime is not paid in full, but based on two-thirds of the salary. It is not the CEO’s fault for downtime, and in this way his salary can be reduced by a third. It is advisable to issue an order to pay for downtime; there is no need to prepare separate documents.

Method No. 3 – incomplete production. To reduce the salary of the general director, you need to conclude an employment contract for part-time, part-time work, i.e. 0.5 of the minimum wage. Partial working week and part-time work are regulated in Art. 93 Labor Code of the Russian Federation. In this case, the CEO will work 4 hours instead of 8 hours a day, 20 instead of 40 hours a week. If production is incomplete, the director (let’s say in Moscow) will receive a half-time salary = (0.5* 16500) = 8250 rubles. per month. It is necessary to draw up an additional agreement to the employment contract, which states new schedule work. This method is inconvenient because the general director will need to monitor his working hours and not sign documents outside of working hours, so as not to become an object for control by the tax authorities.

Method No. 4 – dividends instead of salaries. A method that is often practiced is that you pay yourself dividends from profits instead of a salary. But if you are just starting out, then you do not have profits with which to pay dividends, so this method is suitable for those who more or less have some kind of turnover. If you decide to work using this method, then you must comply with the basic requirements: payments should be made no more than once a quarter, at the expense of net profit after paying all taxes, based on the decision of the business owner. This method is good, but you need to be careful not to pay dividends every month, otherwise any inspection by regulatory authorities may see the salary here and may add additional insurance premiums.

If at the beginning of the organization’s activities all profits are directed to its development, then dividends may not be paid.

Let's summarize. If you are the CEO and sole founder of your own LLC, then there are 2 options. The first is that you officially hire yourself, i.e. you enter into an employment contract (Articles 16, 22 of the Labor Code of the Russian Federation), and pay yourself a salary in accordance with Art. 133 Labor Code of the Russian Federation. In order to reduce insurance premiums, you can go one of the four ways described above: assign yourself leave without pay, use downtime, enter into an additional agreement for part-time work, or pay dividends instead of salary. All these methods are used frequently and do not cause suspicion among regulatory authorities if everything is done correctly. The second option is more risky - you do not pay yourself a salary and during the audit you refer to Art. 273 of the Labor Code of the Russian Federation, which indicates the impossibility of concluding an agreement with oneself. Also, do not forget about the letter of the Ministry of Finance of Russia dated 02/19/15 No. 03-11-06/2/7790 and Rostrud dated 03/06/13 No. 177-6-1. This method is more risky, because... Judicial practice interprets Art. differently. 273 Labor Code of the Russian Federation. Also, do not forget that letters and explanations from the Russian Ministry of Finance are only advisory in nature and do not constitute law. Therefore, you must understand that you are deliberately taking a risk in the future by saving on insurance premiums and not paying the CEO's salary in the present. Today it works. But who knows how the mood of officials will change in a year...

We are often asked: “Is it possible not to pay the CEO’s salary?” or “can the general director be long time vacation at your own expense so as not to pay wages?”

To start. When you ask a question in the form of “is it possible,” what exactly do you mean ()?

When a CEO is pondering the question “can something be done,” one of the first things he should think about is what he will say when questioned. They’ll call him to the salary commission and they’ll ask: “Dear General Director, why are you working without a salary? Are you evading taxes? Do you want to sit down? If you were on vacation at your own expense, then who signed the documents for you, who managed all the activities that the company conducted. Do you evade taxes? Do you want to sit down?”

One general director will be able to calmly explain that he is the owner of the business, his goal is profit, which is honestly written down in the charter. It was necessary to appoint a director, and he appointed himself. And he doesn't need a salary. He has enough income, his wife feeds him, his parents help him. Say thank you that I do business, pay taxes, organize jobs, increase GDP. And if you want to prove that I am doing something illegal, well, go ahead and prove it. This is your job. Any questions? Then I'll go. “And I won’t tell you anything more, the bourgeois, and you, the damned ones, will never guess” © .

