If the CEO and founder are the same person. Director and sole founder

When a company is created, the director is elected by the general meeting of participants. An employment contract is concluded with the manager. But according to the law, one person can establish a limited liability company. Is an employment contract necessary in this case and how to conclude it correctly? How to pay for the work of such a “sole worker” and not make mistakes with taxes? You will learn about all this from our article.

The general director of the company is elected by the general meeting of its participants (Clause 1, Article 40 of the Federal Law of 02/08/1998 No. 14-FZ “On Limited Liability Companies”; hereinafter referred to as Law No. 14-FZ). The founders can appoint a person to this position, either from among themselves or from outside.

In general, an employment contract () is concluded with the elected manager. The employer in relation to the employee - general director is the organization represented by one of its owners. On behalf of the organization, the agreement is signed by one of the participants to whom the general meeting has granted such powers.

To avoid controversial and dangerous situations, you can pay both dividends and salaries. In this case, the salary may be the minimum, but not lower than the established one or the industry average.

"Salary" taxes

Both salaries and dividends are taxed, but at different rates. Salary - 13%, dividends - 9%.

Dividends are paid from the net profit of the organization to shareholders (participants) if they have a property right to a share in the authorized capital of the organization. This is not a work activity. Dividends are also not payments related to the performance of work (services) under any civil contract. Therefore, they are not the basis for the calculation and, accordingly, payment of insurance premiums ().

On a note

In the event of liquidation of an organization, the director, the sole founder, can assert his rights both as a creditor and as a shareholder.

As a creditor, he will secondarily claim payment in the amount of average monthly earnings ().

As a shareholder, he lays claim to the property remaining after satisfying the claims of all creditors ().

When calculating wages, an obligation arises to pay insurance contributions to extra-budgetary funds. They are accrued on all remunerations and payments in favor of the employee made within the framework of labor relations and civil contracts for the performance of work or provision of services (Article 7 of the Federal Law of July 24, 2009 No. 212-FZ “On insurance contributions to the Pension Fund of the Russian Federation , Social Insurance Fund of the Russian Federation, Federal Compulsory Medical Insurance Fund"). This also applies to the payment of salaries to the director - the only founder. For an organization, this is a waste of money. But for a person it is undoubtedly a positive factor, since he has the right to all types of social insurance benefits - maternity benefits, etc. - on an equal basis with all other employees. This is directly indicated in subparagraph 1 of paragraph 1 of Article 2 of the Federal Law of December 29, 2006 No. 255-FZ “On compulsory social insurance in case of temporary disability and in connection with maternity.”

Thus, the manager has to make a choice and take into account that with the payment of dividends and a lower income tax rate, he will have to make contributions for future pension provision from personal funds.

How to account for expenses

In general cases, accrued wages can be taken into account as part of labor costs (). What about the salary of the director - the only founder? In our opinion, this clause of the Tax Code is applicable in this case, even if a written agreement with the general director - the sole founder was not concluded. After all, labor relations take place, since the employee is actually allowed to work, regardless of whether the contract is concluded “on paper” or not (,).

There is no need to draw up an employment contract with the director - the sole founder. After all, there should not be the same signature on both sides of the agreement, and the organization does not have another owner (letter from the Ministry of Health and Social Development of Russia dated August 18, 2009 No. 22-2-3199)

Paragraph 1 of Article 255 of the Tax Code determines that labor costs include any accruals to employees in cash and in kind related to the maintenance of these employees, provided for by the laws of the Russian Federation, labor or collective agreements. This paragraph refers, in particular, to established legal norms. And the basic norms of legislation in the field of labor relations and labor contracts are enshrined in the Labor Code.

In addition, in accordance with all expenses must be economically justified and documented. Labor costs, in the absence of an employment contract, can be confirmed by any documents indicating the existence of an employment relationship between the manager and the organization. This could be a staffing table, pay slips, and so on. That is, this once again confirms that the expenses for the salary of the general director - the only founder - can be taken into account in tax expenses.

And yet, it is necessary to take into account that during the inspection the Federal Tax Service may not agree with such conclusions and this position will have to be defended in court. But there is positive judicial practice for the taxpayer (resolutions of the Federal Antimonopoly Service of the North-Western District dated October 11, 2007 No. A42-5270/2006, East Siberian District dated October 10, 2007 No. A33-15270/06-F02-6504/07, North-Western District dated April 23, 2010 in case No. A13-5979/2009).

O. O. Kruzhilina, for the magazine "Practical Accounting"

Help in solving practical situations

Since 2001, the Practical Accounting magazine has published articles with specific solutions and recommendations. The publication is now also available in electronic form.

Since June 28, 2017, a company’s debts can be recovered from its controlling persons, for example, from the CEO or founders. This rule applies even if the company is excluded from the Unified State Register of Legal Entities.

!Important update!

After entering information about the termination of the legal entity’s activities into the Unified State Register of Legal Entities its founder has no right to receive the remaining property until settlements with creditors are completed.

Document:“Review of judicial practice in the application of legislation on legal entities (Chapter 4 of the Civil Code of the Russian Federation)” (approved by the Presidium of the Arbitration Court of the North Caucasus District on 07/06/2018)

Let’s look at it in detail from the Founder’s and Lender’s side:

!Important update!

The Supreme Court of the Russian Federation indicated that if the head of a company created a situation where the Federal Tax Service could not collect the debt, which led to the initiation of bankruptcy proceedings, then he does not have the right to evade responsibility.

!Important update!

Judicial practice has opened to collect tax arrears from the general director.

Having studied this information, you will probably have questions and doubts about the future economic security of the General Director (Director), since the issue is very serious and until the time for the inevitable collection of debts at the expense of your property is lost, take advantage of our written consultation - we will study your situation in detail, We will answer all your questions and justify the reality of your concerns, and offer solutions.

