Rules for concluding a contract for paid services with an individual

Types of civil contracts between legal entities and individuals

Civil contracts between organizations and individuals most often arise when it is impossible or impractical to conclude a fixed-term employment contract (see Article 59 of the Labor Code of the Russian Federation).

In practice, the following types of civil contracts with an individual are most often encountered, differing in their own regulation:

• construction agreement (Chapter 37 of the Civil Code of the Russian Federation);
• contract for paid services (Chapter 39 of the Civil Code of the Russian Federation);
• rental agreement for a vehicle with a crew (§ 3, Chapter 34 of the Civil Code of the Russian Federation).

Any type of intermediary agreement (agency, etc.), purchase and sale agreement and others can also be concluded between a citizen and an organization, but they are almost never a substitute for an employment contract.

Taxation nuances: individuals

When concluding an agreement between an organization and an individual, the company must withhold personal income tax of 13% of the payment amount for the work performed and transfer it to the budget (Letter of the Ministry of Finance dated 03/09/2019 No. 03-04-05/12891).

For example, the amount of remuneration under the contract was 20,000 rubles. The customer withheld 13% - 2,600 rubles. and paid the contractor 17,400 rubles.

To the point. Independent calculation of income tax from salary.

Standard tax deductions also apply in the case of GPA. The contractor with whom the GPC agreement has been concluded must write an application addressed to the head of the company to provide him with the required benefits in accordance with Art. 218 of the Tax Code of the Russian Federation and provide receipts for expenses incurred. For example, this could be a deduction for the purchase of real estate, tuition fees, expenses for maintaining dependents, or receiving medical services.

With insurance premiums in the case of GPD, the situation is as follows:

• Contributions for compulsory pension and health insurance are calculated in the general manner, as in the case of an employment contract (clause 1 of Article 420 of the Tax Code of the Russian Federation).
• For the period of temporary disability and maternity (VNiM) when concluding the GPA, contributions for payments are not accrued (clause 2, clause 3, article 422 of the Tax Code of the Russian Federation).
• Accident insurance is provided only if it is provided for by the terms of the contract (Clause 1, Article 5 of Law No. 125-FZ of July 24, 1998).

Contributions to insurance funds are accrued and paid only upon signing a contract and for the provision of paid services. If we are talking about concluding a lease transaction or a cash loan, then such payments are not accrued and are not made (clause 4 of Article 420 of the Tax Code of the Russian Federation). For “mixed” contracts, in terms of remuneration, the amount should be divided into two lines - taxable and non-taxable.

Service Agreements and Contract Agreements: Key Differences

When drawing up contracts of this type, one should fully follow the norms of the relevant chapters of the Civil Code. According to Art. 779 of the Civil Code of the Russian Federation, a contract with an individual for the provision of services can be concluded for various types of activities - from consulting to cleaning services, with the exception of those regulated by special norms of the Civil Code of the Russian Federation, for example, transportation.

Among the main differences between a contract and a service contract are:

-The result of work transferred under a contract agreement must be in tangible form.

-The contractor is obliged to provide services independently; the contractor has the right to involve subcontractors in performing the work.

-GPA for the provision of services can be terminated at the will of one of the parties, a contract agreement - only in the presence of certain circumstances (Articles 709, 719, 745 of the Civil Code of the Russian Federation). At the same time, according to Art. 782 of the Civil Code of the Russian Federation, to terminate a contract for the provision of services for a fee, it is enough to send a simple notification to the customer, subject to payment only of the expenses incurred (see the resolution of the 8th AAS dated July 18, 2017 in case No. A270-14403/2014).

Prerequisites

The GPC agreement is characterized by freedom in establishing its conditions (Article 421 of the Civil Code of the Russian Federation). A properly drafted agreement reflecting all the necessary nuances will ensure that the interests of both parties are respected. Such an agreement will give confidence in the protection of the rights of both the customer and the contractor when carrying out business activities.

The GPA is drawn up in writing and must contain:

• document name, number, date;
• full details of the contracting parties;
• subject - what is agreed upon and what the “mercenary” must do for the customer, the amount of work and its quality;
• conditions for implementation - location, provision of source material, tools;
• contract value, form and terms of payment;
• the amount of personal income tax withheld if one of the parties is a tax agent for the other;
• deadline for carrying out and completing the work;
• order acceptance procedure;
• liability for failure to fulfill the terms of the agreement, the procedure for changing them;
• signatures of both parties and seals.

The obligations of the customer and the contractor under the GPA, which they bear to each other for the proper fulfillment of the terms of the agreement, are regulated by Chapter 25 of the Civil Code of the Russian Federation, paragraph 1 of Art. 393 Civil Code of the Russian Federation.

A sample civil law agreement between an LLC and an individual for 2020 can be downloaded here.

