The head of the organization (general director) is the sole executive body and manages the current activities of the company (if a collegial executive body has been formed in the company, together with it). Only in relation to the law that he has the right to act on behalf of the company without a power of attorney. In other words, the leader is precisely the body through which society acquires civil rights and assumes civic responsibilities.
Confirmation: clause 1 of Art. 53 Civil Code of the Russian Federation, paragraphs. 1 clause 3 art. 40 Federal Law No. 14-FZ of February 8, 1998, para. 3 p. 2 art. 69 of Federal Law No. 208-FZ of December 26, 1995
However, the legislation does not formally provide for the period during which it is necessary to appoint a person to a position. general director(directors):
- at state registration newly created organization;
– upon dismissal (change) of a manager.
There is also no obligation to assign the powers of a manager to a member of the company.
At the same time, information about a person who has the right to act on behalf of a legal entity without a power of attorney (about the general director, director) is contained in And if, during the state registration of a newly created organization, the applicant can be not only the manager (but also, for example, the founder), which does not force the organization to appoint him, then when making other changes that are subject to registration in the Unified State Register of Legal Entities (including information about a change of manager), it is impossible to do without appointing a new manager (because it is he who, in the general case, is the applicant for such registration).
For example, when information about the last name, first name, patronymic and position of a person who has the right to act on behalf of the organization without a power of attorney changes, it becomes necessary to in the prescribed manner report this to tax office to make (register) these changes in the Unified State Register of Legal Entities. To do this, you need to submit an application for a change of manager to the tax office, which is drawn up according to unified form No. Р14001, approved. Order No. ММВ-7-6/25 dated January 25, 2012 (see Sample filling when changing the general director). It should be signed not by the previous one, but by the already new manager organizations or other authorized person who has the right to be an applicant (letter of the Federal Tax Service of Russia No. GV-6-14/846 dated August 23, 2006). That is, the legislation does not provide for the possibility of entering into the Unified State Register of Legal Entities information about the termination of the powers of the head of the company without simultaneously entering information about the person newly appointed to this position. Therefore, before the election of a new director, it is impossible to make changes to the information contained in the Unified State Register of Legal Entities about the head of the organization.
It follows that formally the organization has the right to conduct its activities without a leader. However, the absence of a person authorized to act on behalf of the company without a power of attorney actually deprives him of the opportunity to conduct current activities, in particular:
– the organization will not be able to fulfill its obligations to submit tax reports. At the same time, tax and administrative penalties are provided for failure to submit it.
– in case of untimely changes to the information in the Unified State Register of Legal Entities (the presence of false information), the organization may face Negative consequences(up to and including liquidation).
Confirmation: Art. 185, 312, paragraph 2 of Art. 720 Civil Code of the Russian Federation, clause 1, 3 art. 29, paragraph 5 of Art. 80 of the Tax Code of the Russian Federation.
Hassle-free option
For full functioning and maintenance entrepreneurial activity It is advisable for founders (participants) to approve and accept a person who will act as the head of the organization.
In addition, conducting business without employees (including an appointed general director) may lead to claims from regulatory authorities (in particular, the tax inspectorate).
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Often, sole owners of small companies become their managers. In this regard, many questions arise. Is the conclusion legal? employment contract with the director of the company, who is its sole founder? Is it possible in this situation to even talk about the emergence labor relations? Can payments in favor of the director – the sole founder – be taken into account as expenses for tax purposes? Do I need to accrue and submit information to the Pension Fund?
There must always be a director
Let's start with the fact that any entity according to Art. 53 of the Civil Code of the Russian Federation acquires civil rights and assumes civil 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, Art. 32 of which it is stated that supreme body of a company is the general meeting of its participants. Into competence 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 the company to manage its current activities (clause 4 of article 32 of Law No. 14-FZ). From the contents of Art. 40 of Law No. 14-FZ it follows that the sole executive body of the 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 performing the functions of the sole executive body of the company (Law No. 14-FZ does not indicate that it is the employment contract that is being signed, although this is quite logical).
