The founder is the director whether an employment contract is needed. Is the sole founder and CEO the same person? Recruitment

Often sole proprietors small firms become their leaders. In this regard, many questions arise. Is it legal to conclude an employment contract with the director of the company, who is its sole founder? Is it possible to talk about the emergence of labor relations in this situation? Can payments in favor of the director - the sole founder be taken into account as expenses for tax purposes? Do I need to charge insurance premiums and submit information to the FIU?

The director must always be

Let's start with any entity according to Art. 53 of the Civil Code of the Russian Federation acquires civil rights and assumes civic responsibilities through its bodies. Small travel agencies are most often created in the form of an LLC, so it is appropriate to refer to Law No. 14-FZ, in Art. 32 of which it is stated that supreme body society is the general meeting of its members. The competence of the general meeting includes the formation of the executive bodies of the company (Article 33 of Law No. 14-FZ). The executive body is necessary for society to manage its current activities (clause 4, article 32 of Law No. 14-FZ). From the content of Art. 40 of Law No. 14-FZ, it follows that the sole executive body of a company (, president, etc.) can be elected both from among its participants and from a circle of third parties. In any case, an agreement is signed between the company and the person exercising the functions of the sole executive body of the company (Law No. 14-FZ does not contain an indication of what is being signed, although this is quite logical).

At the same time, in a company consisting of one participant, decisions on issues related to the competence of the general meeting of participants in the company are taken by its sole participant individually and are drawn up in writing (Article 39 of Law No. 14-FZ).

Here is an example of the decision of the sole founder on taking office as a director.

About taking office

On the basis of the decision of the sole founder of Turservis LLC dated July 10, 2017 No. 1, Somov Dmitry Mikhailovich (passport 2213 No. 020406, issued on February 10, 2014 by the Department of Internal Affairs for the Zavolzhsky District of Tver, registered at the address: Tver, Kalinina St., 15, apt. 21), I take up the duties of the Director from July 10, 2017.

Due to the lack of a position of an accountant (chief accountant) in the state, the obligation to maintain accounting and accountability temporarily impose on myself. All financial documents of the Company are signed by the sole signature of the sole executive body.

Director

Somov

/D. M. Somov/

Labor relations and contracts

Features of labor regulation of the head of the organization are spelled out in Ch. 43 of the Labor Code of the Russian Federation. According to the definition contained in Art. 273 of the Labor Code of the Russian Federation, the head of an organization is an individual who, in accordance with the Labor Code of the Russian Federation, other laws and other regulatory legal acts, founding documents organization and its local regulations manages the organization, including performing the functions of its sole executive body. The legal relations of the director with the organization are formalized by an employment contract, and Art. 275 of the Labor Code of the Russian Federation establishes the features of his conclusion.

It is important that the provisions of Ch. 43 of the Labor Code of the Russian Federation do not apply to managers who are the sole participants (founders) of organizations, members of organizations, owners of their property (part 2 of article 273 of the Labor Code of the Russian Federation). Therefore, the question arises: is there a place for labor relations in the case considered in the article and should they be formalized by an employment contract? To answer, you need to remember the definition of labor relations. It is given in Art. 15 of the Labor Code of the Russian Federation:

Labor relations - relations based on an agreement between the employee and the employer on the personal performance by the employee of the labor function for payment (work according to the position in accordance with staffing, professions, specialties indicating qualifications; specific type of work entrusted to the employee) in the interests, under the management and control of the employer, the subordination of the employee to the rules of the internal labor regulations, while the employer ensures the working conditions provided for by labor legislation and other regulatory legal acts containing norms labor law, collective agreement, agreements, local regulations, employment contract.

In other words, the performance by an individual of a labor function corresponding to a certain position, the first - for a fee, the second - on the basis of an agreement, forms labor Relations between him and the organization.

Another important conclusion follows from the above quotation: the emergence of labor relations is always accompanied by the conclusion of an employment contract (an agreement between an employee and an employer).

Options for interpreting the law

Next, we will give two polar points of view with their corresponding arguments as to whether labor relations arise (whether labor contracts are concluded) between the organization and its director, who is at the same time the sole founder of the organization.

Labor relations (employment contracts)

Option 1. Arise (conclude)

Option 2. Do not arise (do not conclude)

There are court decisions (decisions of the FAS ZSO dated July 29, 2009 No. F04-4242 / 2009 (10610-A27-25) *, FAS SZO dated April 9, 2009 in case No. A21-6551 / 2008 **), in which the arbitrators apply Special attention: by virtue of Art. 16 of the Labor Code of the Russian Federation, relations that arose as a result of appointment to a position are characterized as "labor relations on the basis of an employment contract."