The other one, the general director, does not want to go to commissions, does not want to communicate with the tax office, does not want to answer questions. And in his business, everything is not so “transparent” as to attract unnecessary attention to himself.

Legislatively, the issue of remuneration for the general director, who is the only participant (shareholder) of the organization, has not been resolved. Until now, it was believed that the general director is a job, and any work must be paid in accordance with the Labor Code and other laws. However, in October 2014, a remarkable letter was issued from the Ministry of Finance, which states that

Article 56 of the Labor Code of the Russian Federation stipulates that an employment contract involves two parties: the employee and the employer.

In accordance with Article 20 of the Labor Code of the Russian Federation, an employee - individual, entered into labor Relations with the employer, and the employer is an individual or entity(organization) that has entered into an employment relationship with the employee. In cases provided for by federal laws, another entity entitled to enter into employment contracts may act as an employer.

If one of the parties to the employment contract is absent, it cannot be concluded.

Consequently, the head of an organization, who is its sole founder and member of the organization, cannot accrue and pay wages to himself.

Based on this, the above-mentioned head of the organization does not have the right to take into account as expenses when determining the object of taxation for the unified agricultural tax as labor costs incurred expenses in the form of paying himself wages. Calculation of insurance premiums in off-budget funds and personal income tax in in this case is also not produced.

After reading this, only one question arises: “where do they get such grass.” At the end of the letter from the Ministry of Finance there is the usual postscript that the letter actually says nothing and cannot be trusted. so.. personal opinion

At the same time, it is reported that this letter from the Department does not contain legal norms, does not specify regulatory requirements and is not a regulatory legal act. Written explanations from the Russian Ministry of Finance on the application of legislation Russian Federation on taxes and fees are of an informational and explanatory nature and do not prevent taxpayers from being guided by the norms of the legislation of the Russian Federation on taxes and fees in an understanding that differs from the interpretation set out in this letter

Oops. “The cash desk does not provide certificates.”

Until there is judicial practice, confirming these “conclusions” of the Ministry of Finance, we believe that the accounting and tax accounting The general manager's salary, taxes and contributions from it must be treated in the same way as accounting for the salary, taxes and contributions of any other employee. accrue, pay, take into account expenses.

We’ll write later what we think about paying the general’s salary.

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 we are talking about her sole owner. Article 56 of the Labor Code of the Russian Federation states that an employment contract is signed by the employer and the employee, that is, the labor relationship is bilateral. In the situation we are considering, this is impossible. 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 an agreement. This point of view is also shared by the Ministry of Health and Social Development of the Russian Federation. Letter No. 22-2-3199 dated August 18, 2009 states that having 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 another founder, an agreement is not needed. There is also a different perspective on the situation.

Can a director not receive a salary if he is a founder?

Nebo LLC You can often find a situation where the owner of a company becomes its general director. The law does not prevent this, and you can establish a commercial company alone. How to document the employment relationship in this case? Should a manager sign a contract with himself? How to avoid mistakes with taxes when calculating the salary of 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. federal Service for Labor and Employment believes that a contract is not required. In letter of Rostrud No. 2262-6-1 dated December 28, 2006 it is stated that the work of the director is regulated by Chapter 43 Labor Code.

CEO salary

InfoBefore deciding whether the director of an LLC may not receive his salary if he is also the sole founder, it is worth understanding his status. The most common situations:

1. If the owners have appointed a manager as manager, from the point of view of legislation, 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 them job responsibilities. Therefore, in such positions the question of payment of remuneration often does not arise. If it does appear, the outcome depends on the existence of an employment contract.

Attention

Option 2: Reduce the rate The company is obliged to pay wages, even if it incurs a loss. You can reduce your monthly payment only by signing an agreement with the director for part-time work. If he works at a quarter rate, he will receive, accordingly, less.

Director and founder in one person, do I have to pay a salary?