At the same time, in a company consisting of one participant, decisions on issues falling within the competence of the general meeting of company participants are made by its sole participant individually and are documented in writing (Article 39 of Law No. 14-FZ).
Here is a sample of the decision of the sole founder to assume the position of director.
About taking office
Based on the decision of the sole founder of Turservice LLC dated July 10, 2017 No. 1, Dmitry Mikhailovich Somov (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, Kalinin St., 15, apt. 21), I will assume the duties of Director on July 10, 2017.
Due to the absence of an accountant (chief accountant) position on staff, the responsibility for maintaining accounting and I temporarily entrust the reporting to myself. All financial documents of the Company are signed with 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 prescribed in Chapter. 43 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 the organization is individual, which in accordance with the Labor Code of the Russian Federation, other laws and other regulatory legal acts, the constituent documents of the organization and its local regulations, manages the organization, including performing the functions of its sole executive body. The legal relationship between the director and the organization is formalized by an employment contract, and Art. 275 of the Labor Code of the Russian Federation establishes the specifics of its 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 only 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 discussed in the article and should they be formalized in an employment contract? To answer, you need to remember the definition of labor relations. It is given in Art. 15 Labor Code of the Russian Federation:
Labor relations are relations based on an agreement between the employee and the employer on the personal performance by the employee for payment of a labor function (work according to the position in accordance with the staffing table, profession, specialty indicating qualifications; a specific type of work entrusted to the employee) in the interests, under management and control the employer, the employee’s subordination to the internal labor regulations while the employer provides working conditions provided for by labor legislation and other regulatory legal acts containing standards 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 an employment relationship between him and the organization.
Another important conclusion follows from the above quote: the emergence of an employment relationship is always accompanied by the conclusion of an employment contract (agreement between the employee and the employer).
Options for interpreting the law
Next, we will present two polar points of view with corresponding arguments regarding whether labor relations arise (whether employment contracts are concluded) between the organization and its director, who is also the sole founder of the organization.
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Labor relations (employment contracts) |
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Option 1. Arise (conclude) |
Option 2. Do not arise (are not concluded) |
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There are court decisions (decrees 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 address 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 “employment relations on the basis of an employment contract.” Appeal ruling of the Chelyabinsk Regional Court dated November 27, 2014 No. 11-12571/2014: the conclusion of an employment contract with oneself in the situation under consideration does not occur, since the contract is concluded between a legal entity (LLC) and an individual, the relationship between the organization and its head, who is the only participant of this organization, are drawn up in an employment contract, and this manager is subject to general provisions Labor Code of the Russian Federation. Determination of the Perm Regional Court dated October 26, 2011 No. 33-10786: taking into account the provisions 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 the relationship between the company and the director as an employee is regulated by labor law. At the same time, labor legislation does not contain norms prohibiting the application of the general provisions of the Labor Code of the Russian Federation to labor relations when the status of the employee and the employer coincides in one person |
Letters from Rostrud dated 03/06/2013 No. 177-6-1 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 management functions by his decision, which gives him the right to manage the organization without any conclusion. or a contract, including an employment contract. According to Art. 56 of the Labor Code of the Russian Federation, an employment contract is concluded between an employee and an employer. In this situation, there is no employer in relation to the director. That is, an employment contract is not concluded with the director as an employee. Signing 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 relations of the sole participant of the company with the company founded by him. It is curious that the manager - the only founder - does not fall under the list of persons who are not covered by labor legislation contained in Art. 11 Labor Code of the Russian Federation. Therefore, the above interpretation of the norms of the Labor Code of the Russian Federation should be considered broad. It must be admitted that Rostrud is consistent in its judgments. Thus, in Letter dated September 4, 2015 No. 2065-6-1, it considered the question of whether it is possible to hold an organization liable under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation for concluding an employment contract with a manager - the sole founder. This article establishes liability for violation of duties provided for by labor legislation and arising from the labor relations between the employee and the employer. Considering that, in the opinion of Rostrud, in the situation under consideration, no labor relations arise, it must be assumed that violations under Art. 5.27 Code of Administrative Offenses of the Russian Federation also not |
* Left in force by the Determination of the Supreme Arbitration Court of the Russian Federation dated October 28, 2009 No. VAS-13626/09.