Application for written consultation: [email protected]

Any counterparty at some point may stop fulfilling its obligations. The first reaction to this is attempts to come to an agreement. Then the lawyer sends a complaint, which often remains unanswered. As a result, it turns out that the counterparty has already been liquidated or the company does not have funds in its accounts. The lawyer is forced to challenge the liquidation and try to collect debts from the controlling persons (Article 10 of the Federal Law of October 26, 2002 No. 127-FZ). Until recently, controlling persons could only be brought to justice in bankruptcy cases, but due to the liquidation of the debtor, the courts dismissed the case.

At the end of 2016, Federal Law No. 488-FZ dated December 28, 2016 “On Amendments to Certain Legislative Acts of the Russian Federation” was adopted. The amendments come into force on June 28, 2017. They simplified debt disputes with controlling persons.

Let's take a closer look.

When choosing a legal form (individual entrepreneur or LLC), the main argument in favor of registering a company is often the limited liability of a legal entity. In this, Russia differs from other countries where a company is created for the sake of partnership, and not because of avoiding financial risks. About 70% of Russian commercial organizations are created by a single founder, who, in most cases, manages the business himself.

Many companies do not really function, not even earning enough for the director’s salary and not differing in profitability from a freelancer who provides services in his free time from hired work. However, legal entities in Russia are registered as often as individual entrepreneurs.

First, let’s find out where the confidence comes from that it is financially safe to conduct business in the form of an LLC? Article 56 of the Civil Code of the Russian Federation states that the founder (participant) is not liable for the obligations of the organization, and the organization is not liable for its debts.

That is why, to the question: “What responsibility does the founder of an LLC bear?” the majority answers - only within the limits of the share in the authorized capital.

Indeed, if the company is solvent and pays on time to the state, employees and partners, then the owner cannot be attracted to pay the company’s bills. The created organization acts in civil circulation as an independent entity and is itself responsible for its own obligations. As a result, a false impression is created of a complete lack of responsibility of the LLC owner to creditors and the budget.

However, the limited liability of a company is valid only as long as the legal entity itself exists. But if an LLC is declared bankrupt, then the participants may be subject to additional or subsidiary liability. True, it is necessary to prove that it was the actions of the participants that led to the financial disaster of the company, but creditors who want to get their money back will make every effort to do this.

Article 3 of Law No. 14-FZ dated 02/08/1998: “In the event of insolvency (bankruptcy) of a company due to the fault of its participants, these persons, in the event of insufficient property of the company, may be assigned subsidiary liability for its obligations.”

Subsidiary liability is not limited to the size of the authorized capital, but is equal to the amount of debt to creditors. That is, if a bankrupt company owes a million, then it will be recovered from the founder of the LLC in full, despite the fact that he contributed only 10,000 rubles to the authorized capital.

Thus, the concept of limited liability within the authorized capital is relevant only to the organization. And the participant can be held to unlimited subsidiary liability, which in a financial sense makes him equal to an individual entrepreneur.

The liability of the LLC director for debts arises if there are such signs of guilty actions or inaction:

Indicative in this sense is the ruling of the Arbitration Court of the Jewish Autonomous Region dated July 22, 2014 in case No. A16-1209/2013, in which 4.5 million rubles were recovered from the founding director. Having a company that had been involved in heat and water supply for many years, he entered a new company with the same name in a competition for the right to lease utility infrastructure facilities. As a result, the previous legal entity was left without the ability to provide services, and therefore did not repay the amount of the previously received loan. The court recognized that the insolvency was caused by the actions of the owner and ordered the loan to be repaid from personal funds.

Prosecution procedure

At what point does the founder become responsible for the activities of the LLC? As we said above, this is only possible in the process of bankruptcy of a legal entity. If an organization simply ceases to exist, having honestly paid all creditors during the liquidation process, then there can be no claims against the owner.

Protecting the interests of the budget and other creditors is the law of October 26, 2002 No. 127-FZ “On Insolvency (Bankruptcy)”, the provisions of which are also in force in 2017. It details the procedure for carrying out bankruptcy and bringing to responsibility the managers and owners of the company, as well as persons controlling the debtor.

The latter refers to persons who, although not formally owners, had the opportunity to instruct the manager or participants of the company to act in a certain way. For example, one of the most impressive amounts in the case of bringing to subsidiary liability (6.4 billion rubles) was recovered from the controlling debtor of a person who was not part of the company and did not formally manage it (Resolution of the 17th Arbitration Court of Appeal in the case No. A60-1260/2009).

What conclusions can be drawn from all that has been said:

The liability of a participant is not limited to the size of the share in the authorized capital, but can be unlimited and repaid from personal property. There is little point in establishing an LLC just to avoid financial risks.

If the company is run by a hired manager, provide for an internal reporting procedure that allows you to have a complete picture of the state of affairs in the business.

Accounting statements must be under strict control; loss or distortion of documents is a particular risk factor indicating deliberate bankruptcy.

Creditors have the right to demand collection of debts from the owner himself if the legal entity is in the process of bankruptcy and is not able to meet its obligations.

It is more difficult to attract the owner of an enterprise to pay business debts than an individual entrepreneur, but since 2009 the number of such cases has been in the thousands.
Creditors must prove the connection between the financial insolvency of the company and the actions or inaction of the participant, but in some situations there is a presumption of his guilt, i.e. no proof required.

Withdrawal of assets from a company on the eve of bankruptcy is a significant risk of criminal prosecution.

It is better to initiate the bankruptcy procedure without delaying it.

Collection of LLC debts from the director 2017

In 2017, cases of collection of company debts from equity holders became more frequent.

The opportunity to collect from the owner a debt that exceeds the property of the LLC and its authorized capital arises, as we have already noted, during the bankruptcy of the company.

In this situation, the concept of subsidiary liability comes into force, namely additional obligations of the manager, who is responsible for the debts of the debtor organization in the legally established manner.

The possibility of repaying the obligations of an LLC at the expense of the shareholder’s personal funds is provided for by the Law “On Insolvency (Bankruptcy)” dated October 26, 2002 N 127-FZ.

