Founder and director represented. The founder and he is the director: is it necessary to draw up a job description and conclude an employment contract with him

Thus, the General Director is at the same time the sole executive body of a legal entity, including a limited liability company (LLC) (Articles 53, 91). Civil Code of the Russian Federation ( Civil Code of the Russian Federation) ), and his employee (part six of article 11 Labor Code of the Russian Federation ( Labor Code of the Russian Federation) ) The activities of the General Director as the sole executive body of the company are governed by civil law, and as an employee by labor law.

Therefore, an employment contract must be signed with the CEO.

Moreover, if he is the sole founder of the LLC, some features appear.

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

FEATURES OF LEGAL REGULATION OF LABOR OF THE HEAD are defined in chapter 43 of the Labor Code of the Russian Federation, however, in Art. 273 Labor Code of the Russian Federation ( Labor Code of the Russian Federation)   it is indicated that the provisions of this chapter do not apply to cases where the head of the organization is the sole member of the legal entity. Regarding the latter case, one should speak out especially.

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

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

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

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

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

We consider it necessary to note that there is another point of view, which we consider erroneous, that in the case when the leader is the sole participant in the organization, an employment contract should not be concluded. This position at one time in a letter dated December 28, 2006 No. 2262-6-1 was expressed by the Federal Service for Labor and Employment (Rostrud). Rostrud substantiated his position by saying that it is impossible to conclude an employment contract, since in such a situation “there is no employer with respect to the general director”, bearing in mind that in this case the employee and the employer are the same person. And the Social Insurance Fund of the Russian Federation in a letter dated June 27, 2005 N 02-18 / 06-5674, explaining the issue of compulsory social insurance against industrial accidents, generally concluded that cases where the head of the organization is the sole owner of its property, not regulated by labor law.

Once again, we want to note that we consider this position to be erroneous and not based on legal norms (the letters themselves are not normative acts by virtue of their status), since it does not take into account any of the provisions of art. 11, 16 Labor Code of the Russian Federation ( Labor Code of the Russian Federation) , nor the provisions of Article 20 Labor Code of the Russian Federation ( Labor Code of the Russian Federation) according to which the employer is the organization itself (legal entity), and not the founder or, especially, the director. And it is a legal entity, regardless of the number and status of participants, through its bodies, independently acquires rights and bears responsibilities as an employer.

This position has received support in judicial practice - see the Decision of the FAS of the North-Western District of May 19, 2004 N A13-7545 / 03-20, the Resolution of the FAS of the Ural District of September 17, 2007 N F09-2855 / 07-C1, Decision of the Federal Antimonopoly Service of the West Siberian District of December 5, 2007 N Ф04-8301 / 2007 (40653-А45-25).

As for the form of the contract for this case, we recall that the features of the legal regulation of the work of the head, as defined in chapter 43 Labor Code of the Russian Federation ( Labor Code of the Russian Federation)   according to Art. 273 Labor Code of the Russian Federation ( Labor Code of the Russian Federation)   do not apply to cases when the head of the organization is the sole member of the legal entity.

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

CONCLUSION:

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

If the General Director is not the sole founder of the company, then he is elected by the general meeting of participants of the company, and an agreement is signed by the person who chaired the general meeting of participants or authorized by the general meeting of participants.

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

Answer prepared by:

GARANT Legal Consulting Service Expert

Goryunova Olga

The answer checked:

GARANT Legal Consulting Service Reviewer

Serkov Arkady

Moscow

Answer of Expert No. 2

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

Recruitment

Some experts believe that there is no need to conclude an employment contract with the director, who is the sole founder. It’s hard to agree with that. After all, the director makes decisions, issues orders, manages the activities of the company, etc. Therefore, labor relations arise between him and the organization. They are drawn up by an employment contract (Articles 15, 16 of the Labor Code of the Russian Federation).

In general cases, an agreement with a manager is concluded for a specified period. This is stated in article 275 of chapter 43 of the Labor Code. But since this chapter does not work in the situation “the owner himself is the director himself”, the contract can be concluded for an indefinite period.

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

Firstly, the director can conclude an employment contract with himself. True, in paragraph 3 of Article 182 of the Civil Code there is a clause that a representative of a company cannot conclude transactions in relation to himself. But this provision applies specifically in civil law, for example, in relation to business contracts. The labor legislation indicates only one case of cancellation of an agreement with an employee - if he has not started work within a week (Article 61 of the Labor Code of the Russian Federation). This issue has no relation to the issue of signing an employment contract by the same person.