** By decision of the Supreme Arbitration Court of the Russian Federation dated June 3, 2009 No. 6597/09, the transfer of this case to the Presidium of the Supreme Arbitration Court for review in the order of supervision was refused.
There is also a third approach (the most profitable for replenishing the budget) - there are labor relations, but there are no employment contracts. It can be seen in letters from the Ministry of Finance, which, although not vested with the right to provide explanations on issues of application labor legislation, nevertheless spoke out on the issue that interests us. Thus, 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. VAS-6362/09, it states: “ If the head of the organization is its only founder, that is, one of the parties to the employment contract is absent, then the employment contract cannot be concluded. …employment relations with the director as an employee are formalized not by an employment contract, but by the decision of the sole participant».
Recognition in expenses 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 one, she may face additional difficulties in terms of recognizing expenses for the salary of the director - the sole founder.
By general rule expenses associated with the payment of wages to employees are taken into account when forming the taxable base for income tax (clause 1 of article 255 of the Tax Code of the Russian Federation) and when applying the simplified tax system with the object “income minus expenses” (clause 6 of clause 1 of article 346.16 of the Tax Code RF).
However, remunerations accrued to both employees and managers, but not provided for in the employment contract, do not reduce taxable profit (clause 21, article 270 of the Tax Code of the Russian Federation). Therefore, in order to take into account payments in favor of the director - the sole founder - in expenses, they must be provided for in the employment contract (see Letter of the Ministry of Finance of the Russian Federation dated October 13, 2015 No. 03-03-06/1/58416).
Let us recall that, due to the position of financiers, an employment contract with the director - the sole founder - is not concluded due to the absence of a second party to such an agreement. This means that the head of the organization, who is its sole founder, cannot accrue and pay to himself wages. Consequently, the organization does not have the right to take into account for tax purposes expenses incurred by the director in the form of paying himself wages (see Letter of the Ministry of Finance of the Russian Federation dated February 19, 2015 No. 03-11-06/2/7790). The department extends this conclusion to both income tax payers and simplified tax payers.
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 constitute an administrative offense. Moreover, if an employee is allowed to work, an employment relationship arises 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 of the employee’s actual admission to work (Part 2 of Article 67 of the Labor Code of the Russian Federation).
When real labor relations take place, and the employment contract is considered concluded even before the written form is drawn up, there are grounds for applying clause 21 of Art. 270 of the Tax Code of the Russian Federation no.
Let us immediately make a reservation 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 expenses have been incurred to pay salaries to the director, the organization can submit a decision on the appointment of the sole founder to the position of head of the organization, as well as pay slips, pay slips, and cash receipts that indicate the payment of salaries.
The fact that the presence of these documents will strengthen your position in court is confirmed by arbitration practice. Thus, the judges recognized the existence of labor relations, and therefore the legality of the expenses incurred if there were:
staffing table, payslips for wages (Resolution of the Federal Antimonopoly Service of the Northern Territory of October 11, 2007 No. A42-5270/2006);
salary certificates, expenses cash orders, payrolls (Resolution of the Federal Antimonopoly Service VSO dated 10.10.2007 No. A33-15270/06-F02-6504/07).
, that is, he believes that there is no labor relationship with the director - the sole founder; payments in his favor clearly fall under 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 adheres to option 1 , payments in favor of the head of the organization, who is the only participant (founder), are subject to insurance premiums.
The Ministry of Labor has always insisted on this (Letter No. 17-3/OOG-330 dated 05/05/2014): 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 maternity and compulsory health insurance. Consequently, for payments made in favor of the general director of the organization, who is its sole founder, insurance premiums are charged in the generally established manner.
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 produced, in particular, within the framework of labor relations.
Attention: For the calculation of insurance premiums, the presence of an employment contract does not matter; the fact of the existence of an employment relationship is important.