The appeal ruling of the Chelyabinsk Regional Court dated November 27, 2014 No. 11-12571 / 2014: the conclusion of an employment contract with oneself in this situation does not occur, since the contract is concluded between a legal entity (LLC) and an individual, the relationship between the organization and its leader, who is the sole participant of this organization, are drawn up by an employment contract, the general provisions of the Labor Code of the Russian Federation apply to this manager.

Determination of the Perm Regional Court dated October 26, 2011 No. 33-10786: taking into account the norms of Art. 11 and 273 of the Labor Code of the Russian Federation, a person appointed to the position of director of a company is its employee, and relations between the company and the director as an employee are regulated by labor law. At the same time, labor legislation does not contain provisions prohibiting the use of general provisions Labor Code of the Russian Federation to labor relations, when the status of an employee and an employer coincides in one person

Letters from Rostrud No. 177-6-1 dated 06.03.2013 and the Ministry of Health and Social Development of the Russian Federation dated 08.18.2009 No. 22-2-3199 indicate that the sole founder must assume the functions of managing his decision, which gives him the right to manage the organization without concluding any or a contract, including an employment contract. According to Art. 56 Labor Code of the Russian Federation labor contract is between the employee and the employer. In this situation, there is no employer in relation to the director. That is, an employment contract with the director as an employee is not concluded. The signing of an employment contract by the same person on behalf of the employee and on behalf of the employer, according to Rostrud, is not allowed. Thus, labor legislation does not apply to the relationship of the sole participant in the company with the company he founded.

It is curious that the head - the only founder does not fall under the list of persons who are not subject to labor legislation contained in Art. 11 of the Labor Code of the Russian Federation. Therefore, the above interpretation of the norms of the Labor Code of the Russian Federation should be considered expansive.

It must be admitted that Rostrud is consistent in its judgments. Thus, in Letter No. 2065-6-1 dated 09/04/2015, he considered the question of whether it is possible to hold the organization liable under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation for concluding an employment contract with the head - the sole founder. This article establishes liability for violation of obligations stipulated by labor legislation and arising from labor relations that develop between the employee and the employer. Considering that, according to Rostrud, there is no labor relationship in the situation under consideration, it must be assumed that offenses under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation is also not

* Upheld by the Determination of the Supreme Arbitration Court of the Russian Federation dated October 28, 2009 No. VAC-13626/09.

** Determination of the Supreme Arbitration Court of the Russian Federation dated 03.06.2009 No. 6597/09 refused to transfer this case to the Presidium of the Supreme Arbitration Court for review by way of supervision.

There is also a third approach (the most beneficial for replenishing the budget) - there are labor relations, but there are no labor contracts. It can be traced in the letters of the Ministry of Finance, which, although not entitled to provide clarifications on the application labor law, nevertheless spoke on the issue of interest to us. So, in Letter No. 03-11-11/14234 dated March 15, 2016, with reference to the Determination of the Supreme Arbitration Court of the Russian Federation dated June 5, 2009 No. VAC-6362/09, it says: “ If the head of the organization is its sole founder, that is, one of the parties to the employment contract is absent, then the employment contract cannot be concluded. ... labor relations with the director as with an employee are not formalized by an employment contract, but by the decision of a single participant».

Expense recognition of payments to the founding director

, that is, she believes that an employment relationship with the director - the sole founder arises, for her the issue of concluding an employment contract is not idle, since in the absence of such, she may face additional difficulties in terms of recognizing the costs of the salary of the director - the sole founder.

As a general rule, the costs associated with the payment of wages to employees are taken into account when forming the taxable base for income tax (clause 1, article 255 of the Tax Code of the Russian Federation) and when applying the simplified taxation system with the object “income minus expenses” (clause 6, clause 1, article 346.16 of the Tax Code of the Russian Federation).

However, remuneration accrued to both employees and managers, but not provided for by an employment contract, does not reduce taxable income (clause 21, article 270 of the Tax Code of the Russian Federation). Therefore, in order to take into account payments in favor of the director - the sole founder, they must be provided for in the employment contract (see Letter of the Ministry of Finance of the Russian Federation of October 13, 2015 No. 03-03-06 / 1 / 58416).