The second option is that on behalf of the company a contract may be signed by one of the employees of the company. For example, it could be a human resources officer.

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

As with any other employee, a personal card is issued to the manager.  For this, a form in form No. T-2 is provided.

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

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

All by code

The director, like any employee, is subject to the guarantees provided for in the labor law. For example, weekends, payment of sick leave.

It happens that the director is not only the sole founder, but also the only employee. But even this fact does not limit his right to leave. Thus, article 124 of the Labor Code prohibits working without rest for two consecutive years.

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

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

You can get around this legal requirement if the director goes on vacation “at his own expense”. But this option is not suitable for all companies. For example, those organizations that “froze” the business and only the head himself is on the staff can take advantage of it. But when the company conducts business activities, the absence of the director looks very strange. After all, he has to sign contracts, payment documents, statements, etc. This will be an indicator that the director is actually fulfilling his duties, and therefore he is entitled to a salary with all the ensuing tax consequences.

Payments to the budget and funds

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

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

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

Unfortunately, the social insurance did not give clear explanations.  Moreover, they cited a somewhat strange phrase, which may mislead the accountant. According to the fund’s employees, “cases when the head of the organization is the sole owner of its property are not regulated by labor law.” After that, they recalled that citizens with whom an employment contract is concluded are subject to accident insurance.

Following this wording, one might think that an employment contract is not concluded with the founding director, and therefore it is not subject to accident insurance. It turns out that his salary does not need to accrue contributions.

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

As we have already found out, an employment contract is concluded with the director. Therefore, it is subject to social insurance (Article 5 of the Federal Law of July 24, 1998 No. 125-ФЗ). Therefore, accrued insurance premiums are accrued on the head’s salary. Their size depends on the class of professional risk assigned to the enterprise.

T. Averina, expert

The sole founder and director in one person is a typical picture for a small business. Moreover, launching a startup’s profit often requires the manager to invest a year or more in his development work and money, 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 salaries, keeping personnel records and handing over a huge amount of “salary” statements.

Meanwhile, in the business that has already taken place, one wants something completely different - social guarantees (sick leave, vacations), the formation of pension savings, and monthly salaries. These are the benefits of an employment contract.

Do I need to conclude an employment contract and pay salaryif 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 the exact yes or no, then I will immediately disappoint you.

Meanwhile, there are advantages - to use the situation in the way that suits you. Moreover, in both cases, guided by the norms of law.

Employment contract with sole founder

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

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

We have briefly outlined above the reasons why an employment contract with a single founder can be profitable, we repeat:

• - the ability to receive monthly income from the business, regardless of the availability of profit;
• - social guarantees (payment of holidays and various benefits);
• - the formation of a pension insurance experience for calculating a pension.

Examples of opinions of officials against the conclusion of an employment contract: letters from Rostrud dated 03/06/2013 No. 177-6-1, dated 12.28.2006 No. 2262-6-1, a letter from the Ministry of Finance dated 02.19.2015 No. 03-11-06 / 2/7790, a letter from the Ministry of Health and Social Development of August 18, 2009 No. 22-2-3199. Here are their arguments:

1. If the sole founder and director are in one person, then in the employment contract there will be two identical signatures, he is with himself, which is impossible.

In paragraph 3 of Art. 182 of the Civil Code of the Russian Federation, it is said that an agreement signed by the same person on both sides does not have 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 a manager) says 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 allegations are very controversial.

Director's employment contract with himself or with the company?

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

1. Parties to an 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, the director’s labor contract “with himself” is possible.
2. Chapter 43 of the TC, to which officials refer, describes the relationship with a leader who is not a founder. In the TC itself, there is no prohibition to conclude an employment contract with the sole founder. And even in Article 11, among persons for whom labor law 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 find that the insured are “working under an employment contract, including the heads of organizations that are the only ones participants (founders). ”

Similar norms are found in laws No. 326-ФЗ dated November 29, 2010 (medical insurance) and No. 255-ФЗ dated December 29, 2006 (social insurance).

Order for the director - the sole founder

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

The text of the contract states that the employee "is assigned the duties of the Director General on the basis of the decision of the founder (participant) No. ... .. from ........"

Those. first you need to sign the decision of the sole participant in the company. The decision will say: "I entrust the duties of the Director General to myself."

Based on the decision, an order is issued for the director - the sole founder, which says something like the following: I, full name, begin to act as the general director of LLC “...” from (date). Ground of decision: decision of the only member of the society № ... from ...