Concerning judicial practice, the arbitrators have more than once recognized the legality of payments to the director - the only founder of social benefits (resolutions of the FAS ZSO dated March 15, 2011 in case No. A45-16926/2010, dated November 9, 2010 in case No. A45-6721/2010, dated September 28, 2010 in case No. A45-3921/2010, FAS DVO dated October 19, 2010 No. F03-6886/2010 in case No. A73-2821/2010).
If the organization adheres to option 2 and does not consider the relationship with the founding director to be an employment relationship, then insurance premiums should not be charged for payments to the director, but at the same time the likelihood of claims from the tax authorities is very high.
There are also court decisions, in particular the Resolution 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 deny benefits to 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 fulfilled in reality).
Submission of information to the Pension Fund of the Russian Federation using the SZV-M form
The rules of clause 2.2 of Art. 11 of Federal Law No. 27-FZ establishes that the policyholder submits information on a monthly basis about each insured person working for him in the form SZV-M, approved by Resolution of the Board of the Pension Fund of the Russian Federation dated 01.02.2016 No. 83p (hereinafter referred to as Resolution No. 83p).
If the organization adheres to option 1 , recognizes the relationship with the founding director as labor and has an employment contract with him, then information about the director is clearly subject to reflection in reporting in the SZV-M form (clause 2.2, 4, article 11 of Federal Law No. 27-FZ, clause 1 of Resolution No. 83p, appendix to Resolution No. 83p, clause 1, article 7 of Federal Law No. 167-FZ).
According to the explanations given in letters of the Ministry of Labor of the Russian Federation dated July 7, 2016 No. 21-3/10/B-4587, Pension Fund of the Russian Federation dated 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 has been concluded with these persons, this reporting is submitted to all working insured persons, regardless of the actual payment and other remuneration, as well as the payment of insurance premiums.
If the organization adheres to option 2 and denies the existence of an employment relationship with the founding director, then 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 is recognized as the insured person - the only founder working in it under an employment contract. At the same time, the head of the organization is the only founder with whom there is no contract (labor, civil law) and is not mentioned as an insured person in the said article. The rules of Art. 8, clause 2.2, 4 art. 11 of Federal Law No. 27-FZ provides that information in the SZV-M form is presented only in relation to insured persons working for the insurer.
But we must remember that the Ministry of Labor and the Pension Fund of the Russian Federation have a different point of view on this matter. As stated above, the Ministry of Labor in Letter No. 17-3/OOG-330 dated May 5, 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 Pension Fund of Russia, in Letter No. 08-22/6356 dated May 6, 2016, it also included the manager - the only founder - among the insured persons in respect of whom this reporting is being submitted.
Let us express our own position regarding labor relations and employment contracts with the director - the sole founder. It is quite obvious that there is no universal answer to the question of whether or not an employment relationship arises with a director who is the owner of the organization. In our opinion, everything depends on the specific circumstances.
The director's job is not fiction
When the sole founder of a company, having appointed himself as a director, actually performs the relevant labor function– manages the current activities of the organization, complies with work schedule, concludes transactions, makes business trips, conducts negotiations, etc., then the existence of labor relations between him and the company cannot be denied. As for drawing up an employment contract, of course, signing it by one person on both the employer’s and the employee’s sides looks incorrect. However, this moment rather clearly illustrates the uniqueness of the situation under consideration, rather than indicating the impossibility of drawing up an agreement in principle. In our opinion, an employment contract should be drawn up and a very responsible approach should be taken to describing the manager’s responsibilities (bringing them as close as possible to the tasks actually performed), the amount of the manager’s remuneration and various additional payments. A properly drafted contract will make it easier to prove the validity of tax expenses in the form of payments to the director. Of course, in this case, the organization will have to calculate insurance premiums and submit information about the director using 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, does not actually perform his functions (this is especially noticeable when the organization does not operate at all (no movement on current accounts, no concluded contracts, no jobs, etc.)), then even when creating the necessary paperwork (drawing out an employment contract and other personnel documentation), the existence of labor relations between him and the company should be questioned. Most likely, when checked by the tax authority, the amounts of wages accrued to such a director will not be accepted for tax purposes. In turn, the inspectors will probably require payment of insurance premiums and submission of reports to the Pension Fund. 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 a director of the company. There is no need to draw up an employment contract, nor does it need to acknowledge the existence of an employment relationship between the company and the director. Then the non-accrual of wages in favor of the director will be completely justified and will not create disagreements with the tax authority and the Pension Fund.