Recall that, due to the position of the financiers, an employment contract with the director - the sole founder is not concluded due to the absence of the other side of such an agreement. This means that the head of the organization, being its sole founder, cannot accrue and pay wages to himself. Consequently, the organization is not entitled to take into account for tax purposes the expenses incurred by the director in the form of paying wages to himself (see Letter of the Ministry of Finance of the Russian Federation of February 19, 2015 No. 03-11-06 / 2/7790). The department extends this conclusion both to income tax payers and to “simplifiers”.

However, as we have already found out, the courts allow the existence of labor relations between the company and the director - the sole founder, and the execution of an employment contract with him does not form administrative offense. Moreover, if an employee is admitted to work, labor relations arise regardless of the execution of a written employment contract, the contract itself is still considered concluded. Its paper version must be drawn up no later than three working days from the date the employee is actually admitted to work (part 2 of article 67 of the Labor Code of the Russian Federation).

When real labor relations take place, and the labor contract is considered concluded even before the written form is drawn up, the grounds for applying clause 21 of Art. 270 of the Tax Code of the Russian Federation no.

Let us make a reservation right away that such an approach may cause claims from regulatory authorities and its legality will have to be defended in court.

To document the fact that the costs of paying salaries to the director, the organization may submit a decision on the appointment of the sole founder to the position of the head of the organization, as well as pay slips, payrolls, cash receipts, which indicate the payment of salaries.

The fact that the presence of these documents will strengthen one's position in court is confirmed by arbitration practice. Thus, the judges recognized the existence of an employment relationship, and therefore, the legitimacy of the expenses incurred if there are:

staffing table, pay slips (Resolution of the FAS SZO dated 11.10.2007 No. A42-5270 / 2006);

salary certificates, cash receipts, payrolls (Resolution of the FAS VSO dated October 10, 2007 No. A33-15270 / 06-F02-6504 / 07).

, that is, he believes that there is no employment relationship with the director - the sole founder, payments in his favor are clearly subject to clause 21 of Art. 270 of the Tax Code of the Russian Federation and cannot be accepted for tax purposes.

Calculation of insurance premiums for payments to the founding director

If the organization follows option 1 , payments in favor of the head of the organization, which is the only participant (founder), are subject to insurance premiums.

The Ministry of Labor has always insisted on this (Letter of 05.05.2014 No. 17-3 / OOG-330): managers - the only founders are recognized as insured persons under compulsory pension insurance, compulsory social insurance in case of temporary disability and in connection with motherhood and compulsory health insurance. Consequently, for payments made in favor of the general director of the organization, which is its sole founder, insurance premiums are charged in accordance with the generally established procedure.

Currently, the object of taxation of insurance premiums is defined in Art. 420 of the Tax Code of the Russian Federation and for employers, it includes payments and other remuneration in favor of individuals subject to compulsory social insurance in accordance with federal laws on specific types of compulsory social insurance, made, in particular, within the framework of labor relations.

Attention: for the calculation of insurance premiums, the existence of an employment contract does not matter, the fact of having an employment relationship is important.

With regard to judicial practice, the arbitrators have repeatedly recognized the legitimacy of paying the director - the sole founder of social benefits (decisions of the FAS ZSO dated 03/15/2011 in case No. A45-16926 / 2010, dated 11/09/2010 in case No. 2010 in case No. А45-3921/2010, FAS DVO of 10/19/2010 No. Ф03-6886/2010 in case No. А73-2821/2010).

If the organization follows option 2 and does not consider the relationship with the founding director to be labor, then insurance premiums for payments to the director should not be charged, but the likelihood of claims from the tax authorities is very high.

There are also court decisions, in particular the Decree of the FAS ZSO dated March 15, 2011 in case No. A45-16926 / 2010, where, after assessing the specific circumstances of the case, the judges refuse to allow the founding director due to the lack of economic need to appoint him to the position (there is no activity , the duties of the director are not actually fulfilled).

Submission to the FIU of information in the form of SZV-M

The rules of clause 2.2 of Art. 11 of Federal Law No. 27-FZ establishes that the policyholder monthly submits information about each insured person working for him in the form of SZV-M, approved by Resolution of the Board of the Pension Fund of Russia dated February 1, 2016 No. 83p (hereinafter - Resolution No. 83p).