The requirement to issue an order for employment is contained in Art. 68 of the Labor Code of the Russian Federation. An entry for employment shall be made according to the general rules established by the Rules for maintaining and storing labor books (approved by Decree of the Government of the Russian Federation of 16.04.2003 N 225), as well as the Instructions for filling out labor books, approved. Decree of the Ministry of Labor of the Russian Federation of 10.10.2003 No. 69.

The signed order of fulfillment of duties will be the order of employment. On the basis of the concluded labor contract and order, an entry is made in the labor book.

The entry in the work book is done as follows:

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

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

Salary of the director - the sole founder

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

Please note that the salary of the director - the sole founder can be paid only upon conclusion of an employment contract. If it does not exist, 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 profit, the Tax Code indicates any remuneration to managers, except under an employment contract (paragraph 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 calculated.

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

There is a reverse situation when the founder does not want to conclude an employment contract, but performs managerial 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 law.

Article 53 of the Civil Code, Art. 32, 33, 40 of the Law “On LLC” indicate that the director is the sole executive body of the company  and carries out the current management of the LLC.

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

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

SZV-M to the founding director

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

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

• - the presence or absence of an employment contract concluded with him;
• - the presence or absence of payments to him of wages;
• - conducting organization of economic activity or stopping it.

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

The officials explain their demand by the fact that article 16 of the Labor Code states that even without an employment contract in this case, labor relations arise with the employee because of his actual admission to employment.

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

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

Is the founding director included in the RSV?

In the calculation form for insurance premiums (RSV) in section 3 are included 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 his payments should be reflected in section 3.

However, according to the last position of officials (letter of the Ministry of Finance of 06/18/18 No. 03-15-05 / 41578, letter of the Federal Tax Service No. GD-4-11 / 6190 @ of 02/04/2018) section 3 of the RSV should 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, in subsection 3.2 there will be zero indicators.

Officials explain this by the fact that despite the absence 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 intentionally examined not only the problem of concluding or not concluding an employment contract, but also the submitted reporting. Because in the same situation the same bodies say completely different things. Fantasy! An employment contract cannot be in principle, but at the same time it is. 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 as it suits you best - concluding or not concluding an employment contract. But in the reports, the sole founder and director in one person should be required.

If you have no time to waste time on an accounting routine, if you have more important tasks in the business, then write on the page or in 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.

On this issue, we adhere to the following position:

An employment contract with the head of the organization is also concluded when he is at the same time the sole participant in this legal entity.

If the employment contract describes in detail the rights and obligations of the employee of the company holding the position of director, it is not necessary to draw up the job description of the director.

Justification of the position:

Immediately, we note that the legislation does not unambiguously determine the need to conclude an employment contract with the head of the organization, which is its only participant who has decided to appoint himself to the post of leader.

From p.p. 1 and 4 tbsp. 40 of the Federal Law of 08.02.1998 N 14-ФЗ "On Limited Liability Companies" (hereinafter - the Law on LLC) it follows that the procedure for the sole executive body of a limited liability company (director, general director, etc.) and adoption decisions are determined by him, including a contract concluded between such a company (hereinafter also referred to as the company, LLC) and a person performing the functions of its sole executive body.

Such an agreement shall be signed on behalf of the company by the person who chaired the general meeting of the company’s participants, at which the person acting as the sole executive body of the company, or by the company’s member authorized by the decision of the general meeting of the company’s members, or if the resolution of these issues is within the competence of the board of directors ( of the supervisory board) of the company, by the chairman of the board of directors (supervisory board) of the company or a person authorized by the decision of the board of directors (supervisory th Board). Given that within the meaning of Art. 39 of the Law on LLCs, the sole participant in the LLC makes decisions on all matters within the competence of the general meeting of the company’s participants, it cannot be definitely stated that in a situation where the company has a single participant, there is no need to conclude an agreement between the company and its director.

With regard to labor legislation, the features of labor regulation of the head of the organization are established by Chapter 43 of the Labor Code of the Russian Federation (hereinafter - the Labor Code of the Russian Federation). Article 273 of the Labor Code of the Russian Federation provides that the provisions of this chapter apply to heads of organizations regardless of their organizational and legal forms and forms of ownership, with the exception of a number of cases, including the case when the head of the organization is the sole participant (founder), a member of such an organization. That is, the provisions of the Labor Code of the Russian Federation, defining the particulars of regulation of labor of heads of organizations, do not apply to relations between a company and its director, which is at the same time the only participant in this company. However, this does not exclude the possibility of applying the general provisions of the Labor Code of the Russian Federation to such relations, which link the need to conclude an employment contract with the occurrence of an employment relationship between an employee and an employer.