Today there is no complete clarity on the issue of formalizing labor relations with the director - the sole founder. The courts recognize the relations that arose as a result of appointment to a position by the decision of the sole owner as labor relations. This solution allows you to manage an organization without concluding an employment contract. At the same time, the presence of an employment relationship in the absence of an employment contract makes it difficult for an organization to recognize payments to the director when calculating taxes. The calculation of insurance premiums and the submission of reports to the Pension Fund also depends on the recognition of the relationship with the director as an employment relationship, and the director himself as an insured person.
Publication
My own director
Vladimir N., together with his partner, were the founders of the Limited Liability Company “M...”, which was engaged in the production of printing products. Vladimir assumes the functions of the head of the organization, and his companion is the chief accountant. The company's staff was small: in addition to the manager and chief accountant, there were 10 workers engaged in production.
One day an inspector from the State Labor Inspectorate came to the office of M... LLC. Looking through the company's documents, the inspector did not find among them an employment contract with the head of the organization. At the same time, there was an order issued and signed by Vladimir N., stating that he was assuming the position of general director. But the order did not contain any information about the manager’s salary. Vladimir explained that he does not pay himself a salary, since he is the founder of the company, and not an employee. However, this explanation did not satisfy the inspector. The inspector issued an order obliging the company to enter into an employment contract with the general director, which would include the amount of his salary and other the necessary conditions in accordance with Article 57 Labor Code.
What salary should be set for the CEO?
Many executives find it absurd that a founding CEO should be paid a salary. After all, he, as a business owner, receives dividends from the profits from the organization’s activities, which are his main income. Nevertheless, the director performs a labor function. This means that you need to conclude an employment contract with him and, on its basis, pay the employee wages. The agreement on behalf of the organization is signed by one of the founders on behalf of the other owners (an explanation on this matter is given in the letter of Rostrud dated December 19, 2007 No. 5205-6-0). In this situation, Vladimir’s partner will act on behalf of the company.
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Document |
Will help you |
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Chapter 43 of the Labor Code |
Correctly conclude an employment contract with the founding CEO |
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Federal Law “On Limited Liability Companies” dated February 8, 1998 No. 14-FZ; |
Draw up regulations on the general director, his job description. Assess the role of the general director as the sole executive body of the company and correlate it with the norms of labor legislation |
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Letter of Rostrud dated December 28, 2006 No. 2262-6-1; |
To defend the position that there is no need to conclude an employment contract with the general director - the sole founder |
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Resolution of the Federal Antimonopoly Service of the North-Western District dated May 19, 2004 No. A1Z-7545/03-20; Ural district dated September 17, 2007 No. F09-2855/07-S1; |
Defend the position that an employment contract with the general director, the sole founder, must be concluded |
But taxes must be deducted from the director’s salary, the amount of which depends on the amount of earnings. Therefore, Vladimir had a question: is it possible to avoid overpayments and assign a salary to the founding general director? minimum size? And how can you legally set a salary below the minimum wage? 1
If an employee is assigned a part-time working day, week or shift, then payment for his work is made in proportion to the time worked or the amount of work performed (Article 93 of the Labor Code of the Russian Federation), which means it may well be lower than the minimum wage. Thus, if you set the director work time, say one to two hours a day, the amount monthly earnings he will get a small one. Do not forget that in this case, in the time sheet you need to put not “eights”, but the corresponding number of hours of daily work.
Does the sole founder need an employment contract?
Often, in practice, the head of a company is its sole founder. Is he obligated to have an employment contract and must he pay his own salary? There are two opposing points of view on this issue in the personnel community.
The first point of view is shared by officials, and arbitration practice has developed in support of the second. Which of these two positions to adhere to is up to you. But given the controversial nature of the issue, be prepared to prove to inspectors from the State Labor Inspectorate or tax authorities the validity of your decision.