If the organization follows option 1 , recognizes the relationship with the founding director as labor and has an employment contract with him, then information about the director is unequivocally subject to reflection in the reporting in the SZV-M form (clauses 2.2, 4, article 11 of Federal Law No. 27-FZ, clause 1 of Resolution No. 83p, annex to Decree No. 83p, item 1, article 7 of Federal Law No. 167-FZ).

According to the clarifications given in the letters of the Ministry of Labor of the Russian Federation of July 7, 2016 No. 21-3 / 10 / V-4587, the Pension Fund of the Russian Federation of July 13, 2016 No. LCh-08-26 / 9856, information in the SZV-M form is submitted in relation to insured persons working under an employment or civil law contract, including in relation to the head of the organization, who is its sole founder (participant). In the event that an employment contract is concluded with the said persons, these reports are submitted for all working insured persons, regardless of the actual implementation of payments and other remuneration, as well as the payment of insurance premiums.

If the organization follows option 2 and denies the existence of an employment relationship with the founding director, it is logical not to include information about him in the SZV-M form. From a literal reading of the norm of paragraph 1 of Art. 7 of Federal Law No. 167-FZ, it follows that only the head of the organization, the only founder working in it under an employment contract, is recognized as an insured person. At the same time, the head of the organization is the only founder with whom a contract (labor, civil law) has not been concluded, and is not mentioned as an insured person in the named article. The rules of Art. 8, paragraph 2.2, 4 art. 11 of Federal Law No. 27-FZ provides that information in the SZV-M form is submitted only in relation to insured persons working for the insured.

But we must remember that the Ministry of Labor and the PFR have a different point of view on this matter. As mentioned above, the Ministry of Labor in Letter No. 17-3 / OOG-330 dated 05.05.2014 named the heads of the organization, who are the only participants (founders), insured without an additional clause on the conclusion of an employment or civil law contract. As for the PFR, in Letter No. 08-22/6356 dated May 6, 2016, he also classified the head, the sole founder, as one of the insured persons for whom these reports are submitted.

We will express our own position regarding labor relations and labor contracts with the director - the sole founder. It is quite obvious that there is no universal answer to the question of whether or not labor relations arise with the director who is the owner of the organization. In our opinion, it all depends on the specific circumstances.

The director's job is not a fiction

When the sole founder of the company, having appointed himself to the position of director, actually performs the relevant labor function- manages the current activities of the organization, observes the labor schedule, concludes deals, makes business trips, conducts negotiations, etc., then the existence of labor relations between him and the society cannot be denied. As for the execution of an employment contract, of course, signing it by one person both on the side of the employer and on the side of the employee looks incorrect. However, this moment rather clearly illustrates the whole originality of the situation under consideration, rather than indicates the impossibility of formalizing the contract in principle. In our opinion, an employment contract should be drawn up and, moreover, a very responsible approach to the description of the duties of the manager (as close as possible to the tasks actually performed), the amount of remuneration of the manager and various additional payments. A well-drafted contract will make it easier to prove the validity tax expenses in the form of payments to the director. Of course, in this case, the organization will have to accrue insurance premiums and submit information about the director in the SZV-M form.

The position of director is formal

If the sole founder of the company, having appointed himself to the position of director, actually does not perform his functions (this is especially noticeable when the organization does not conduct any activity at all (there is no movement on current accounts, no contracts signed, no jobs, etc.)), then even when creating the necessary workflow (drawing up an employment contract and other personnel documentation) the existence of an employment relationship between him and society should be questioned. Most likely, when checking by the tax authority, the amount of wages accrued to such a director will not be accepted for tax purposes. In turn, the inspectors will most likely require the payment of insurance premiums and reporting to the FIU. The wording of laws encourages these actions. For such a situation, our recommendation is as follows. The founder needs to limit himself to the decision to assume the duties of the director of the company. An employment contract does not need to be drawn up, as well as to recognize the existence of an employment relationship between the company and the director. Then non-calculation of wages in favor of the director will be quite justified and will not create disagreements with the tax authority and the FIU.

Today there is no complete clarity on the issue of registration of labor relations with the director - the sole founder. The courts recognize the relationship that arose as a result of the appointment to a position by the decision of the sole owner as labor relations. This solution allows you to manage the organization without concluding an employment contract. At the same time, the presence of labor relations in the absence of an employment contract makes it difficult for the organization to recognize payments to the director when calculating taxes. The accrual of insurance premiums and reporting to the FIU also depends on the recognition of relations with the director as labor, and the director himself as an insured person.

sole founder and the director rolled into one - 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, off-budget 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:

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 does not have legal effect. But the provisions of this article do not apply to labor relations, this is civil law.