How to avoid recognition of GPA as an employment contract

There is a specific list of employer errors developed in practice by judicial and regulatory authorities when concluding a civil contract with an individual , which indicate the labor nature of the relationship (see letter of the Federal Tax Service of Russia for Moscow dated December 25, 2007 No. 21-11 / [email protected] , determination of the RF Armed Forces dated 02/05/2018 No. 34-KG17-10):

1. Establishing a specific job function for an employee. For example, constant office cleaning is a labor function, as opposed to a one-time contract for cleaning services.
2. Payment for the labor process, not a specific result. During general cleaning of the workshop, the result of which is accepted according to the act, the result is paid; in the case of payment of remuneration for daily cleaning, payment for the process takes place.
3. Ensuring appropriate working conditions. Thus, the fact that an organization purchased detergents for cleaning according to the GPA without reflecting the process of allocating the costs of their acquisition in the GPA agreement can be interpreted in favor of the labor nature of the relationship.
4. Providing social insurance.
5. Fixation of the contractor’s obligation to comply with internal labor regulations and job descriptions.

Civil law or employment contract?

“Personnel officer. Personnel records management", 2007, N 1

Civil law or employment contract?

Possible benefits

A civil contract (CLA) is definitely more profitable than an employment contract. It is not without reason that employers strive to enter into the first one as a successful alternative to onerous labor contracts. After all, an employment contract brings with it a depressing tail of responsibilities for the employer:

— provide work or pay for downtime;

— provide paid leave after six months or pay compensation upon dismissal;

- pay sick leave;

- pay wages on time;

- terminate the contract only on the grounds provided for by the Labor Code of the Russian Federation.

And the GPA does not entail such troubles. It also has small fiscal advantages. Insurance premiums for compulsory insurance against industrial accidents and occupational diseases are not paid from remuneration under the GPA (unless the obligation to charge them is expressly stipulated by the terms of the contract). These remunerations do not need to be charged a single social tax in the part that is paid to the Social Insurance Fund of the Russian Federation.

Possible liability

Probably, reading this article, employers already wanted to “camouflage” all their employees’ employment contracts under convenient civil law ones. But take your time. We have the Russian Code of Administrative Offences. It establishes liability for violation of labor legislation in the form of a fine ranging from 5 to 50 minimum wages for each violation <1>. This sanction will certainly be applied to the employer if the labor inspectorate or court recognizes all of its GPA as ordinary employment contracts. Having identified these facts, the labor inspectorate will demand that the employer restore the violated rights of employees. For example, you will need to pay vacation pay, travel allowance, sick pay, etc.

———————————

<1> Changing the amount of the fine does not eliminate liability.

If a significant portion of the organization’s permanent employees are “contractors,” specialists from the Federal Social Insurance Fund of the Russian Federation may be involved in the inspection. In this case, all GPAs over a three-year period will be checked. If a veiled labor relationship is discovered, arrears and penalties for insurance premiums for insurance against industrial accidents and occupational diseases will be collected from the organization. In addition, the materials will be transferred to the tax office so that it can collect arrears and penalties under the unified social tax received by the Social Insurance Fund.

Further. The employer risks that his GPA with the employee will be declared invalid if the activity entrusted to the contractor requires mandatory licensing or certification. Often such tragedies happen to insurance companies, construction and transport organizations. Some organizations that employ foreign citizens (including citizens of the CIS) enter into a GPA with them, thereby trying to avoid obtaining the necessary permits from the migration authorities. However, these organizations do not take one detail into account. Even after concluding a GPA, the organization must obtain a permit to attract foreign labor and an individual work permit for a foreigner. This is stated in Art. 13 of the Federal Law of July 25, 2002 N 115-FZ “On the legal status of foreign citizens in the Russian Federation.” And recently, the responsibility of the employer in this area has only increased.

Liability is also possible for the employee. For example, an employee entered into a GPA and from month to month, that is, systematically, received income from the enterprise’s cash desk from the provision of certain services or performance of work. There are all the signs of illegal (without state registration) business activity with all the ensuing consequences. In this case, the employee faces administrative (under Articles 14.1, 15.6, 23.1, 28.3 of the Code of Administrative Offenses of the Russian Federation) and even criminal (under Article 171 of the Criminal Code of the Russian Federation) liability. In addition, the tax inspectorate may present its claims to him. After all, the concept of an individual entrepreneur used in tax legislation is broader than the term “entrepreneur without the formation of a legal entity” (PBOYUL) used in civil law. Article 11 of the Tax Code of the Russian Federation establishes that individuals carrying out entrepreneurial activities, but not registered as individual entrepreneurs, nevertheless bear all their responsibilities. They must submit tax returns and pay all taxes levied on entrepreneurs.

How to correctly conclude a GPA instead of an employment contract

Do not rush to completely abandon the conclusion of the GPA and do not rush to feverishly include all workers entering the office into the staffing table. In reality, there are cases when concluding a GPA is possible. You just need to know how exactly the two contracts in question differ. And based on this, decide whether or not it is worth concluding a GPA.