Under the employment relationship refers to a relationship based on an agreement between the employee and the employer on the personal performance of the employee for a fee of the labor function (work in accordance with the staffing table, profession, specialty with qualifications; a specific type of work assigned to the employee) in the interests, under the management and control of the employer, subordination of the employee to the rules of the internal labor schedule when the employer provides working conditions stipulated by labor legislation and other normative legal acts containing labor law norms, collective agreement, agreements, local normative acts, labor agreement.

Labor relations arise between the employee and the employer on the basis of an employment contract concluded by them in accordance with the Labor Code of the Russian Federation (part one of article 15, part one of article 16 of the Labor Code of the Russian Federation).

In judicial practice, a legal position was formulated, according to which the provisions of the Labor Code of the Russian Federation do not contain rules prohibiting the application of the general provisions of this code to labor relations when the employee and the employer coincide in one person, although it excludes the application of the provisions of chapter 43 of the Labor Code to such legal relations RF (see, for example, the Decree of the Federal Antimonopoly Service of the West Siberian District dated November 9, 2010 in the case of N A45-6721 / 2010, the Federal Antimonopoly Service of the Moscow Region of April 21, 2010 No. KA-A40 / 3564-10, the Federal Antimonopoly Service of the North-Western District of December 29, 2008 N A21-3046 / 2008).

The courts also indicated that in cases where the director of the company is its sole participant, labor relations arise between the company and its leader, but they are not formalized by an employment contract, but by a decision of the sole participant of the company, taken in accordance with Art. 39 of the Law on LLCs (see, for example, the determination of the Supreme Arbitration Court of the Russian Federation dated 06.06.2009 No. 6362/09, the resolution of the Federal Antimonopoly Service of the North-Western District of September 26, 2011 No. F07-7163 / 11, the Federal Antimonopoly Service of the West Siberian District of November 17, 2009 No. F04- 7046/2009, FAS of the Ural District of 09.09.2009 No. F09-6759 / 09-C2, FAS of the Far Eastern District of 15.07.2009 N F03-3199 / 2009; appeal ruling of the Civil Court of the Sverdlovsk Regional Court of 02.26.2015 in the case of N 33-2695 / 2015).

It should be noted that these conclusions were formulated mainly in relation to disputes regarding the payment to the head of the company, which is its sole participant, of insurance coverage for compulsory social insurance at a time when there was no indication in the legislation governing relations on such insurance that the category of persons working under an employment contract and recognized by virtue of this as insured persons includes the heads of organizations, which are simultaneously the only astronomers (founders, members) of such organizations. That is, using the above reasoning, the judges substantiated the right of such leaders to receive insurance coverage in the form of temporary disability benefits, maternity allowance, etc.

Meanwhile, in the wording effective from 01.01.2012 (the date of entry into force of the Federal Law dated 03.12.2011 N 379-ФЗ), paragraph 1 of paragraph 1 of Art. 2 of the Federal Law of 29.12.2006 N 255-ФЗ "On compulsory social insurance in case of temporary disability and in connection with motherhood" stipulates that persons working under employment contracts who are subject to compulsory social insurance in case of temporary disability and in connection with maternity, including including heads of organizations that are the only participants (founders), members of organizations. The relevant provisions are also provided for in other federal laws regulating compulsory insurance relations (Clause 1, Article 7 of the Federal Law of 15.12.2001 N 167-ФЗ On Compulsory Pension Insurance in the Russian Federation, Clause 1, Article 10 of the Federal Law of November 29, 2010 N 326-ФЗ "On Compulsory Health Insurance in the Russian Federation").

Representatives of the Ministry of Health and Social Development of Russia and Rostrud have repeatedly expressed the opinion that, if the sole founder of a legal entity and the head of such an organization coincide with the head, his employer is absent, therefore, in this case, an employment contract with the General Director as with the employee is not concluded. The labor legislation does not apply to the relations of the sole member of the company with the company established by him, therefore, the managerial activity of the head of the company, who is his sole participant, is carried out without concluding any contract, including labor (letter of the Ministry of Health and Social Development of Russia of 08/18/2009 N 22-2 -3199, Rostrud dated 06.03.2013 N 177-6-1, dated 12.28.2006 N 2262-6-1, dated 15.08.2006 N 1222-6-1) * (1).