According to amendments to the Law dated 06/05/2009, creditors can hold the founder of the company, as well as senior officials of the organization (manager, chief accountant, manager and others) financially liable.

This is possible if one of the following circumstances occurred during the bankruptcy of the LLC:

the founder made a decision regarding the activities of the company, the implementation of which brought losses to counterparties and creditors;

the founder approved the decision, the implementation of which influenced the bankruptcy of the organization;

the founder (director, accountant) did not ensure the appropriate maintenance and safety of tax reporting and accounting documentation;

The management of the company (founder, director) did not submit an application to the arbitration court to recognize its own financial insolvency, provided that all relevant circumstances were present.

If one of the above conditions occurs, the creditor or any other interested party has the right to demand repayment of the LLC’s debts at the expense of the founder’s personal funds.

To do this, it is necessary to file a statement of claim with the court, to which all available documentary evidence of the owner’s guilt must be attached.

If the application is sent as part of a bankruptcy case, then it is considered by the arbitration court.

If the LLC is officially declared bankrupt, and the plaintiff is a creditor, then the decision to collect the debt is considered by a court of general jurisdiction. In the latter case, the defendant is directly the founder as an individual.

Upon execution of the court proceedings, a decision is made whether the founder’s actions were committed culpably or not. If guilt is proven, the court obliges the defendant to satisfy the material demands of creditors and counterparties at the expense of personal funds, or, if they are insufficient, with their own property.

Criminal liability of the CEO and founder in 2017

The legislation provides for criminal liability of the founder (founders) for unlawful actions in relation to the activities of the Limited Liability Company.

In financial and legal practice in 2016, evidence of unlawful actions of the founder was the most common case in which the owner received criminal punishment.

Such actions may include:

• concealment of the company's property and falsification of information about its value;
• illegal disposal of the organization's property;
• illegal repayment of material claims of creditors;
• financially inadequate satisfaction of property claims from debtors.

The owner faces imprisonment if his fault causes losses to society in the amount of more than 250 thousand rubles.

Article 179 of the Criminal Code of the Russian Federation provides for bringing the founder to criminal punishment if his actions contained coercion to conclude a transaction (or refusal), which subsequently directly or indirectly affected the organization’s losses.

Do not forget about generally accepted legal norms, violation of which entails criminal punishment not only for the shareholder, but also for senior officials of the organization. Thus, criminal liability arises if the founder initiated or committed actions that led to:

• evasion of payment by an enterprise of national taxes and fees;
• abuse during the issue of the organization’s own securities;
• illegal transfer of funds in foreign currency and, as a result, evasion of customs duties.

Bringing a shareholder to criminal liability is carried out within the framework of lawsuit proceedings. The initiator of the application may be creditors and counterparties.

If the applicant for compensation of losses is the company itself, then its interests in court are represented by a manager who has passed the competitive selection procedure. If a company is officially declared bankrupt, a bankruptcy creditor acts on its behalf.

Manager and founder rolled into one

The subsidiary liability of the founder and director of an LLC for the obligations of a legal entity has its own characteristics. In a situation where an organization is managed by a hired general director, some share of the financial risks passes to him. According to Article 44 of the Law “On LLC”, the manager is responsible to society for losses caused by his guilty actions or inaction.

The liability of the LLC director for debts arises if there are such signs of guilty actions or inaction:

• making a transaction to the detriment of the interests of the enterprise he manages, based on personal interest;
• concealment of information about the details of the transaction or failure to obtain the approval of participants when such a need exists;
• failure to take measures to obtain information relevant to the transaction (for example, the integrity of the counterparty was not verified or information about the licensing of the contractor’s activities was not clarified, if the nature of the work requires this);
• making decisions about a transaction without taking into account information known to him;
• forgery, loss, theft of company documents, etc.

In such situations, the participant has the right to file a claim against the manager for compensation for damage caused. If the director proves that in the process of work he was limited by the orders or requirements of the owner, as a result of which the business became unprofitable, then responsibility will be removed from him.

But what if the owner is the manager of the company? In this case, it will not be possible to refer to an unscrupulous hired manager. The presence of outstanding debts obliges the sole executive body to take all measures to repay them, even if the owner is the only one, and at first glance, does not infringe on anyone’s interests with his actions.

The manager must submit an application to recognize the legal entity as a debtor, but if he does not do this, then employees, contractors, and tax authorities have the right to begin bankruptcy proceedings. In this case, the party filing the claim appoints the selected arbitration manager, and this is of particular importance in attracting the owner to the obligations of the LLC.

In addition, in order to increase the bankruptcy estate, the plaintiff has the right to challenge transactions made within a year before the application for declaring the debtor bankrupt was accepted. In cases where the transaction was completed at prices below market prices, the period for challenging is increased to three years.

During the insolvency process, the director, business owner, and beneficiary are involved in the proceedings. If the court recognizes the connection between the actions of these persons and insolvency, then a penalty in the amount of the plaintiff’s claims is imposed on personal property.

Intentional bankruptcy and judicial practice

In modern Russia, deliberate bankruptcy, as well as fictitious bankruptcy, is one of the most common ways of evading debt obligations. Insolvency, or bankruptcy, in domestic legislation is understood as “the inability of a debtor, recognized by an arbitration court, to fully satisfy the claims of creditors for monetary obligations and (or) to fulfill the obligation to make mandatory payments.”

Methods of committing deliberate bankruptcy include: concluding transactions on conditions that are obviously unfavorable for the debtor, alienation of the debtor’s property, which is not accompanied by adequate monetary or material compensation. If bankruptcy is intentional in nature, then circumstances arise that allow it to be qualified as intentional bankruptcy, which is an illegal act in accordance with the legislation of the Russian Federation. Researchers note the high social danger of deliberate bankruptcy. Many cases of deliberate bankruptcy do not lead to criminal liability of the persons who are its initiators and organizers and do not entail any consequences, which significantly increases the social danger of this act. The existence of numerous shell companies, the spread of corruption and fraudulent schemes is a serious problem of modern Russian business, and it is to solve this problem that the legislator has assigned various types of liability for deliberate bankruptcy.