That is, the situation when the sole owner of a company assumes the functions of the head of the same company does not run counter to legal norms and the charter of the company. The position of the court is set out in the resolution of the Federal Antimonopoly Service of the North-West District dated April 19, 2004 No. A13-7545/03-20. When drawing up an employment contract with the general director, whose role is the sole owner of the company, you must remember the following:

• The CEO 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 other participants in society are absent, and labor contract one owner signs on behalf of the company, the Company itself acts as the employer;

• Directors are hired on a general basis, in accordance with Art. 68 Labor Code of the Russian Federation. The decision of the sole founder of the LLC to appoint a manager forms the basis of the employment order. This order must be signed by the manager himself.

Can the director of an LLC not receive a salary if he is the founder?

Thus, the Federal Arbitration Court of the Northwestern District confirmed that, in accordance with Art. 11 of the Law “On Limited Liability Companies” dated 02/08/1998 (Law No. 14-FZ), a citizen can establish a company alone. In accordance with the first paragraph of Article 40 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 determined in the charter of the LLC. This person is not necessarily a co-founder of the company.

The agreement between the company and the manager is signed on behalf of the LLC. This must be done by the person leading the general meeting of participants where the election took place. In addition, an employment contract with the general director can be signed by a company participant who is authorized for this by a decision of the general meeting of founders.

Why does the director of an LLC need to be paid a salary?

IN Lately Every citizen of the Russian Federation makes an important decision in life to open own business. This situation is not uncommon in modern world, and everyone treats this with understanding. But not every potential owner of an 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 how can he be paid a salary.” And in general, can the director not receive a salary in this case? Concluding an employment contract with the founding director In order to understand the above issues, it is necessary to understand whether it is necessary 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 as it stands;
• the founder was paid material remuneration for his work;
• the latter must be subject to taxation on insurance premiums.

But this is only one side of the coin. The decision of Rostrud can be easily challenged by referring to the Labor Code. It contains a certain list of persons who are not subject to labor legislation, and the contract in particular. But it does not mention the owner-director, which means he is not included in the list of those exempt from labor laws.
Constant disputes among specialists regarding the employment contract of the only participant in the owner organization, who occupies the main management position, have been going on for more than one year. Why? Because even the approach of the control authorities has changed several times. History of decisions In 2002, the authorities decided that all employees must necessarily enter into a written employment contract. Then the problem with the director in the person of the sole founder was resolved by itself, with the help of the same employment contract. The underlying reason was the correctness of this procedure: what dates to set, who signed 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 enter into an employment contract with the organization in which he works, even if he is its sole founder. The rationale 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, citing the impossibility of concluding labor obligations with oneself, which is very logical.

Judicial constancy Against the backdrop of such instability of decisions executive power the judiciary was the complete opposite. The legal framework is by no means replete with decisions that are relevant to this topic. But their conclusions are all clear - there must be an agreement.
The question that companies ask is: 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 according to the Labor Code of the Russian Federation is an employee of the company, no matter whether he owns it or is employed. The effect of labor legislation on the director is the same as on 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 concluding 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).

It is at this point that there is a disagreement between the Ministry of Finance, which considers “double signature” impossible, and the 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 most profitable way to resolve the issue with the salary of the founding general director of the company? What is the most profitable way to resolve the issue of the salary of the company’s founding general director? But if you pay wages even at the “minimum wage” (in Moscow - 16,500 rubles), then taking into account income tax and contributions to the “salary” funds, the costs will be about 23,500 rubles. For many at the stage of business formation, even this amount is quite significant. In addition, when calculating salaries, there can be no talk of any “zero” reporting - reporting will have to be prepared, not only for the Federal Tax Service, but also for funds (FSS and Pension Fund). Director of a travel agency is the sole founder Director of a travel agency is the sole founder

And if the CEO is the only founder...

It seemed that the unproblematic 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 reconsider the established attitude towards her. And it should be noted that this A New Look 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 the LLC, is quite complex and ambiguous.