From our point of view, such a legal position is not certain. First of all, we note that an employer (organization) is recognized as having entered into an employment relationship with an employee (part four of article 20 of the Labor Code of the Russian Federation), and not one or another governing body of this legal entity. The management bodies of a legal entity (other authorized persons) only exercise the rights and obligations of the employer in labor relations (part six of article 20 of the Labor Code of the Russian Federation). Therefore, the argument about the coincidence of the employer and the employee is invalid if the company enters into an employment contract with the leader, who is the sole participant in this company.

According to the meaning of the first part of Art. 15, parts of the second article 57 of the Labor Code of the Russian Federation, work as a leader is a labor function. As noted in paragraph 2 of the resolution of the Plenum of the Armed Forces of the Russian Federation dated 02.06.2015 N 21, the labor function of the head of the organization is to perform actions on behalf of the organization to exercise its rights and obligations arising from civil, labor, tax and other legal relations (owner’s ownership powers , use and disposal of the property of the organization, the owner of exclusive rights to the results of intellectual activity and equivalent means of individualization, rights and obligations of the employer in labor relations with E employees of the organization, etc.). This explanation is given with reference to the first part of Art. 273 of the Labor Code of the Russian Federation, but essentially applicable to the activities of the leader in cases where the sole member of the company and his leader are one person. Thus, on behalf of the organization, taking actions to exercise its rights and obligations arising from civil, labor, tax and other legal relations, the sole member of the company actually performs the labor function of the head of the organization. Meanwhile, the implementation of the labor function means the emergence of an employment relationship between the employee and the employer. And labor relations, as already noted, arise on the basis of an employment contract.

As follows from the first part of Art. 15 Labor Code of the Russian Federation, the labor function is carried out for a fee. The terms of remuneration of the employee are indicated in the employment contract (part two of article 57 of the Labor Code of the Russian Federation). Even if the sole participant of the company and its leader coincide in one person, it is necessary to distinguish between the payment of wages, which is due to the implementation of the labor function, and the receipt of a part of the company's net profit, the necessary condition for which is the status of a participant in this company.

Finally, it should be noted that within the meaning of the first part of Art. 1, Art. 2, parts of the first art. 56 of the Labor Code of the Russian Federation, the settlement of relations between an employee and an employer by way of concluding an employment contract is necessary, inter alia, to ensure the stability of labor relations and certain conditions for the employee to carry out labor activities. It is possible that in a society in which there is currently one participant, new participants will appear in the future, that is, there will be two or more participants. It is also possible (including if there is a single participant in the LLC) the transfer of authority to act on behalf of the company in relations with its head to the board of directors (supervisory board) of the LLC, and in certain circumstances to the board or other collegial executive body (paragraph 1 3 article 66.3 of the Civil Code, clause 2.1 article 32 of the Law on LLC). In these cases, it will no longer be possible to claim that the powers of the employer in relations with the director of the LLC are exercised by the same person who holds the position of director. Neither civil nor labor laws indicate the need for such circumstances to conclude an employment contract with the head. The conclusion of an employment contract with the director of the LLC (the sole member of the company) only when two or more members appear in the company or when the rights of the employer to the other members of the company is transferred to other bodies of the company seems illogical and for the reason that these circumstances do not in themselves affect the manager his labor function, that is, their appearance does not lead to a change in the scope of authority of the director of the LLC or the procedure for their implementation. In a situation where the rights and obligations of the employer in relations with the director of the company will not be exercised by this person as the sole participant of the LLC, but by the general meeting of participants or other bodies of the company (which in principle cannot be excluded in the case under consideration), legal uncertainty may arise regarding the working conditions of the head of the company. Meanwhile, such conditions make up the content of the employment contract with the employee.

Of course, in the case when the rights and obligations of the employer in relations with a person vested with the powers of the sole executive body (director) of the company are exercised by the same person as the sole participant in this company, it would be incorrect to assert that the company violates the labor rights of the head by not concluding an employment contract. However, taking into account all of the above, we believe that it is still necessary to conclude an employment contract with the director of the company in order to avoid negative consequences for the manager himself in the future.

It should be noted that in one of the latest explanations posted on the Rostrud information portal “Onlininspektsiya.RF”, an opinion was expressed that did not coincide with the position of this department set forth above, namely, that the sole founder of the company, acting as director, should conclude an employment contract, since the Labor Code of the Russian Federation does not contain rules prohibiting the application of its general provisions to relations between a company and its leader - the sole participant (founder) of this company (see material: " c: Can an employment contract be concluded with the director, if he is the sole founder of the company? If not, how is the payroll based on what is it calculated? (Rostrud information portal "Onlinsinspektsiya.RF", April 2016 ) ").

