If wages were not paid: reporting composition
Smirnova S.K., practicing accountant, tax consultant, member of the Chamber of Tax Advisors
A newly formed company usually does not conduct financial and economic activities for some time, but already has at least one employee on its staff - the general director. Since there is no income, it is essentially impossible to calculate and pay wages. What to report?
GOOD TO KNOW
The calculation form and the procedure for filling it out were approved by Resolution of the Pension Fund Board of January 16, 2014 No. 2p.
Before August 15, 2014, it is necessary to submit a calculation in the form of RSV-1 for the first half of 2014 to the Pension Fund of the Russian Federation. This is a new form on which we reported for the first quarter of this year for the first time. Therefore, you already know that the new form combines not only the calculation of contributions, but also personalized accounting information. Let us recall that in accordance with Resolution No. 2p, the title page, as well as sections 1 and 2, are necessarily included in the RSV-1 calculation. In accordance with clause 2 of the Procedure for filling out the calculation in the RSV-1 form (Appendix No. 2 to Resolution No. 2p) in the absence of any indicators provided for in the calculation, dashes must be entered in the lines and corresponding columns. These sections of the RSV-1 calculation represent all organizations, regardless of whether wages were accrued at the end of the reporting period or not. Therefore, even if the organization did not carry out financial and economic activities and, as a result, wages and insurance contributions were not accrued, the company is still required to submit a calculation in the RSV-1 form. Since the organizations did not accrue or pay wages, there are no grounds for submitting personalized accounting information (Section 6 of the RSV-1 form). The fact is that section 6 is filled out and submitted to all insured persons only by those payers who, in the reporting period, accrued payments and other remuneration within the framework of labor relations and civil law contracts, as well as payments under author order agreements, publishing license agreements, licensing agreements on granting the right to use works of science, literature, art, including remunerations accrued by rights management organizations on a collective basis in favor of the authors of works under agreements concluded with users, or with whom employment contracts and (or) civil law contracts have been concluded . However, along with the calculation, we recommend that the organization write an information letter to the Pension Fund office indicating the reason for the failure to provide personalized accounting information. In our opinion, such an information letter will help the organization avoid liability for failure to submit personalized accounting information (Article 17 of the Federal Law of April 1, 1996 No. 27-FZ). Despite the fact that now only calculations are submitted in the RSV-1 form, the liability provided for by Law No. 27-FZ, in particular clause 17, has not been canceled.
IMPORTANT IN WORK
The obligation to submit reports is not related to the fact of conducting business (payroll), but to whether or not the organization is a payer of insurance premiums.
Sample letter to the Pension Fund.
Progress LLC 400064, Volgograd, st. Leningradskaya, 15 INN 3415213678, KPP 344301001 OJSC "Sberbank of Russia" Volga region branch account 40702836562654588920 account 30101810500000000653 BIC 044030653 Ref. No. 01 dated April 14, 2014
To the Office of the Pension Fund of the Russian Federation in Volgograd
Registration number: 034-018-013503
We hereby inform you that in the first half of 2014, no financial and economic activities were carried out at Progress LLC, wages were not accrued or paid.
General Director I V A N O V S. P. Ivanov
M.P.
Also, in the absence of financial and economic activity, policyholders must submit a calculation in accordance with FSS Form-4, consisting of a title page, table 1, table 3, table 6, table 7, table 10 (clause 2 of the Procedure for filling out FSS Form-4 ).
Due to the lack of indicators provided for in the calculation form, dashes are entered in the lines and corresponding columns. Tables 2, 3.1, 4, 4.1, 4.2, 4.3, 5, 8, 9 of FSS Form-4, in the absence of the necessary indicators, are not filled out or submitted by policyholders.
As for personal income tax reporting, as you know, it must be submitted based on the results of the year, i.e. for 2014 we are required to report on form 2-NDFL by April 1, 2020. Therefore, the situation in question can only occur if wages were not accrued or paid during the year.