In Art.273 Labor Code from chapter 43 (labor relations with the head) it is said 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?

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.
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 drawn up 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"the duties of the general director are assigned 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. The job application is made by general rules established by the Rules for the maintenance and storage of work books (approved by Decree of the Government of the Russian Federation of 16.04.2003 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. On the basis of the concluded employment contract and order, an entry is made in 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 the opposite 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.

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

Is the Founding Director included in the FCA?

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 he is paid wage, then clearly such an individual and payments to him must be 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.

The situation when in a company the founder and director in one person arises quite often. The legislation does not prohibit such a combination, but in this case, how does the registration of labor relations with the founding director take place, is an employment contract concluded with him? It turns out that he hires himself to work and pays his own wages, let's consider how to do it right in this case.

On the one hand, the question of whether to conclude an employment contract between the CEO and LLC or not, if he is the sole founder, does not have a clear answer. According to Rostrud specialists, an explanation was given on this matter. It says that labor relations regarding the head are regulated by the Labor Code of the Russian Federation, Art. 43, however, in this case do not apply to the stipulated situation, in accordance with the Labor Code of the Russian Federation, Art. 273.

An employment contract is concluded between an employee and an employer (Article 56 of the Labor Code of the Russian Federation), and in this situation the director and founder are one person, i.e. In fact, there is no employer for him. In addition, the signing of an employment contract by the same person, both on the part of the employee and the employer, is not permissible. According to these criteria, an agreement with the director in this case should not be concluded.

The Ministry of Health and Social Development of Russia is of the same opinion: according to the norms specified in Article 273 of the Labor Code of the Russian Federation, it is impossible to sign an employment contract both on one’s own behalf and on behalf of the organization, although the owner is present only in the singular.

On the other hand, there are court decisions on this matter. In particular, which states that, according to Federal No. 14-FZ of May 19, 2004, it is provided that the decision to establish an LLC can be made by one person. According to article 40, paragraph 1 of this law, CEO is elected on the basis of a decision of the general meeting of participants for a period specified by the charter of the company and may not be selected from among the participants.

In turn, the contract between the company and its executive body on behalf of the LLC is signed by the acting chairman at the general meeting of the founders upon the election of the director or by the person who was authorized to such actions according to the decision of the founders. Thus, the imposition of the obligation of the director of the company on the part of the sole founder does not contradict either the provisions of the charter or legal norms.

Therefore, in the case of concluding an employment contract, it is necessary to remember the following.

The issue of electing the general director is entrusted to the board of directors, however, in this case, the signing of an employment contract with the director is carried out on behalf of the company by the only participant, due to the fact that there are no other participants. The employer will be a company with limited liability.

If an employment contract has been concluded, then the conditions for receiving remuneration for work must be specified in the contract (Labor Code of the Russian Federation, Article 57). Please note that if an employee has worked for a full month and fulfilled all the norms of labor and working hours, the salary must not be lower than the established minimum wage.

In addition to the fixed salary, the director may receive dividends due to him as the founder.

If an employment contract has not been concluded, then only dividends can be paid, however, certain rules must be observed:

Dividends are paid no more than once a quarter.
Payment is made by net profit, which remained with the organization after the payment of taxes.
Paid at the discretion of the owner.

One common mistake is paying monthly dividends. If audited, this payment will be reclassified as a salary payment, which will entail some tax consequences.

The procedure for accounting for expenses when paying salaries to the founding director

Is it possible to include the salary of the founding director in the company's payroll costs, as is the case in general cases (TC RF, article 255, clause 1)?

In fact, labor relations with the director have been established, since he is admitted to work, regardless of whether an employment contract is concluded with him on paper or not (Labor Code of the Russian Federation, article 16 part 2, article 19, article 67). Based on this, it can be assumed that the application of these paragraphs of the Tax Code will be possible even if an employment contract has not been concluded in writing with the director and the sole founder in one person.

If the contract with the director was concluded, then in accordance with the Labor Code, the working conditions of the employee must be prescribed in it, in which case they are taken into account in the cost of wages.

Useful information

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

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

Sole founder and director one person

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

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

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

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

Well, since a person does not receive a salary, then pay insurance premiums and income tax individual just nothing.