If a limited liability company consists of one participant, he himself performs the functions of the general meeting of company participants, including appointing a general director (Article 39 of the Law “On Limited Liability Companies”)
Professional dispute
Do I need an agreement with the director - the sole founder?
Olga Netrebskaya, HR manager at LVB LLC (Samara)
Believes he is needed
The relationship between the employee and the organization is regulated by this document (Article 16 of the Labor Code of the Russian Federation). When a founder appoints himself to the position of head of an organization, he becomes an employee and begins to perform a labor function. The employer in relation to such a director is not himself as an individual, but a legal entity, that is, an organization. Therefore, the coincidence of employer and employee in one person does not occur. Yes, Chapter 43 of the Labor Code, dedicated to the peculiarities of regulating the work of the head of an organization, does not apply to directors of companies who are the only founders, participants or members of the organization. However, this does not mean that the Labor Code does not apply to such directors at all - its other norms apply to them, including the general provisions on the employment contract (Article 57 of the Labor Code of the Russian Federation).
Viktor Linkov, General Director of Melproduct LLC (Volgograd region)
Believes he is not needed
Confirmation - letter of Rostrud dated December 28, 2006 No. 2262-6-1. In the situation under consideration, there is no employer in relation to the general director, while, according to Article 56 of the Labor Code, the employment contract is concluded between the employee and the employer. Signing an agreement by the same person on behalf of the employee and on behalf of the employer is not allowed. The later published letter of the Ministry of Health and Social Development of Russia dated August 18, 2009 No. 22-2-3199 also confirms the above position. In particular, it says that management activities the general director, who is the sole founder, is conducted without concluding any contract, including an employment contract. In addition, the specifics of regulating the work of the head of an organization, established in Chapter 43 of the Code, do not apply to cases where the head is the only founder.
Remember the main thing
Note the experts who took part in the preparation of the material:
Anna Filina, lawyer at GSL-Pravo LLC:
Conclude an employment contract with the director, who is appointed to the position by decision of the founders. In addition to the employment contract, an order for the director to take office is required. When the general director needs to go on a business trip or vacation, he will have to order to assign his duties to a deputy or another employee.
Ekaterina Yashina, chief finance department JSC " Shopping mall"Electronics on Presnya":
If you need to minimize payments, pay the CEO in proportion to the time worked. Register a director on a part-time or part-time basis. The salary cannot be lower than the minimum wage only if the employee has worked out the full working hours for the month (Article 1ZZ of the Labor Code of the Russian Federation).
Natalya Mukhina, Leading Legal Consultant of the Legal Department of LLC " Management Company AGRO-Invet":
The position that an employment contract cannot be signed by the same person for the employee and the employer is controversial. Yes, there is a rule in the Civil Code that prohibits a representative of an organization from making transactions on behalf of the organization in relation to himself (clause 3 of Article 182 of the Russian Federation). But another rule states that civil law does not apply to other relationships.
1 minimum wage is currently 4,330 rubles (Article 1 of the Federal Law of June 24, 2008 No. 91-FZ). Keep in mind that regions set their own minimum wages, which are usually higher than the federal minimum,
The sole founder is the director of the LLC: is he an employee of the organization and should he receive a salary?
The topic of today’s article has come up more than once in questions from our readers, and now it’s time to clarify one of the most common questions: can an LLC not have employees?
First, perhaps, let's speculate a little. In what situation would you even be interested in this question? When the LLC does not have a single employee hired under an employment contract. But what about the director, who is also the head of the organization? Why is he not an employee? What if the founder of the LLC is at the same time a manager who carries out all the necessary activities himself, and simply does not need employees? Is he an employee or not an employee? And if you are an employee, do you have to pay him a salary?
Let's consider different situations
Let's look at the situation a little more broadly. An LLC always has founders, either several of them or one. Now about each situation in order.
Situation 1: several founders (or one founder), the director is an outsider.
In this case, the general director is clearly recognized as an employee of the LLC, with whom the founders must enter into an employment contract. There may be no other employees in the company, since all the work, for example, is done by the founders themselves. The director, as an employee of the organization, must receive a salary, and insurance premiums must be paid for him. The founders receive income in the form of dividends.