In particular, on September 7 of this year, the Russian Ministry of Finance issued a Letter in which it confirms the point of view of the Russian Ministry of Health and Social Development, expressed in Letter dated August 18, 2009 N 22-2-3199. IN this Letter it is said that the provisions of Ch. 43 of the Labor Code of the Russian Federation establishes the specifics of regulating the work of the head of an 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 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 only 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 Russian Ministry of Health and Social Development states that that the sole founder of an LLC cannot receive wages as a general director. And all payments are dividends. Everything would be fine, but dividends are paid if there is profit and its quarterly distribution.

The logic here is simple: if payments to the general director, who is the sole founder of the LLC, are not wages, then they are dividends. Therefore, these payments cannot reduce the taxable profit of the organization. But payments under the Unified Social Tax (and from January 1, 2010 - contributions to extra-budgetary funds) and personal income tax are being reduced.

In turn, such tax savings deprive a person of the right to receive benefits for temporary disability and maternity benefits, since only insured persons have the right to this.

In this case, according to officials, an employment contract is not concluded with the director - the sole founder according to the norms 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 no insurance is provided.

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, the entries in work book not done.

Rostrud will be happy with this option, but the tax authorities are not so happy. The problem is that the director does not receive wages, so the tax authorities will try to reclassify dividends as wages. This will entail additional assessment of unified social tax, 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 the labor relationship between employee and employer in accordance with Art. 16 of the Labor Code of the Russian Federation also arise on the basis of the employee’s actual admission to work, that is, if the sole founder of the LLC has actually begun to perform the duties of the general director, then the employment contract is considered concluded.

A Art. 37 of the Constitution of the Russian Federation provides for the right to remuneration for work not lower than the established one federal law minimum wage. In addition, in Art. 136 of the Labor Code of the Russian Federation states: “Wages are paid at least every half month...”. Therefore, remuneration in the form of dividends cannot be considered as payment for work.

In this case, the organization has the right to calculate and pay wages to its director. These amounts will be taken into account as labor costs for income tax purposes.

Can the director of an LLC not receive a salary?

They will also be charged personal income tax, unified social tax, pension contributions and accident insurance contributions.

An important advantage of this option is that it will relieve the organization from claims from tax authorities under the UST, and the director from claims from personal income tax.

Let's not forget that the right to receive dividends remains with the general director - the sole founder, if there are any.

A difficult point in such a situation will be the position of the Social Insurance Fund of the Russian Federation. The Fund practices refusal to pay benefits for temporary disability to organizations that have an employment contract with the director - the only participant in the company, to pay benefits. The logic is this: if the only founder is also its manager, no labor relations arise between him and the company. Labor relations are relationships between two entities: the employee and the employer. In this case, there is one subject - the employer. And if there is no employment contract, there is no insurance or social benefits.

The consolation here can be the fact that the courts often take the side of the taxpayer and oblige the Social Insurance Fund of the Russian Federation to pay benefits. As an example, we can cite the Determination of the Supreme Arbitration Court of the Russian Federation dated June 5, 2009 N VAS-6362/09. The applicant in the case was the Primorsky 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, based on the fact that the right to receive benefits arises for insured persons for all types of compulsory social insurance from the moment of concluding an employment contract 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, is unfounded and based on an incorrect interpretation of the law by the applicant himself.”

There are also earlier positive court decisions on this issue. For example, Resolutions of the Federal Antimonopoly Service of the West Siberian District dated November 10, 2008 N F04-4991/2008(15688-A45-25), FAS Volga-Vyatka District dated October 30, 2008 N A11-1435/2008-K2-21/81 and FAS Volga District dated September 2, 2008 N A65-266/08.

Thus, despite the incomprehensible desire of our ministries to reconsider the current practice of employment and payment of wages to the general director, who is the only founder, it is unlikely that organizations will encounter serious problems. The position of officials is very precarious, which is confirmed by judicial practice.