However, unlike reporting to the Pension Fund and the Social Insurance Fund, the submission of certificates in form 2-NDFL with zero indicators is not provided for by law, since in this case the organization is not recognized as a tax agent (clause 1 of Article 226 of the Tax Code of the Russian Federation, clause 2 of Article 230 Tax Code of the Russian Federation). At the same time, in our opinion, it is more expedient to submit a similar information letter to the tax authority in order to avoid penalties for failure to submit reports. A similar position is taken by the Federal Tax Service of Russia in letter dated November 8, 2010 No. ШС-37-3/14851.
GOOD TO KNOW
There is a high probability that companies will have to submit personal income tax reports once a quarter. The Ministry of Finance has already prepared a draft federal law with amendments to the Tax Code. According to the document, a calculation of personal income tax amounts calculated and withheld by the tax agent must be submitted after the first quarter, half a year, nine months and a year. The deadline for submission is the last day of the month following the reporting period.
Position of the Ministry of Finance: there are labor relations, but there is no employment contract
And in 2020, the Russian Ministry of Finance became involved in resolving the issue of whether the director, the sole founder, needs an employment contract. In a letter dated 03/15/16 No. 03-11-11/14234 with reference to a fairly old court decision (determined by the Supreme Arbitration Court of the Russian Federation dated 06/05/09 No. 6362/09), financial department specialists indicated that labor relations with the director - the sole founder - still exist . But they are formalized not by an employment contract, but by the decision of a single participant. This means that the manager is an employee of the organization and needs to be paid a salary. Thus, the issue of insurance premiums from payments to the director was resolved in favor of the budget, and at the same time the Ministry of Finance did not come into conflict with Rostrud (also see “The Ministry of Finance announced how to formalize labor relations with a director who is also the sole founder of the organization”).
But this approach, for all its apparent success, does not answer the main question: will a “manager without a contract” be an insured person? After all, the laws mentioned above clearly state that in order to fall into this category, a manager must have an employment contract. In addition, the conclusion of the Ministry of Finance directly contradicts the article of the Labor Code of the Russian Federation, which states that labor relations arise only on the basis of an employment contract. The only exception to this rule is the actual admission of the employee to work with the knowledge or on behalf of the employer (it is clear that this exception does not apply to the situation under consideration).
Thus, we have to admit that the approach outlined by the Ministry of Finance cannot be applied in practice, since it contradicts the Labor Code. In addition, guided by the position of the Ministry of Finance, it is impossible to answer the question of whether it is necessary to charge insurance premiums on salaries that are paid to the director not on the basis of an employment contract. Finally, this approach calls into question the legality of including payments to a “manager without an employment contract” as expenses under the OSNO, under the simplified tax system or under the unified agricultural tax. Indeed, on the basis of Article 255 of the Tax Code of the Russian Federation, labor costs include accruals provided for in the employment contract.
In passing, we note that the definition of the Supreme Arbitration Court of the Russian Federation, to which the authors of the commented letter refer, was devoted to the question of whether the founder-manager has the right to social benefits. And this judicial act was adopted even before the approval of the above-mentioned amendments to the laws on social insurance. That is, the court’s conclusion, which officials refer to, is actually taken out of context. Therefore, it cannot be said with confidence that at present the arbitrators will support the approach proposed by the Ministry of Finance if a dispute arises about the right not to draw up an employment contract with the director - the sole founder.
What information must be submitted?
It is necessary to submit all information to the Pension Fund of the Russian Federation for the following insured persons: (click to expand)
- Working under an employment contract;
- The only founders who are also directors in this organization;
- Those working under the GPD (who perform work and provide services to the company);
- Performing copyright orders and some other categories of persons who are listed in the Federal Law with number 27 in Article 11.
The SZV-M reporting must indicate all these persons, for each of which the last name, first name, patronymic, SNILS and TIN must be provided. SZV-STAZH indicates the periods of work and the code for calculating the insurance period for each employee.
Fines for violation
Ignorance of the law does not relieve the director and the legal entity as a whole from liability. If you do not know whether you need to submit reports based on personal accounting information, call the hotline and ask a fund specialist, and also ask on what basis the specialist provides this or that answer. You will definitely be given the number of the law, letter or article of the code indicating the presence of one or another obligation of the taxpayer and the employer. Currently, the fine for failure to provide information is 500 rubles for each case and for each employee, therefore, without submitting reports every month, the organization increases the amount of debt to the fund.