Russian legislation provides for criminal liability for deliberate bankruptcy in accordance with Art. 196 of the Criminal Code of the Russian Federation. According to this article, intentional bankruptcy, understood as the commission by the head or founder (participant) of a legal entity or citizen, including an individual entrepreneur, of actions or inactions that entailed a deliberate inability to satisfy the claims of creditors or fulfill obligations to pay mandatory payments, in the event that it has caused major damage and entails criminal liability. In Art. 196 of the Criminal Code of the Russian Federation provides for the following types of punishment for deliberate bankruptcy: a fine in the amount of two hundred thousand to five hundred thousand rubles or in the amount of wages or other income of the convicted person for a period of 1 to 3 years; forced labor for up to 5 years; imprisonment for a term of up to 6 years with a fine in the amount of up to two hundred thousand rubles or in the amount of wages or other income of the convicted person for a period of up to 18 months or without it.

Thus, deliberate bankruptcy is an intentional crime of a material nature, which can be considered completed if the crime resulted in large damage. Then the subject of the crime becomes subject to criminal liability in accordance with Russian legislation. As evidenced by the analysis of judicial practice, under Art. 196 of the Criminal Code of the Russian Federation imposes fines, but the severity of the punishment increases in proportion to the amount of damage, as well as other related factors.

For example, in 2017, in Vorkuta, an entrepreneur was sentenced to 2.5 years in prison in a general regime colony for withdrawing funds to other accounts and causing damage to the state in the amount of 15.8 million rubles. If the actions of the subject in deliberate bankruptcy did not result in major damage, administrative liability may arise. Administrative liability for deliberate bankruptcy is provided in accordance with paragraph 2 of Art. 14.12 of the Code of Administrative Offenses of the Russian Federation “Fictitious or deliberate bankruptcy.”

If the actions or inaction of the guilty person(s) do not contain elements of a criminal offense, then deliberate bankruptcy is subject to the imposition of an administrative fine: for individuals - in the amount of one thousand to three thousand rubles; for officials - from five thousand to ten thousand rubles, disqualification for a period of one to three years is also possible. The main problem of bringing perpetrators to justice for deliberate bankruptcy is the difficulty of proving the crime. It aggravates the situation, as V.N. notes. Zhadan, the lack of a detailed methodology that allows identifying the main signs of deliberate bankruptcy. This seriously complicates the qualification of crimes under Art. 196 of the Criminal Code of the Russian Federation.

It should also be noted that the current legislation does not indicate other responsible persons as the subject of the crime - deputy heads of the organization, chief accountants, members of the temporary administration, members of the board of directors, bankruptcy trustees, etc., who may also be involved in organizations of deliberate bankruptcy. It is difficult to disagree with the opinion of M.A. Zinkovsky, who considers Art. 196 of the Criminal Code of the Russian Federation there is no clear and unambiguous definition of intentional bankruptcy. This circumstance also greatly complicates the possibility of criminal prosecution for deliberate bankruptcy. From our point of view, one of the main reasons for the difficulty of applying Art. 196 of the Criminal Code of the Russian Federation “Intentional bankruptcy” is a very ambiguous concept of “major damage” in relation to the bankruptcy procedure.

Another factor that has a significant impact on the application of Art. 196 of the Criminal Code of the Russian Federation “Intentional bankruptcy” in practice, lies in the insufficient level of professional training of law enforcement specialists investigating cases of intentional bankruptcy. To successfully investigate such cases, it is necessary to have serious knowledge at the intersection of jurisprudence and economic disciplines, but finding employees with a similar level of training is not so easy.

Thus, the main measures necessary to increase the effectiveness of liability for intentional bankruptcy include: detailed development of the definition of intentional bankruptcy; clarification of the criteria allowing for criminal prosecution for deliberate bankruptcy; a clearer distinction between the characteristics entailing criminal and administrative liability for deliberate bankruptcy; expansion of the subject composition of persons who can be held liable for deliberate bankruptcy by including deputy managers, members of boards of directors, chief accountants, bankruptcy trustees and other persons capable of organizing deliberate bankruptcy; advanced training for employees of investigative units of law enforcement agencies investigating cases of deliberate bankruptcy.

Recently, more and more often in judicial practice there have been cases of bringing former managers of bankrupt companies to subsidiary liability on the basis of paragraph 2 of Article 10 of the Federal Law “On Insolvency (Bankruptcy)”, namely for failure to fulfill the obligation to apply to the arbitration court with an application to declare the debtor bankrupt .

In accordance with paragraph 1 of Article 9 of the Federal Law “On Insolvency (Bankruptcy)”, the head of the debtor is obliged to apply to the arbitration court to declare the company bankrupt in the following series of cases:

If satisfying the claims of one creditor or several creditors makes it impossible for the debtor to fulfill monetary obligations, the obligation to pay obligatory payments and (or) other payments in full to other creditors;

If the authorized body of the debtor made a decision to apply to the arbitration court with the debtor’s application;

If foreclosure on the debtor’s property significantly complicates or makes the debtor’s business activities impossible;

If the debtor meets the criteria of insolvency and (or) signs of insufficiency of property and in other cases provided for by the said Law.

According to Article 2 of the Federal Law “On Insolvency (Bankruptcy)”, insufficiency of property should be understood as the excess of the amount of monetary obligations and obligations to pay obligatory payments of the debtor over the value of the property (assets) of the debtor. Insolvency is the termination of the debtor's fulfillment of part of his monetary obligations or obligations to pay obligatory payments, caused by insufficient funds. In this case, insufficient funds are assumed unless proven otherwise. Paragraph 2 of Article 9 of the Federal Law “On Insolvency (Bankruptcy)” stipulates that the debtor’s application must be sent to the arbitration court in the cases provided for in paragraph 1 of this article as soon as possible, but no later than a month from the date of occurrence of the relevant circumstances.