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

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

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

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

Founding Director Reports

Report to the FIU- it is necessary to hand over the zero RVS-1 within 45 days after the last quarter;
FIU report- SZV-M (monthly report on employees) - no need to submit. Because of this, there was a lot of controversy, but the letter pension fund dated July 27, 2016 N LCH-08-19 / 10581 clarified this situation and specifically indicated that if the sole founder is the director of the organization and does not have employees, this report should not be submitted. Hooray!!!;
Report to the FSS- it is necessary to submit a zero report quarterly by the 20th day following the quarter;
Income tax report– a zero report is submitted quarterly by the 20th day of the month following the reporting one;
– a zero report is submitted (1 time per year) until January 20 of the year following the reporting one.

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

When an organization has multiple founders

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

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

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

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In the field of small business, the situation is common when the sole founder of the company is its head. Is it necessary to conclude an employment contract with such an employee, accrue contributions from accidents on his salary? Let's try to figure it out and consider the answers of several experts.

Expert Answer #1

The CEO of the organization is also its founder. Is there an employment contract with the manager? Who signs it?

According to paragraph 4 of Art. 40 of the Federal Law of 08.02.98 N 14-FZ "On Limited Liability Companies" (hereinafter referred to as the LLC Law), the procedure for the activities of the general director of the company and the adoption of decisions by him is established by the charter of the company, internal documents of the company, as well as the AGREEMENT concluded between the company and the General Director.

According to the third part of Art. eleven Labor Code of the Russian Federation ( Labor Code of the Russian Federation) all employers (individuals and legal entities, regardless of their organizational and legal forms and forms of ownership) in labor relations and other relations directly related to them with employees are obliged to be guided by the provisions of labor legislation and other acts containing labor law norms.

In accordance with Art. 16

Labor Code of the Russian Federation ( Labor Code of the Russian Federation) labor relations between the employee and the employer arise on the basis of an employment contract concluded in accordance with Labor Code of the Russian Federation ( Labor Code of the Russian Federation) , moreover, labor relations that arise as a result of the election or appointment to the position of the director of the company are also characterized as labor relations on the basis of an employment contract. From articles 56, 59, 275 Labor Code of the Russian Federation ( Labor Code of the Russian Federation) it also follows that an EMPLOYMENT CONTRACT must be concluded with the head of the organization.

Thus, the general director is at the same time the sole executive body of a legal entity, including a limited liability company (LLC) (Articles 53, 91 Civil Code of the Russian Federation ( Civil Code of the Russian Federation) ), and his employee (part six of article 11 Labor Code of the Russian Federation ( Labor Code of the Russian Federation) ). The activity of the general director as the sole executive body of the company is regulated by the norms of civil legislation, and as an employee - by the norms of labor legislation.

Therefore, an employment contract must be signed with the general director.

At the same time, if he is the sole founder of an LLC, some features appear.

Paragraph 1 of Art. 40 The LLC Law establishes that the sole executive body of a company is elected general meeting participants of the company, and the AGREEMENT WITH IT IS SIGNED BY THE PERSON presiding at the general meeting of participants or AUTHORIZED BY THE GENERAL MEETING OF SHAREHOLDERS.

FEATURES OF THE LEGAL REGULATION OF THE LABOR OF THE MANAGER are defined in Chapter 43 of the Labor Code of the Russian Federation, however, in Art. 273 Labor Code of the Russian Federation ( Labor Code of the Russian Federation) it is stated that the provisions of this chapter do not apply to cases where the head of the organization is the only participant in the legal entity. The last case deserves a special mention.

IF THE GENERAL DIRECTOR IS THE SOLE FOUNDER OF THE LLC, the following must be considered:

In accordance with Art. 39 of the Law on LLC, if the company consists of one member, the functions of the general meeting of members of the company are performed by the sole member of the company individually and are drawn up in writing.

The civil legislation does not restrict the ability of an individual - the sole founder of a legal entity - to appoint himself the sole executive body, and the labor legislation does not contain reservations regarding the effect of its norms on such managers or the absence of the need to formalize labor relations with them.

Thus, in this case an employment contract must be drawn up.

The fact that the signatures of both parties to the employment contract are put by the same person, acting both as an employee (general director) and as a management body of the employer, does not contradict the law. The provision of paragraph 3 of article 182 Civil Code of the Russian Federation ( Civil Code of the Russian Federation) , according to which the representative cannot make transactions on behalf of the represented in relation to himself personally, does not apply to labor relations (Article 2 Civil Code of the Russian Federation ( Civil Code of the Russian Federation) ).