Notification to Personnel and Creditors
Publications in Vestnik. “It is not enough to notify creditors by law - the algorithm for how to liquidate an LLC if no activity was carried out requires sending an official letter about the decision to each creditor.
The letter is drawn up in any form, but indicating the start date of liquidation and the deadline for submitting claims.
Attention: the liquidator must have confirmation that the notifications were indeed sent to all creditors. To ensure this confirmation, notices must be sent by courier or registered mail.
Hired employees of an LLC who have not been dismissed earlier are notified of the impending termination of their employment relationship the same 2 months before the issuance of the corresponding order. Each employee is called to the office of the person entrusted with this mission and receives a written notification against signature.
Important: the employment service must also be notified of the dismissal of personnel. If you plan to lay off 15 or more people at the same time, this is a massive layoff; in this case, you need to notify the employment center 3 months before the layoff.
Exception method: a contract is needed, but it cannot be civil law
So how do you formalize your relationship with a manager who is also the sole founder of the organization? In our opinion, in the current situation of legal uncertainty, it is possible (and necessary) to resolve this issue using the exclusion method.
Let us recall that relations regarding the management of an LLC are regulated by a special Federal Law dated 02/08/98 No. 14-FZ “On Limited Liability Companies” (hereinafter referred to as the LLC Law). By virtue of paragraphs 1 and 4 of Article 40 of this law, the company’s relations with the sole executive body (that is, the director) are in any case formalized by an agreement. This law does not establish any exceptions for the manager - the sole participant of the LLC.
At the same time, from the analysis of the Law on LLC it follows that this agreement can be civil if it is concluded with a professional manager in the manner prescribed by Article 42 of the Law on LLC. Obviously, in this case, the person claiming to be the manager (that is, in our case, the sole founder) will carry out entrepreneurial activities in managing the LLC. This means that he will have to register as an individual entrepreneur (subclause 2, clause 2.1, article 32 of the LLC Law).
So, a civil contract is not suitable in the situation under consideration. We exclude him. And as a result we get the following. First, you need to conclude an agreement with the manager. Secondly, this agreement cannot be civil law. Thus, there is only one option left for formalizing relations with the director of the LLC - concluding an employment contract with him. The legislation does not yet provide for any other option.
Legislative regulation of the issue
Legislative regulation of the issue is carried out by the following legal documents:
- Federal Law No. 167 of December 15, 2001, or rather article seven of this law, which states which persons are insured in pension insurance;
- Federal Law 27 of April 1, 1996, which describes personalized accounting and Article 11 of which lists the persons for whom information is submitted;
- Letter of the Ministry of Labor and Social Protection with number 17-4-10-B-1846 dated March 16, 2020, which indicates the obligation to submit reports and other acts, including the Labor and Tax Codes of the Russian Federation.
Economic activities of LLC
Enterprises do not always have the opportunity to carry out permanent economic activities, and their liquidation is a rather lengthy procedure and is associated with tax audits. Therefore, quite often taxpayers have a question: how to “freeze” an enterprise while minimizing the tax burden and reporting. In this situation, the owners of enterprises resort to dismissing all employees, but there must be someone left who will manage the enterprise, that is, a person who will be responsible for the enterprise’s compliance with legal requirements and representation before government agencies. It should be noted here that the director or other hired person does not necessarily manage the enterprise. Economic Code Part. From this there are two possible situations regarding the documentation of enterprise management:.
“Freezing” of financial and economic transactions
Usually, when stopping work, a company tries to get rid of unnecessary things: goods in warehouses, materials, equipment (if any). This must be done carefully, not forgetting that the size of net assets should not be lower than the minimum authorized capital - this may serve as a basis for liquidation. You should act especially carefully if the company was engaged in licensing activities.
The actual absence of economic activity is characterized by such signs as:
- absence of any transactions on company accounts;
- lack of a basis for calculating all types of taxes.