As for the job description, we note that its compilation by the norms of labor legislation is not provided. In a letter dated 09.08.2007 N 3042-6-0 Rostrud noted that the absence of a job description should not be regarded as a violation of labor law and entail liability, but may have negative consequences in the form of unlawful decisions by the employer in connection with its lack of. Thus, the lack of job description in some cases prevents the employer from making a reasonable refusal to accept a job (since it may contain additional requirements related to the business qualities of the employee), objectively evaluate the employee’s activities during the probationary period, distribute labor functions between employees, temporarily transfer the employee to another job, evaluate the integrity and completeness of the employee's labor function.

Based on the foregoing, we believe that the company should independently evaluate the need to develop a job description for the director of the company. If the rights and obligations of the head will be fully described in the employment contract, we believe that such an instruction regarding the position of director of the company may not be drawn up.

Encyclopedia of solutions. Job description.

Answer prepared by:
   GARANT Legal Consulting Service Expert
Erin Pavel

Quality control response:
   GARANT Legal Consulting Service Reviewer
Voronova Elena

Question: Is it necessary to conclude an employment contract when the sole participant in the company is its sole executive body - the general director? (Rostrud's information portal "Online inspection.RF", March 2016).

Often the sole owners of small firms become their leaders. In this regard, many questions arise. Is it right to conclude an employment contract with the director of the company, which is its sole founder? Is it possible in this situation to talk about the emergence of labor relations? Can payments in favor of the director, the sole founder, be included in expenses for tax purposes? Is it necessary to charge insurance premiums and provide information to the FIU?

Director must always be

To begin with, any legal entity in accordance with Art. 53 of the Civil Code of the Russian Federation acquires civil rights and assumes civil obligations through its bodies. Small travel agencies are most often created in the form of an LLC, so it is appropriate to refer to Law No. 14-FZ, in Art. 32 of which it is indicated 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 the Law No. 14-FZ). The executive body is necessary for the company to manage its current activities (Clause 4, Article 32 of the Law No. 14-FZ). From the content of Art. 40 of Law No. 14-FZ, it follows that the sole executive body of a company (president, etc.) can be elected both from among its participants and from the circle of outside parties. In any case, an agreement is signed between the company and the person acting as the sole executive body of the company (Law No. 14-FZ does not indicate that it is signed, although this is quite logical).

At the same time, in a company consisting of one member, decisions on issues falling within the competence of the general meeting of members of the company shall be taken by its sole participant individually and executed in writing (Article 39 of Law No. 14-FZ).

Here is a sample of the decision of the sole founder on assuming the post of director.

On taking office

Based on the decision of the sole founder of Turservice LLC dated July 10, 2017 No. 1 I, Somov Dmitry Mikhailovich (passport 2213 No. 020406, issued 02.10.2014 ATS in the Zavolzhsky District of Tver, registered at the address: Tver, Kalinin St., d. 15, apt. 21), I have begun to act as Director since July 10, 2017.

Due to the lack of the position of an accountant (chief accountant) in the state, I temporarily assume the responsibility for 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 Ch. 43 of the Labor Code of the Russian Federation. According to the definition contained in Art. 273 of the Labor Code of the Russian Federation, the head of the organization is an individual who, in accordance with the Labor Code of the Russian Federation, other laws and other regulatory legal acts, constituent documents of the organization and its local regulatory acts, manages the organization, including the functions of its sole executive body. Legal relations of the director with the organization are made out by the labor contract, and Art. 275 of the Labor Code of the Russian Federation establishes the features 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 sole participants (founders) of organizations, members of organizations, owners of their property (part 2 of article 273 of the Labor Code of the Russian Federation). Therefore, the question arises: is there a place for labor relations in the case considered in the article and should they be formalized 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 - relations based on an agreement between the employee and the employer on the personal performance of the employee for a paid labor function (work in accordance with the staffing list, profession, specialty with qualifications; a specific type of work assigned to the employee) in the interests, under the supervision and control of of the employer, subordination of the employee to the rules of the internal labor schedule when the employer provides working conditions provided for by labor legislation and other regulatory rights ovymi acts containing norms of labor law, collective agreements, contracts, local normative acts, labor 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 citation: the emergence of an employment relationship is always accompanied by the conclusion of an employment contract (agreement between the employee and the employer).