We consider it necessary to note that there is another point of view, which we consider erroneous, that in the case when the head is the only member of the organization, an employment contract should not be concluded. This position was once expressed in a letter dated December 28, 2006 N 2262-6-1 federal Service on labor and employment (Rostrud). Rostrud justified its position by saying that it is impossible to conclude an employment contract, since in such a situation "there is no employer in relation to the general director", meaning that in this case the employee and the employer are the same person. And the Social Insurance Fund of the Russian Federation, in a letter dated June 27, 2005 N 02-18 / 06-5674, explaining the issue of compulsory social insurance against industrial accidents, generally concluded that cases where the head of an organization is the sole owner of its property, are not regulated by labor law.

Once again, we want to note that we consider this position to be erroneous and not based on the norms of the law (the letters themselves, by virtue of their status, are not normative acts), since it does not take into account any of the above provisions of Art. 11, 16 Labor Code of the Russian Federation ( Labor Code of the Russian Federation) , nor the provisions of Art. twenty Labor Code of the Russian Federation ( Labor Code of the Russian Federation) , according to which the employer is the organization itself (legal entity), and not the founder or, moreover, the director. And it is a legal entity, regardless of the number and status of participants, through its bodies independently acquires rights and bears obligations as an employer.

This position has been supported by judicial practice- see FAS resolution Northwestern District dated May 19, 2004 N A13-7545 / 03-20, Resolution of the FAS Ural District of September 17, 2007 N F09-2855 / 07-S1, Decree of the Federal Antimonopoly Service of the West Siberian District of December 5, 2007 N F04-8301 / 2007 (40653-A45-25).

As for the form of the contract for this case, we remind you that the features legal regulation labor manager, defined in Chapter 43 Labor Code of the Russian Federation ( Labor Code of the Russian Federation) , according to Art. 273 Labor Code of the Russian Federation ( Labor Code of the Russian Federation) do not apply to cases where the head of the organization is the sole participant of the legal entity.

Thus, in this case, it can only be said that such an agreement must comply with general requirements labor legislation. The content of the employment contract is regulated by Art. 57 Labor Code of the Russian Federation ( Labor Code of the Russian Federation) .

CONCLUSION:

The conclusion of an employment contract with the general director, who is also the founder, is mandatory, regardless of whether he is the sole founder of the company or not.

If the general director is not the only founder of the company, then he is elected by the general meeting of the participants of the company, and the contract with him is signed by the person who chaired the general meeting of the participants or authorized by the general meeting of the participants.

If the general director is at the same time the sole founder of the company, then he accepts sole decision about appointing himself as the General Director, and signs an employment contract on both sides, on the one hand, as an employee, on the other hand, as a representative of the employer (legal entity).

Prepared answer:

Legal Consulting Service Expert GARANT

Goryunova Olga

Checked answer:

Reviewer of the Legal Consulting Service GARANT

Serkov Arkady

Moscow

Expert Answer #2

Features of labor regulation of the head of the organization are specified in Chapter 43 of the Labor Code. However, the provisions of this chapter do not apply to cases where the director is the sole founder (Article 273 of the Labor Code of the Russian Federation). This rule is understood in different ways.

Recruitment

Some experts believe that it is not necessary to conclude an employment contract with the director, who is the only founder. It is difficult to agree with this. After all, the director makes decisions, issues orders, manages the activities of the company, etc. Consequently, labor relations arise between him and the organization. They are drawn up by an employment contract (Articles 15, 16 of the Labor Code of the Russian Federation).

In general cases, an agreement with the head is concluded for a certain period. This is stated in article 275 of chapter 43 of the Labor Code. But since this chapter does not apply in the situation "the owner himself - the director himself", the contract can be concluded for an indefinite period.

The employment contract is signed by two parties - the employer and the employee.. What to do in our situation? It turns out that the employer and the employee are one person. There are two options here.

Firstly, the director can conclude an employment contract with himself. True, in paragraph 3 of Article 182 of the Civil Code there is a clause that a company representative cannot conclude transactions in relation to himself personally. But this provision is applied specifically in civil law, for example, in relation to business contracts. The labor legislation indicates only one case of cancellation of the contract with an employee - if he did not start work within a week (Article 61 of the Labor Code of the Russian Federation). This situation has nothing to do with the issue of signing an employment contract by the same person.

The second option is that one of the employees of the company can sign the contract on behalf of the company. For example, it could be a member of the Human Resources department.