In accordance with paragraph 2 of Article 10 of the Federal Law “On Insolvency (Bankruptcy)”, violation of the obligation to submit the debtor’s application to the arbitration court in the cases and within the time limit established by Article 9 of the said Law entails subsidiary liability of persons subject to the Federal Law “On Insolvency”. (bankruptcy)” is charged with the obligation to make a decision on filing an application by the debtor with the arbitration court and filing such an application for the debtor’s obligations that arose after the expiration of the period provided for in paragraphs 2 and 3 of Article 9 of the Federal Law “On Insolvency (Bankruptcy)”.

From the above legal norms it follows that the possibility of bringing the persons named in paragraph 2 of Article 10 of the Federal Law “On Insolvency (Bankruptcy)” to subsidiary liability arises in the presence of a combination of the following circumstances: - the occurrence of one of those listed in paragraph 1 of Article 9 of the Federal Law “On Insolvency” (bankruptcy)” circumstances; — failure by the persons specified in paragraph 2 of Article 10 of the Federal Law “On Insolvency (Bankruptcy)” to file an application for bankruptcy of the debtor within 1 month from the date of occurrence of the relevant circumstance; - the presence of an appropriate subject of responsibility, which can be a director, general director, as well as a liquidator or chairman of the liquidation commission, that is, persons who are charged with filing a bankruptcy petition under the Federal Law “On Insolvency (Bankruptcy)”; — the occurrence of obligations by the debtor, for which these persons are brought to subsidiary liability, after the expiration of the period provided for the fulfillment of the obligation to go to court; - the fault of the subject of liability is not in filing a bankruptcy petition for the debtor.

To apply subsidiary liability on the grounds provided for in paragraph 2 of Article 10 of the Federal Law “On Insolvency (Bankruptcy)”, the applicant is obliged to justify under what circumstances, provided for in paragraph 1 of Article 9, the debtor should have gone to court, as well as when exactly he was obliged to apply, since the subsidiary liability of the managers of the debtor - a legal entity or members of the liquidation commission (liquidators), provided for in this article, is possible only for obligations that arose after the expiration of the deadline for filing an application to the arbitration court for the debtor's bankruptcy.

As an example of negative practice for company managers, one can cite the bankruptcy case of ZZhBiK-Volgogradneftegazstroy LLC No. A12-23546/2009, initiated at the request of Volgogradregiongaz LLC. As part of a separate dispute on bringing to subsidiary liability the controlling persons of the debtor, the court found the following. From the balance sheet dated December 31, 2008, it follows that the debtor met the criteria of insolvency and insufficient property; the debtor’s assets did not allow him to fulfill the obligation to repay accounts payable in full. It follows that the debtor’s director had to apply to the arbitration court to declare the debtor bankrupt no later than January 31, 2009.

After January 31, 2009, the debtor incurred obligations to creditors in the total amount of 4,645,326.47 rubles. In addition, the court found the debtor’s director to be guilty of failure to fulfill the obligation established by paragraph 1 of Article 9 of the Federal Law “On Insolvency (Bankruptcy)”, since the director addressed the company participant with notifications about the presence of signs of bankruptcy, which was confirmed by the case materials. The arbitration court rightfully invalidated the defendant’s argument that the company’s charter, making a decision to apply to the court to declare the debtor bankrupt is the prerogative of the founder, since the Federal Law “On Insolvency (Bankruptcy)”, which, of course, takes precedence over the constituent document society, establishes the responsibility of the manager to go to court. Based on the above, the court recovered 4,645,326.47 rubles from the debtor’s former manager in the form of subsidiary liability.

On the contrary, in a separate dispute within the framework of case No. A31-7153/2012 regarding the application of Avtobaza ZhSK LLC to declare itself bankrupt, the court refused to satisfy the application to bring the former director of the debtor to subsidiary liability on the basis of the following. The applicant of the Federal Tax Service of Russia referred to the presence of tax arrears in the amount of 175,292 rubles, due for payment on March 31, 2011.

According to the authorized body, the obligation to apply to the court with the debtor declaring himself bankrupt arose on 07/01/2011; accordingly, the application should have been filed no later than 08/01/2011. Having assessed this argument, the court found that the applicant had not documented that it was on July 1, 2011 that the debtor’s manager became obligated to file a bankruptcy petition with the arbitration court. The mere presence of accounts payable at a certain moment does not indicate that the manager has such an obligation, and the financial statements were not presented in the case file. Thus, without establishing all the circumstances included in the subject of proof, the court refused to satisfy the application to bring the former manager of the debtor to subsidiary liability.

In many ways, the result of considering an application for subsidiary liability depends on how controlled the bankruptcy procedure is. Participation in a separate dispute of an arbitration manager who supports the position of the defendant (as in the second example) greatly contributes to the court’s decision to refuse to hold the persons controlling the debtor liable for subsidiary liability. It follows that a model of behavior in which the head of a company, when problem debt arises, does not take any action and lets the situation take its course is completely unacceptable and unacceptable. One of the possible negative consequences of such inaction may be the creditor filing an application to declare the debtor bankrupt, approval of the candidacy of the arbitration manager proposed by the creditor-applicant, subsequently bringing the debtor’s manager to subsidiary liability and foreclosure on his personal property, and starting from 07/01/2015 it will be possible for the creditor to file an application to declare the former manager of the debtor bankrupt.

A favorable and promising scenario in the event of signs of bankruptcy is to turn to specialists who will analyze the current financial condition of the company and help initiate controlled bankruptcy, with the help of which you can not only minimize the risks of being brought to subsidiary liability, but also legally, in the most economically profitable way, to get rid of accounts payable .