In order to avoid accusations of “fictitious” suspension (if some unexpected turnover appears on the accounts), it is advisable to send a notification letter to the bank. But the accounts must remain valid.
As for taxes, insurance contributions to the Pension Fund, FFOMS, Social Insurance Fund, it is better to fully repay all payments for the reporting period. During “inaction”, it is necessary to regularly submit zero reports in order to avoid penalties and interest.
Attention!
If the company carried out certain types of activities for which it paid UTII, then it is necessary to deregister. Payment of taxes and insurance premiums under this system depends on the fact of registration as a payer, even if there is no income.
Do I need to notify the fiscal authorities about the termination of work? Not necessary, but it's better to do it. A warning letter will eliminate unnecessary curiosity and routine checks.
Arguments in favor of charging insurance premiums, given by UPFR specialists:
- The current labor legislation does not provide for any exceptions to the established rule of paying wages at least every half month, and does not contain legal provisions allowing not to accrue wages to an employee.
Each employee with whom an employment contract has been concluded has the right to payment of wages, and the Labor Code of the Russian Federation does not provide for the waiver of this right. Any refusal of wages by an employee is invalid, and the employer’s decision to not pay wages is illegal.
The court of first instance supported the UPFR specialists, based on the fact that non-calculation and non-payment of wages does not relieve the policyholder from the obligation to calculate insurance premiums.
The appellate court overturned the court's decision and satisfied the company's demands, indicating that the basis for calculating insurance premiums is determined by actual payments made, and not by expected payments.
“To be or not to be” ... an enterprise without a director
Pages: 1. The company does not operate, reports are not submitted. Alexey Petrov. Messages: 2 Points: 1 Registration: Like 0. Such a question.
There is a company that does not conduct any economic activity. For a long time, zero reports were submitted, but now reports are not submitted at all. No further economic activity is planned. Tell me, can tax officials simply close a company without penalties if it fails to submit reports for a long time?
If not, will it be possible to liquidate it in the future by changing the founders and directors and so that fines for failure to submit reports will not have to be paid? Messages: 21 Points: 10 Registration: Tax officials will not close the company.
The company has founders or shareholders, from whom they will ask in full. You can't do without fines. Unless all the co-owners went on the run to escape fines. What's the point? They would have closed the company and all the business. Have reports not been submitted for a long time?
And where are all the leaders? Messages: Points: Registration: Quote Tax officials will not close the company. Quote They really won’t close it, but if the company has no debts on taxes and fees, they will exclude it from the state register.
So that is all! Quote Judging by Alexey's question, there will be debt. At least a fine for late reporting. And there it is not yet known what will come out of the arrears. Probably no one performed reconciliation reports. There is no debt. There is no time to bother with liquidation. The company hangs like ballast. Is exclusion from the state register comparable to liquidation? Quote No debt.
Quote If a company does not submit reports within 12 months, it is excluded from the state register. Own experience. There were no tax arrears. I’m not a lawyer, it’s hard for me to say whether this is the same thing or not. I had this. We created a company. She was without activity for a year. When I took it in for service, they gave me receipts from some courier services that the reporting had been sent. Activity has begun. The company was white and fluffy, albeit with small turnover. Profit, VAT, everything in order And suddenly the annual reports are returned to me.
The basis for exclusion is failure to submit reports within 12 months. I poked my head into my tax office - and your front one is closed - they answered me. I poked my head into it. I got a notice of exclusion. Zahoderka Moderator Messages: Points: Registration: K Active user Messages: Points: Registration:
LLC does not operate: CEO salary
Filing a zero balance is mandatory and a notice of suspension of the LLC’s activities must be sent to the tax office. But regarding the dismissal of the director, I can explain:. Therefore, employees of an LLC that has suspended its activities must either be laid off or fired. If you need more detailed advice or assistance in drawing up documents, please contact me, I will be happy to help.
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Let's say right away that as long as the director is on the staff of the enterprise, the director, like other employees, must receive a salary and refuse it, regardless of what the financial situation of the enterprise may be.
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