I. Tolmachev

Journal expert

According to the Labor Code of the Russian Federation, regulations and the constituent acts of the LLC, the individual who manages the organization also performs the functions of the 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 wages to the organization’s employees. For violation of this obligation, the organization may be fined in the amount of 30 to 50 thousand rubles, or the organization’s activities may be suspended for up to three calendar months.
It is easy to assume that to avoid such negative consequences It will be easier for the organization to accrue and pay on time to the founding director wages.
If the general director of the LLC is his sole participant, then the situation takes on very confusing features.
Rostrud, in its letter No. 2262-6-1, states 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 on the part of the employee. In this case, the sole participant of the company should be entrusted with 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 an organization should be carried out without concluding any agreement.
It would be logical to assume that the director’s activities cannot be regarded as labor and, therefore, are not subject to payment. This is wrong.
From the activities of arbitration courts it is clear that the activities of directors of the sole employees and founders of LLCs are labor activities, even without concluding employment contracts.
We conclude that even if the founder of the organization is its only participant and he is also the director, then an employment relationship arises between him and the organization, which entails the payment of wages.

You can often find a situation where the owner of a company becomes its CEO. The law does not prevent this, and you can establish a commercial company alone. How to document the employment relationship in this case?

Should a manager sign a contract with himself? How to avoid mistakes with taxes when calculating the salary of 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 register in such a situation. The Federal Service for Labor and Employment believes that an agreement is not required. In letter of Rostrud No. 2262-6-1 dated 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 we are talking about its sole owner.

Article 56 of the Labor Code of the Russian Federation states that an employment contract is signed by the employer and the employee, that is, the labor relationship is bilateral. In the situation we are considering, this is impossible. 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 an agreement.

This point of view is also shared by the Ministry of Health and Social Development of the Russian Federation. Letter No. 22-2-3199 dated August 18, 2009 states that having 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 another founder, an agreement is not needed.

There is also a different perspective on the situation. Thus, the Federal Arbitration Court of the Northwestern District confirmed that, in accordance with Art. 11 of the Law “On Limited Liability Companies” dated 02/08/1998 (Law No. 14-FZ), a citizen can establish a company alone. In accordance with the first paragraph of Article 40 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 determined in the charter of the LLC.

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

That is, the situation when the sole owner of a company assumes the functions of the head of the same company does not run counter to legal norms and the charter of the company. The position of the court is set out in the resolution of the Federal Antimonopoly Service of the North-West District dated April 19, 2004 No. A13-7545/03-20.

When drawing up an employment contract with the general director, whose role is the sole owner of the company, you must remember the following:

The General Director must be elected. However, in our case, when there are no other participants in the company, and the employment contract is signed by one owner on behalf of the company, the Company itself acts as the employer;

Directors are hired on a general basis, in accordance with Art. 68 Labor Code of the Russian Federation. The decision of the sole founder of the LLC to appoint a manager forms the basis of the employment order. This order must be signed by the manager himself.

Payroll for the founder-director

Wages are defined in labor legislation as remuneration for work that took place under the relevant contract. If the general director is the sole owner of the company and there is no formal employment contract, the amount of his salary can be indicated in the staffing table.

If an employment contract is concluded, it must contain a condition regarding the payment of labor to the manager-owner (in accordance with Article 57 of the Labor Code of the Russian Federation). It is important to take into account that wages for one full working month (entire time worked and fulfilled labor standards) 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 general director-owner has the right to a portion of the profits. If there is no employment contract, he can work without salary or bonuses, receiving only dividends. There are several factors to consider when calculating these payments:

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

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

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

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

How to keep track of the salary expenses 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?

Answer to this question depends on the presence/absence of an employment contract. If there is a contract, then it must indicate the salary amount. Accordingly, it can be posted as labor costs.

In the absence of an agreement, you can act at your own discretion. However, here it is necessary to take into account that if an employee de facto works, labor relations exist, even if they are not “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.