Last news

The Ministry of Justice proposed to prohibit founders from participating in the liquidation of legal entities

The Ministry of Justice has developed amendments to the Civil Code that complement the provisions on the liquidation of legal entities. A source in the financial and economic bloc of the government spoke about this. The bill is currently being coordinated with other departments.

The amendments make significant changes to Art. 61 of the Civil Code, which describes the liquidation of companies. Now clause 5 of Art. 61 of the Civil Code stipulates that the court can oblige the authorized government body, founders and participants of the company to liquidate it, but if the court decision is not implemented, then the bankruptcy manager must liquidate the company.

The new version of this clause immediately obliges the arbitration manager to liquidate the company without the participation of its founders or participants. Liquidation takes from six to twelve months. The court will be able to extend this period for another six months.

Losses of citizen-shareholders can be assigned not only to developers, but also to those who stand behind them

A project has been submitted to the State Duma that involves significant changes in the regulation of shared-equity construction. One of them provides for joint liability of the developer and persons who can determine its activities.

Controlling persons are those who can give instructions to the sole executive body (general director, management company) or a member of the collegial management body of the developer. This list is not closed.

It should be noted that the document does not contain criteria according to which the fact of control could be determined. If the project is not changed, then the courts will be able to establish this fact, even if there are no formal signs of control, for example, ownership of a certain share in the authorized capital of an LLC. This approach was common in insolvency jurisprudence before the Bankruptcy Act defined who the controlling person was.

Document: Draft Federal Law N322981-7

Sign of bad faith

Multiple deviations of the transaction price from the market level can be taken into account during on-site and desk audits as one of the signs of receiving an unjustified tax benefit

It is reported, in particular, that according to paragraph 1 of Article 105.17 of the Tax Code of the Russian Federation, monitoring the compliance of prices applied in controlled transactions with market prices cannot be the subject of on-site and desk audits.

In cases not provided for in Section V.I of the Tax Code of the Russian Federation, tax authorities do not have the right to challenge the price of goods (work, services) indicated by the parties to the transaction and taken into account for taxation as part of on-site and desk audits.

However, multiple deviations of the transaction price from the market level can be taken into account as part of an on-site and desk audit as one of the signs of obtaining an unjustified tax benefit in the aggregate and in connection with other circumstances indicating a discrepancy between the execution of the transaction and the content of the financial and business transaction.

Document: Letter of the Federal Tax Service of Russia dated November 27, 2017 N ED-4-13/23938

The Federal Tax Service of Russia provides an overview of legal positions based on the results of consideration of disputes related to bankruptcy procedures for the 3rd quarter of 2017

If there are signs of objective bankruptcy of the debtor and there is no evidence that the debtor’s manager has fulfilled an economically justified plan for overcoming the crisis the debtor's director cannot be released from subsidiary liability.
The bankruptcy trustee applied to the court to hold the former manager of the debtor vicariously liable on the basis of paragraph 2 of Article 10 of the Bankruptcy Law.

Judicial practice for collecting debts from the founder of an LLC

As is known from the Civil Code of the Russian Federation and, for example, the LLC Law, the manager is obliged to compensate the company for losses caused by his unreasonable or dishonest behavior. The Supreme Arbitration Court of the Russian Federation spoke about this and there is a lot of judicial practice on this matter, but it continues to be replenished with examples of “mistakes” of the leadership, which cost them dearly.

Thus, the AS of the North-Western District considered a situation where the general director of an LLC entered into an agreement with a contractor to develop a certain concept for the construction of a thermal power plant. This concept cost 20 million rubles, but, as it turned out, the society had absolutely no need for it and did not correspond to the construction project, which at that time was already being done by another contractor. In addition, the LLC paid for the work before it was completed, and the result was contrary to the agreements. The courts regarded the hiring of a useless contractor as dishonest behavior by the manager. He was not saved even by the fact that the deal was approved by the general meeting of participants (this, by the way, is a common practice).

Document: Resolution AS of the North-Western District dated December 5, 2017 in case No. A56-62473/2014

Satisfying the stated requirements, the court of first instance, in its ruling dated June 22, 2016 in case No. A50-5458/2015, indicated that as of July 23, 2010, the debtor had signs of bankruptcy and its manager, from this date, had an obligation to apply for declaring the debtor bankrupt , which was not done, which resulted in an increase in accounts payable.

By the decision of the Seventeenth Arbitration Court of Appeal dated 09/08/2016, upheld by the decision of the district court dated 11/29/2016, the ruling of the first instance court was canceled and the stated claim was denied with reference to the fact that, due to established judicial practice, during the period when the former manager the debtor became obligated to apply to the arbitration court to declare the debtor bankrupt, the presence of arrears in insurance contributions for compulsory pension insurance was not a basis for initiating bankruptcy proceedings.

The courts indicated that the bankruptcy trustee did not provide evidence indicating that as of July 23, 2010, the debtor, having a disputed debt on insurance premiums, stopped fulfilling monetary obligations to other creditors due to insufficient property (or that satisfying the claims of one or several creditors were entailed by the impossibility of the debtor fulfilling monetary obligations to other creditors), and also did not carry out business activities. The arguments of the authorized body about the debtor conducting business activities and repaying obligations to other creditors in the absence of fulfillment of obligations to the budget were not taken into account.

In addition, the district court additionally pointed out that the mere presence of formal signs of bankruptcy among the debtor in any case is not sufficient evidence of the emergence of an obligation to apply to the court for bankruptcy.