Situation 2: several founders, the director is one of them.
In this case, an employment contract must also be signed with the founder, who is entrusted with the responsibilities of the head of the company - that is, he is recognized as an employee of the organization. The signature on the employment contract on the part of the employer is placed by another founder. It is impossible not to appoint a director; the company must have a director who is needed at a minimum to sign documents. The founder, appointed director, must receive a salary and insurance premiums must be paid for him. In addition, he has the right to claim, like the other founders, dividends.
The only conclusion regarding these two situations is this: the head of the organization is recognized as its employee, and accordingly, the LLC has at least one employee - its director!
Situation 3: one founder is also a manager.
This case is the most interesting and problematic. There are a lot of cases when an LLC is founded by one person. It is quite natural that in most of these cases, the sole founder assumes the responsibility for managing the company himself - this is not prohibited by law. What about the employment contract here?
The main problem of this situation is that it is impossible to sign an employment contract, since the same person will sign it on both sides, and this, as you understand, is somehow wrong. On this issue, the opinions of government agencies still do not coincide, and there is still no single and unambiguous answer. But in general we can say the following:
- The absence of a contract does not mean the absence of an employment relationship;
- Labor relations arise both at the time of signing the employment contract and at the time the employee is actually admitted to his duties;
- Relations arising as a result of the appointment of a director are characterized as relations based on an employment contract.
It turns out that such a founder leader is an employee of the organization on the basis of a decision to assign these responsibilities to himself. It is recommended to formalize this fact by order.
The next problem: should such a manager receive a salary? In theory, according to Art. 21 of the Labor Code of the Russian Federation, must. The amount of remuneration is usually reflected in the employment contract, but in the situation described, this document is missing. What should I do? In this case, the salary amount can be indicated in the staffing table - this document is drawn up in mandatory Anyway. By the way, let’s immediately answer the question: why do you need a staffing table in an LLC with one employee, who is also its founder? Personnel documents It is very important to complete it in a timely and correct manner. Those who say that they can do without this will change their minds after the first inspection by the labor inspectorate.
Now let's talk about this. The founder and general director in one person can receive both a salary and dividends. And many people think this: since there is no employment contract, the salary is not fixed anywhere, then you don’t have to pay wages, you don’t have to pay contributions either (they are calculated from your salary), but you only receive dividends - previously the personal income tax rate on them was lower, then This approach was beneficial in that the tax amounts were lower. But this approach can lead to not very pleasant consequences:
- Dividends may not always be paid, but under certain conditions:
- They are paid no more than once a quarter from the net profit that remains after paying all taxes. The payment is made on the basis of the founder’s decision, which must be drawn up on paper in the form of an order, and not “if he wanted, he paid”;
- Payment of dividends is possible only when the authorized capital of the LLC is fully paid, the company has no signs of bankruptcy, and the amount of net assets after the planned payments does not fall below the amount authorized capital(to which, if any, a reserve fund is also added).
- If the above conditions are not met, and dividends are paid according to the “as desired” scheme, then the tax authorities will simply reclassify these amounts into wages. What will happen next?
- Now the personal income tax on wages is 13%, a similar rate is used for taxation of dividends - if the rate on dividends was 9% as before, then you would have to pay additional tax;
- Insurance premiums are paid from wages, but dividends are not paid - the amounts will be recalculated for you into funds.
Conclusion
In this situation the best solution There will be payment of both salaries and dividends. The founder assumes the functions of managing the company by issuing an appropriate order; the salary for calculating wages is reflected in the staffing table. To minimize taxes, the salary can be set in the amount of the minimum wage - it cannot be less than that. By the way, do not forget that the minimum wage changes annually, so you will have to index your own salary every year. Director = founder will receive a salary from which insurance premiums will be paid, as well as dividends in the manner prescribed by law. The payment of dividends must be formalized by an appropriate order. The amounts of salaries and insurance contributions can be taken into account as part of the expenses of the LLC on the basis of an existing order on the assignment of powers, staffing schedule, pay slips and other documents. Naturally, dividends cannot be taken into account in the company's expenses.