Interpretation of the law

Next, we present two polar points of view with the corresponding argument regarding whether an employment relationship (whether labor contracts are concluded) between the organization and its director, who is also the sole founder of the organization.

* Retained by the Decision of the Supreme Arbitration Court of the Russian Federation dated 10.28.2009 No. ВАС-13626/09.

** By the decision of the Supreme Arbitration Court of the Russian Federation dated 06.06.2009 No. 6597/09, the case was refused to be submitted to the Presidium of the Supreme Arbitration Court for review by way of supervision.

There is also a third approach (the most profitable for replenishing the budget) - there are labor relations, but no labor contracts. It can be seen in the letters of the Ministry of Finance, which, although it is not entitled to give explanations on the application of labor legislation, nevertheless spoke out on the issue that interests us. So, in the Letter dated 03/15/2016 No. 03-11-11 / 14234 with reference to the Determination of the Supreme Arbitration Court of the Russian Federation dated 05.06.2009 No. ВАС-6362/09 it says: " If the head of the organization is its sole founder, that is, one of the parties to the labor contract is absent, then the labor contract cannot be concluded. ... labor relations with the director as with the employee are drawn up not by an employment contract, but by the decision of a sole participant».

Recognition of payment expenses to the founding director

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

As a general rule, expenses related to 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 “income minus expenses” object (Clause 6, Clause 1, Article 346.16 of the Tax Code).

However, remuneration accrued to both employees and managers, but not provided for by the labor contract, does not reduce taxable profit (paragraph 21 of article 270 of the Tax Code of the Russian Federation). Therefore, in order to take into account the costs of payments in favor of the director - the sole founder, they must be provided for by the labor agreement (see Letter of the RF Ministry of Finance dated 03.10.2015 No. 03-03-06 / 1/58416).

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, which is its sole founder, cannot himself pay and pay wages. Consequently, the organization is not entitled to take into account for tax purposes the expenses incurred by the director in the form of payment of wages to himself (see Letter of the RF Ministry of Finance dated 02.19.2015 No. 03-11-06 / 2/7790). The agency applies this conclusion to both income tax payers and “simplistic” taxpayers.

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, labor relations arise regardless of the execution of a written labor contract, the contract itself is still considered concluded. Its paper version should be drawn up no later than three business days from the day the employee was actually admitted to work (part 2 of article 67 of the Labor Code of the Russian Federation).

When there is a real labor relationship, and an employment contract is considered concluded even before the preparation of the written form, the grounds for applying paragraph 21 of Art. 270 of the Tax Code of the Russian Federation no.

Immediately make a reservation that this approach can cause complaints from the regulatory authorities and its legitimacy will have to be defended in court.

To document the fact that the cost of paying salaries was paid to the director, the organization may submit a decision on the appointment of the sole founder to the position of head of the organization, as well as pay slip, payroll, expense cash warrants that indicate the payment of salary.

The fact that the availability of these documents will strengthen their position in court is confirmed by arbitration practice. So, the judges recognized the existence of an employment relationship, and therefore, the legality of the expenses incurred in the presence of:

the staffing table, payroll leaflets for wages (Decision of the FAS SZO of October 11, 2007 No. A42-5270 / 2006);

certificates of salary, cash vouchers, payroll (Decision of the FAS ВСО of 10.10.2007 No. А33-15270 / 06-Ф02-6504 / 07).

, that is, believes that there is no labor relationship with the director - the sole founder, payments in his favor clearly fall under the provisions of paragraph 21 of Art. 270 of the Tax Code of the Russian Federation and cannot be accepted for tax purposes.

Calculation of insurance premiums on payments to the founding director

If your organization adheres to option 1 , payments in favor of the head of the organization, which is the sole participant (founder), are subject to insurance contributions.

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

Currently, the object of insurance contributions 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, in the framework of labor relations.

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

With regard to judicial practice, the arbitrators have more than once recognized the legitimacy of payment to the director - the sole founder of social benefits (FAS ZSO resolution dated 03.15.2011 in case No. A45-16926 / 2010, dated 09.11.2010 in case No. A45-6721 / 2010, dated 28.09. 2010 in case No. A45-3921 / 2010, FAS DVO dated 10/19/2010 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 labor, then the director should not be charged insurance premiums, but the likelihood of claims from the tax authorities is very high.

There are also court decisions, in particular, the FAS ZCO Decree of March 15, 2011 in case No. A45-16926 / 2010, where, after assessing the specific circumstances of the case, the judges refuse to grant benefits to the founding director due to the lack of economic necessity to appoint him to the post (no activity , the duties of the director are not actually fulfilled).