Canceling judicial acts of lower instances when considering a cassation appeal from an authorized body and sending the dispute for a new consideration, the Supreme Court of the Russian Federation, in its ruling dated July 20, 2017 N 309-ES17-1801, set out the following legal positions:
- if the debtor’s manager proves that the mere occurrence of signs of insolvency or the circumstances named in paragraphs five and seven of paragraph 1 of Article 9 of the Bankruptcy Law did not indicate objective bankruptcy (the critical moment at which the debtor, due to a decrease in the value of net assets, became unable to fully satisfy the demands of creditors, including the payment of obligatory payments) and the manager, despite temporary financial difficulties, conscientiously expected to overcome them within a reasonable time, made every effort to achieve such a result, implementing an economically justified plan, such a manager with taking into account the general legal principles of legal liability (including those presupposing, as a general rule, the presence of guilt), he is exempt from subsidiary liability for the period while the implementation of his plan was reasonable;
- the plan for overcoming the crisis is not economically justified, in which during the period from the date of the appearance of signs of bankruptcy to the day of the introduction of the first bankruptcy procedure, the debt to the budget has increased many times;
- to determine the signs of insolvency or insufficiency of property, the legal significance is the total volume of debt obligations incurred, and not their structure. When analyzing the financial condition of the debtor, those obligations that do not allow the creditor to initiate bankruptcy proceedings are not excluded from the total number of his obligations. Thus, the conclusions of the appellate court, which excluded the debt to the extra-budgetary fund, are erroneous;
- the method of doing business used by the debtor: repayment of debt on those civil obligations that are directly related to the production process and sales of products, and at the same time failure to take any measures to fulfill fiscal obligations, does not meet the principle of good faith.

Collection of taxes from the General Director

The Constitutional Court recognized the legality of collecting tax arrears from citizens who were held accountable for tax crimes.

The Constitutional Court allowed the collection of tax arrears outstanding by the company from the company's employees and other persons whose illegal actions led to the non-receipt of taxes to the budget. Only fines imposed on the company for non-payment of taxes cannot be recovered. At the same time, it is possible to recover damages caused to the state from individuals if the company itself has not paid off the arrears and has been liquidated.

Such a restriction does not apply if the company serves only as a “cover” for the actions of the individual controlling it. At the same time, when determining the amount of compensation for damage by an individual, the court has the right to take into account his property status, degree of guilt, nature of the criminal punishment, as well as other significant circumstances.

In practice, there are often situations when the general director is the only founder. At the stage of development of a company, you always want to save money, including on paying yourself a salary and “salary” taxes, as well as by drawing up zero reporting, so as not to spend money on complex accounting.

But if you pay wages even at the “minimum wage” (in Moscow - 16,500 rubles), then taking into account income tax and contributions to funds, “salary” costs will be about 23,500 rubles. For many at the stage of business formation, even this amount is quite significant. In addition, when calculating salaries, there can be no talk of any “zero” reporting - reporting will have to be prepared, not only for the Federal Tax Service, but also for funds (FSS and Pension Fund). And this will lead to additional financial costs.

In this regard, the question arises: does the sole founder, who is the CEO, need to enter into an employment contract and pay himself a salary, or can this be somehow done without?

Let's start with the fact that the legislation of the Russian Federation does not provide for any clause or article that directly states that the sole founder-general director is allowed not to pay a salary. However, the legislation does not contain a rule obliging it to be paid. All justifications for the possibility of not paying wages are based on the interpretation of legal norms and explanatory letters from departments.

Let's figure it out.

Do you need an employment contract?

According to Article 273 of the Labor Code of the Russian Federation, the provisions of the chapter apply to heads of organizations regardless of their organizational and legal forms and forms of ownership, with the exception of those cases when the head of the organization is the only participant (founder).

That is, the law directly states: if the manager is the only founder, then the labor regulations of the head of the organization do not apply to him. Including the provisions of Article 275 of the Labor Code of the Russian Federation on concluding an employment contract with a manager.

It is not very clear what to do with signing an employment contract. In the case where the founder and the manager are the same person, it turns out that the general director will have to enter into an employment contract with himself. Indeed, in this case, the signatures on the part of the employer and on the part of the employee will be the same.

Explanations for this situation are provided by Rostrud in letter dated 03/06/2013 No. 177-6-1. And this is how officials reason.
An employment contract is a bilateral agreement between an employee and an employer. Each party to the contract assumes certain obligations. The employee is obliged to perform labor functions in accordance with the established procedure. The employer must provide appropriate working conditions. If one of the parties is absent, the contract cannot be concluded. Therefore, if the founder and manager are the same person, there is no need to conclude an employment contract.

The possibility of not concluding an employment contract was confirmed by the Ministry of Finance of Russia in its letter dated February 19, 2015 No. 03-11-06/2/7790. The department also believes that the director cannot sign an employment contract with himself. And since there is no contract, then there are no grounds for paying wages.

In our opinion, there cannot be a violation of the law if the general director works, but there is no employment contract, since the duties of the director are one thing, and the labor relationship with the employee is another. The General Director is obliged to act on behalf of the organization on the basis of the Charter; for this he does not have to enter into an employment relationship with his company.

In our opinion, the absence of an employment contract is the safest way to avoid paying wages to the director.

Thus, labor relations that involve the payment of wages are not necessary for the general director to perform his functions as a sole executive body. The general director can perform his functions on the basis of the order on taking office and the Charter.

If the general director is the only founder, he is not obliged to enter into an employment contract with his company, obliging himself to perform labor functions and comply with internal labor regulations. He can perform all his functions as a sole executive body at any time, without limiting himself to the confines of a worker.

As for the salary, if it is still planned to be paid, an employment contract can be concluded, because the signing of an employment contract on both sides by the same person does not contradict labor legislation.

No questions arise in a situation where the general director is not the only founder. In such situations, an employment contract can and should be concluded. It can be signed by one of the founders.

How to justify non-payment of wages

Here are the most common arguments for non-payment of wages.

• Dividends instead of salaries

If you decide to pay only dividends to the founding manager, you must follow the general rules for processing such payments. Payments must be made:

• no more than once a quarter;
• at the expense of the organization’s net profit remaining after paying all taxes;
• based on the owner's decision.

• All profits go to development

There is also a way not to pay wages if there is an employment contract, namely:

• Indefinite leave without pay

• application by the general director to grant him indefinite leave without pay;
• an order granting the general director an indefinite leave at his own expense.