Employment is formalized by order (Article 68 of the Labor Code of the Russian Federation). The form of this document (form No. T-1) was approved by the Decree of the State Statistics Committee of Russia dated January 5, 2004 No. 1. The document is signed by the head of the organization, and the employee puts his “autograph”, notifying that he is familiar with the order. Since this is the same person, the director can sign the document himself. Or another employee will sign the order on behalf of the company.

Like any other employee, a personal card is created for the manager. For this, a form is provided in the form No. T-2.

If the work for the director in the company he created is the main one, then you need to make an entry in his work book (Article 66 of the Labor Code of the Russian Federation). The rules for filling it out are indicated in the instruction, which was approved by the Decree of the Ministry of Labor of Russia dated October 10, 2003 No. 69.

So, in column 3 of the section "Information about the work" in the form of a heading, you need to write down the full name of the organization. If there is an abbreviated name, indicate it. Under this heading in column 1 put the serial number of the entry, and in column 2 indicate the date of employment. Further, in column 3 they write down: “Accepted to the position of director” In column 4 they enter the date and number of the order for employment, according to which the head took up his duties (for example: order dated September 5, 2005 No. 1).

Everything according to the code

The director, like any employee, is subject to the guarantees provided for in the labor legislation. For example, days off, sick pay.

It happens that the director is not only the only founder, but also the only employee. But even this fact does not limit his right to leave. Thus, Article 124 of the Labor Code prohibits work without rest for two years in a row.

Like any employee, the director is entitled to a salary. According to Article 136 of the Labor Code, it must be issued every half a month. The minimum monthly salary should not be less than one minimum wage (Article 133 of the Labor Code of the Russian Federation). From September 1, 2005, this amount is 800 rubles (Federal Law of December 29, 2004 No. 198-FZ).

Can a director who is the sole founder work without payroll? The Labor Code does not establish exceptions for any category of employees. Therefore, the working director will have to pay salaries.

It is possible to circumvent such a legal requirement if the director goes on vacation “at his own expense”. But this option is not suitable for all companies. For example, those organizations that have “frozen” their business and only the head himself is on the staff can use it. But when the enterprise leads economic activity, the absence of the director looks very strange. After all, he has to sign contracts, payment documents, reporting, etc. This will be an indicator that the director actually fulfills his duties, and, therefore, he is entitled to wages with all the ensuing tax consequences.

Payments to the budget and funds

The director's salary is included in expenses when calculating income tax (Article 255 of the Tax Code of the Russian Federation). The justification for such expenses is the employment contract. This once again confirms that such a document should be drawn up.

UST, pension contributions are accrued on the director's salary (clause 1, article 236 of the Tax Code of the Russian Federation, clause 2, article 10 of the Federal Law of December 15, 2001 No. 167-FZ). In addition, you need to withhold personal income tax. When calculating tax, the accountant should make sure that it is possible to provide the director with standard tax deductions(Article 218 of the Tax Code of the Russian Federation). Their amount is 400 rubles per employee and 600 rubles for each child. Deductions are provided until the month in which the employee's income exceeded 20,000 and 40,000 rubles, respectively.

Is the founding director subject to accident insurance? Employees of the FSS of the Russian Federation tried to answer this question in a letter dated June 27, 2005 No. 02-18 / 06-5674.

Unfortunately, the social insurance companies did not give clear explanations. Moreover, they provided several strange phrase which may confuse the accountant. According to the fund's employees, "cases where the head of an organization is the sole owner of its property are not regulated by labor legislation." After that, they recalled that citizens with whom an employment contract was concluded are subject to accident insurance.

With this wording, one might think that a founding director is not under an employment contract and therefore not subject to accident insurance. It turns out that there is no need to accrue contributions on his salary.

However, the statement that the founding director is not covered by labor laws is incorrect.. In these cases, only Chapter 43 of the Labor Code does not apply. It presents some features of the regulation of the work of managers. For example, if such an employee wants to work part-time in another company, then he needs to obtain permission from the owner of the company (Article 276 of the Labor Code of the Russian Federation). The remaining provisions of the labor law apply to all employees.

As we have already found out, an employment contract is concluded with the director. Therefore, he is subject to social insurance (art. 5 federal law dated July 24, 1998 No. 125-FZ). Therefore, insurance premiums against accidents are charged on the salary of the head. Their size depends on the occupational risk class assigned to the enterprise.

T. Averina, expert