Conclusion
Well, finally, some advice: if you are the only founder of an LLC and at the same time its director, and also carry out all the activities independently, then you are probably now thinking, is it possible to do without all these paperwork, controversial issues and problems? You can, for this you had to register as an individual entrepreneur. Therefore, before you go to register an LLC, think about whether you really need it?
In this article we will try to explain in detail how an organization can properly designate its CEO:
1. General director - employee of the organization
Each organization is managed by a sole executive body, usually the general director (Article 40 of the Law of February 8, 1998 No. 14-FZ).
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 is the one who decides all economic and management issues of the organization. As an employee, he is obliged to act within the framework of the employment contract and comply with the Labor Regulations.
2. Employment contract with the general director
Needs to be filed in writing no later than 3 working days from the date of state registration. LLC registration. The General Director can be hired for an indefinite period in general procedure, and under a fixed-term employment contract (clause 2, part 1, article 58, article 275 of the Labor Code of the Russian Federation).
On behalf of the organization, the employment contract with the general director is signed by an authorized executive. Any of the following officials has the right to sign such an agreement:
1. Chairman of the general meeting of participants at which the general director was elected.
2. Chairman of the board of directors (supervisory board), if the election of the head of the organization falls within the competence of the board of directors (supervisory board).
3. A participant in the company authorized to do so by a decision of the general meeting or the board of directors (supervisory board).
4. The owner of the organization (sole participant), if the organization has only one owner.
3. Registration of labor relations with the general director, if the organization has only one owner (founder)
If there is only one owner in the organization, then he makes the decision of the only participant. Based on this decision, the general director is appointed to the position and an employment contract is concluded with him. An order for employment is issued, a personal card is issued for the employee and a record of employment is made in the work book.
This procedure is applied in the case when the duties of the general director (director) will be performed by another person, and not the owner of the organization himself.
It should be taken into account that, according to Rostrud, there is no need to conclude an employment contract with the general director, who is also the owner (sole founder) of the organization. The absence of an employment contract should not result in infringement of such a manager’s labor and social rights.
4. Registration of labor relations with the general director, if the organization has several owners (founders)
At the general meeting of participants, a general director is elected and, of course, a decision is made to appoint the elected one to the position. This decision must be recorded in the minutes of the meeting.
An employment contract is concluded with the elected general director, a hiring order is issued, a personal card is drawn up and a record of employment is made in the work book (if the place of work in your organization is for this employee is the main one). Those. registration of labor relations with the general director, when the organization was created by several founders, is the same as registration of an ordinary employee (even if the general director is one of the founders).
5. Work record book of the general director
After concluding an employment contract with the general director, you need to make an entry in his work book about hiring within 5 days from the date of hiring (if the place of work in your organization is his main one).
An authorized employee (for example, a human resources specialist) or the general director himself, if he is the only employee of the organization, can fill out the work book of the head of the organization. The employer (his representative) has the right to maintain work records of employees. In the latter case, if the head of the organization has no one to delegate these powers to, he himself acts as a representative of the employer (including in relation to himself as an employee).
An entry about hiring a general director in the work book must be made in the general manner. Taking into account the specifics of hiring the head of an organization, it can be formulated as a record of appointment to the position of general director (director).
The following recording options are possible: " Hired as General Director«, « Appointed to the position of General Director" and so on.
In column 4 of the work book, you need to make a reference to the decision of the general meeting of participants (decision of the general meeting of shareholders, decision of the board of directors, other decision of the employer), by which the general director was appointed to the position, or to the order of the general director to take office in free form. For example: " Resolution of the General Meeting of Shareholders No. 2 dated 03/03/2011», « Order No. 204 of 03/03/2011».
Such recommendations are given in letters of Rostrud No. 2894-6-1 dated September 22, 2010, No. 1222-6-1 dated August 15, 2006. Therefore, in column 4 of the general director’s work book, you should not refer to the order to hire him for unified form No. T-1, which is usually indicated in work books all other employees.