Way to save

If an employment contract is concluded and the director’s salary is paid, then you can save money by stipulating in the employment contract the condition of working part-time, i.e. part-time (4 hours instead of 8 hours a day, 20 instead of 40 hours a week). Then the salary can be half as much. True, in this situation it is better to focus not on the regional “minimum wage”, but on the average salary level in your industry. Recently, for tax officials, the compliance of wages with the minimum wage has ceased to be a criterion for the absence of “salary” schemes; they compare company salaries with industry averages.

To summarize the above, I would like to say that in our practice, cases of imposition of penalties in the absence of an employment contract or non-payment of salaries to the director are extremely rare. Therefore, we believe that there is no need to waste time on completing a large number of unnecessary documents and worry about liability for the fact that the founding CEO does not receive a salary.

Often, sole owners of small companies become their managers. In this regard, many questions arise. Is it legal to conclude an employment contract with the director of a company, who is its sole founder? Is it even 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 calculate insurance premiums and submit information to the Pension Fund?

There must always be a director

Let's start with the fact that any legal entity, in accordance with 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 the supreme body of the company is the general meeting of its participants. 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 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 what exactly 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 the staff, I temporarily assume the responsibility for maintaining accounting and reporting. 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 an organization is an individual who, 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 labor law norms, a collective agreement, agreements, local regulations, an 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.

* 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 the letters of the Ministry of Finance, which, although not vested with the right to give explanations on the application of labor legislation, nevertheless spoke out on the issue of interest to 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.

As a 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, 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, clause 1, article 346.16 Tax Code of the Russian Federation).

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 calculate and pay wages to himself. 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, cash receipts orders, pay slips (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, made, 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.

As for judicial practice, 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 to the position of director, actually performs the corresponding labor function - manages the current activities of the organization, observes labor regulations, concludes transactions, makes business trips, conducts negotiations, etc., then the existence of labor relations between him and the company is denied it is forbidden. 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.

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

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

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

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

Meanwhile, there are also advantages - using the situation in a way that is beneficial to you. And in both cases, guided by legal norms.

Employment contract with the sole founder

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

By the way, letters from Rostrud and the Ministry of Finance are not normative 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 opportunity to receive monthly income from the business, regardless of whether there is profit;
• — social guarantees (payment of vacations and various benefits);
• — formation of pension insurance length of service for calculating pensions.

Examples of officials’ opinions against concluding an employment contract: letters of Rostrud dated 03/06/2013 No. 177-6-1, dated 12/28/2006 No. 2262-6-1, letter of the Ministry of Finance dated 02/19/2015 No. 03-11-06/2/7790, letter of the Ministry of Health and Social Development dated August 18, 2009 No. 22-2-3199. Here are their arguments:

1. If the only founder and director are one person, then the employment contract will contain two identical signatures, he concludes with himself, which is impossible.

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

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

As you can see, the statements are very controversial.

Is the director's employment contract with himself or with the company?

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

1. The parties to the employment contract are different– director as an individual and 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, an employment contract between the director “with himself” is possible.
2. Chapter 43 of the Labor Code, which officials refer to, describes the relationship with the manager, who is not the founder. The Labor Code itself does not prohibit concluding 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 the sole founder insurance legislation. 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 will find that the insured persons are “those working under an employment contract, including heads of organizations who are the only participants (founders)".

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

Order for director - sole founder

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

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

Those. first you need to sign the decision of the sole participant 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 to the director - the sole founder, which says approximately the following: I, full name, begin to perform 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 Labor Code of the Russian Federation. The entry for employment is made according to the general rules established by the Rules for maintaining and storing work books (approved by Decree of the Government of the Russian Federation of April 16, 2003 N 225), as well as the Instructions for filling out work books, approved. Resolution of the Ministry of Labor of the Russian Federation dated October 10, 2003 No. 69.

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

Entry into the work book is done as follows:

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

If you plan to enter into an employment contract not only with the director, but also to 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 may be paid only upon concluding an employment contract. If it is not there, 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 profits, the Tax Code indicates any remuneration to managers, except under an employment contract (clause 21 of Article 270 of the Tax Code of the Russian Federation).

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

The only founder and director in one person without an employment contract

There is also the opposite situation, when the founder does not want to enter into an employment contract, but performs management functions. Since we have 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 legislation.

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 current management of the LLC’s activities.

There is no connection here with 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 management 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 Pension Fund of Russia in the form SZV-M. 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, there was no need to apply for a founding director with whom an employment contract was not concluded and who does not receive a salary. This was explained by the fact that such persons were not recognized as employees, and therefore as insured persons.

However, the Pension Fund of Russia has changed its position since March 2018. Now SZV-M for the founding director is submitted in any case, regardless:

• — the presence or absence of an employment contract concluded with him;
• - the presence or absence of wage payments to him;
• — the organization conducts business activities or stops them.

A SZV-STAZH report is also 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, an employment relationship arises with the employee due to his actual admission to employment.

On this topic you can read: letters of the Pension Fund of the Russian Federation No. LCH-08-24/5721 dated 03/29/18, 17-4/10/B-1846 dated 03/16/18.

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

Is the founding director included in the DAM?

In the Calculation of Insurance Premiums (RAV) form, section 3 includes personalized information on the amount of wages accrued to each employee.

Therefore, if an employment contract is concluded with the founding director and he is paid a salary, 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 dated 06/18/18 No. 03-15-05/41578, letter of the Federal Tax Service No. GD-4-11/6190@ dated 04/02/2018) Section 3 of the DAM should also include information about the director - the sole founder, even if an employment contract has not been concluded with him and he does not receive wages. In this case, subsection 3.2 will have zero indicators.

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

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

No matter how you do it, 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 must be one person.

If you don’t have time to spend time on accounting routine, if you have more important tasks in your business, 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.