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

The rules of clause 2.2 of article 11 of Federal Law No. 27-ФЗ, it is established that the policyholder submits monthly information on each insured person working with him in the form of SZV-M approved by Resolution of the PFR Management Board dated 02.02.2016 No. 83p (hereinafter - Resolution No. 83p).

If your organization adheres to option 1 , recognizes the relationship with the founding director as labor and has an employment contract with him, the information about the director is clearly subject to reporting in the form of SZV-M (paragraph 2.2, 4 of article 11 of Federal Law No. 27-FZ, paragraph 1 of Resolution No. 83p, appendix to Resolution No. 83p, clause 1 of Article 7 of Federal Law No. 167-FZ).

According to the clarifications given in the letters of the Ministry of Labor of the Russian Federation dated 07.07.2016 No. 21-3 / 10 / В-4587, PFR dated 07/13/2016 No. LCH-08-26 / 9856, information in the form of SZV-M is submitted in relation to the insured persons working under a labor or civil law contract, including in relation to the head of the organization, which is its sole founder (participant). In the event that an employment contract has been concluded with these persons, these reports are presented to all working insured persons, regardless of the actual payment of payments and other remuneration, as well as the payment of insurance premiums.

If the organization adheres to option 2   and denying the existence of an employment relationship with the founding director, it is logical not to include information about him in the form of SZV-M. 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 no contract has been concluded (labor, civil law), the mentioned article is not mentioned as an insured person. Rules of Art. 8, paragraph 2.2, 4 of art. 11 of Federal Law No. 27-FZ stipulates that information on the SZV-M form is submitted only in relation to the insured persons working with the insured.

But we must remember that the Ministry of Labor and the FIU have a different point of view on this matter. As mentioned above, the Ministry of Labor in the Letter dated 05.05.2014 No. 17-3 / OOG-330 named the heads of the organization, the sole participants (founders), insured without additional reservation to conclude an employment or civil law contract. As for the FIU, in the Letter dated 06.05.2016 No. 08-22 / 6356 he also referred the head - the sole founder to the insured persons in respect of whom these statements are presented.

We express our own position regarding labor relations and employment contracts with the director - the sole founder. It is clear that a universal answer to the question whether or not an employment relationship arises with the director who is the owner of the organization does not exist. In our opinion, it all depends on the specific circumstances.

Director's job is not fiction

When the sole founder of the company, having appointed himself to the post of director, really performs the corresponding labor function - manages the current activities of the organization, complies with the work schedule, makes deals, makes business trips, holds negotiations, etc., deny the existence of an employment relationship between him and the company not allowed. As for the execution of an employment contract, of course, signing it by one person both on the side of the employer and on the side of the employee does not look right. However, this point is more likely to clearly illustrate the extraordinary nature of the situation under consideration, rather than indicates the impossibility of concluding a contract in principle. In our opinion, an employment contract should be drawn up and, moreover, a very responsible approach to describing the responsibilities of the leader (bringing them as close as possible to the tasks actually performed), the amount of remuneration to the manager, and various surcharges. Properly drafted by the essence of the contract it will be 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 charge insurance premiums and provide information about the director in the form of SZV-M.

The post of director is formal

If the sole founder of the company, having appointed himself to the post of director, actually does not fulfill his functions (this is especially noticeable when the organization does not carry out activities at all (there is no movement on settlement accounts, there are no concluded contracts, there are no jobs, etc.)), then even when creating the necessary workflow (drawing up an employment contract and other personnel documentation), the existence of an employment relationship between him and the company should be called into question. Most likely, when checking by the tax authority, the amounts accrued to such a director of wages will not be accepted for tax purposes. In turn, inspectors will certainly require payment of insurance premiums and reporting to the FIU. The wording of laws facilitates these actions. For a similar situation, our recommendation is as follows. The founder needs to confine himself to the decision to assume the duties of the director of the company. An employment contract does not need to be executed, nor does it recognize the existence of an employment relationship between the company and the director. Then non-accrual of wages in favor of the director will be quite reasonable and will not create disagreements with the tax authority and the FIU.

Today there is no complete clarity on the issue of registration of labor relations with the director - the sole founder. The courts recognize the relationship that arose as a result of the appointment by the decision of the sole owner, labor. This solution allows you to manage the 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 the organization to recognize payments to the director when calculating taxes. The calculation of insurance premiums and reporting to the FIU also depends on the recognition of relations with the director as labor relations, and the director himself as an insured person.