Differences between employment contracts and GPA

Similar relationships are often formalized by an employment contract or GPAs such as fee-based service agreements, contract agreements or agency agreements. As follows from Art. 15 of the Labor Code of the Russian Federation, labor relations differ from civil law ones in that the former are characterized by the employee’s subordination to labor regulations, the performance of the internal labor function of the organization (a labor function is understood as any work in a certain specialty, qualification, position). Carrying out work according to the GPD involves obtaining some specific result (performing a specific job), and not performing a labor function. Also, labor relations are characterized by monthly payment and personal performance of work by the employee. In civil legal relations, personal participation is not necessary, for example, the involvement of a subcontractor. Civil relations are, as a rule, one-time, custom-made, and labor relations are of an ongoing nature.

If the relationship connecting your organization and a citizen can be expressed in the formulations of the right column, then most likely there will be no problems with the labor and tax inspectorates - “safe formulations”.

Formulations that are sure to cause

inspector has doubts

But if the GPD contains phrases like: “The Customer pays the Contractor a monthly amount of _______”, “The Contractor undertakes to perform the work specified in clause _______ of this agreement, on the territory of the Customer’s enterprise, daily from 9.00 to 18.00”, “The Contractor undertakes to perform the work personally , without the involvement of third parties”, “The Customer has the right to check the progress of work at any time, and the Contractor undertakes to carry out the Customer’s orders regarding the execution of the work during the period of validity of this contract” - such wording will cause close attention of controlling persons. And God forbid that the Contractor (Contractor) should be called an Employee in the GPD.

So, if the issue of transferring some employees to civil law relations is being decided (let’s say they are not busy at work every day, they are involved occasionally in some hot work or as orders appear), then:

1) determine whether your relationship with the employee can be classified as civil;

2) if yes, then select the safest wording of the contract, indicating that it is clearly not a labor contract and contains all the features directly opposite to those named in Art. 15 Labor Code of the Russian Federation.

Of course, if in doubt, it is best to consult a specialist in this field. It’s better for a lawyer to develop a competent form of contract once than for you to pay fines to all authorities later.

The practice of conducting personnel audits shows that in most organizations, GPAs are, in fact, employment contracts. Most organizations actually had GPAs, but they were also drawn up incorrectly.

Be careful.

S.V.Livena

Signed for seal

25.12.2006

civil contract with the driver civil contract for the performance of work

Adverse consequences of recognizing GPA as an employment contract

Failure to comply with these conditions may result in adverse consequences. Most often they become:

• additional accrual of contributions to the Social Insurance Fund based on the results of a tax audit (resolution of the AS VSO dated October 7, 2015 in case No. A33-15861/2014);
• the obligation to compensate the employee for payments due to him related to unprovided vacations (appeal ruling of the Magadan Regional Court dated June 21, 2016 in case No. 2-1541/2016, 33-525/2016);
• compensation for moral damage to an employee under Art. 237 of the Labor Code of the Russian Federation (see, for example, the appeal ruling of the Krasnoyarsk Regional Court dated June 21, 2017 in case No. 33-7997/2017);
• administrative liability under clause 4 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation.

How to conclude a contract with an employee

The GPA is concluded in writing between the customer and the contractor. An individual entrepreneur’s contract with an employee based on a standard form, based on the characteristics of the services ordered.

Download a Sample Individual Entrepreneur Agreement with an Employee (25.8 KiB, 2,103 hits)

The sequence of how to register an employee under a civil contract is as follows:

1. Indicate the date of conclusion and the name of the document.
2. Enter the details of the customer.
3. Describe the nature of the proposed work.
4. The amount of remuneration is fixed.
5. Enter information about the performers.

At the end of the document, the parties put signatures, and upon completion of the work, the acceptance certificate is signed.

For the period of validity of the document, the performer is recognized as part of the workforce, however, such employment under a civil law contract is not considered personnel records management and is not recorded according to labor law.

Sample GPA with an individual

The drafter of the agreement must strive not only to ensure that it meets the requirements for compliance with the civil law nature of the agreement. In order for the contract not to be reclassified as an employment contract, it is necessary to take into account that the following points must be present in the terms of the agreement for the provision of paid services:

• specific terms for the provision of services or performance of work, otherwise, in accordance with the norms of letter No. 21-11 / [email protected], the fact of payment for the labor process, and not its result, may be recognized;
• the procedure for accepting the results (transfer and acceptance certificate), which will prove the act of providing services (see the decision of the Autonomous Court of the Belgorod Region dated 07/08/2017 in case No. A08-6469/2016, the resolution of the FAS ZSO dated 10/01/2009 in case No. A70-6574 /2008);
• the procedure for filing complaints about poor-quality performance of a service (you can read about the procedure for preparing it in the article “Claim under a service agreement - sample”);
• payment procedure tied to obtaining a specific result, and not dependent on other events and circumstances (Resolution of the Constitutional Court of the Russian Federation of January 23, 2007 No. 1-P).

A sample civil law agreement with an individual for the provision of services can be downloaded from the link: Civil legal agreement for the provision of services with an individual - sample.

A sample of a civil contract with an individual can be downloaded from the link: Civil contract with an individual.

Registration procedure

The conclusion of an agreement for the provision of services is controlled by Russian legislation. Phys. a person can provide services to individuals and legal entities, and everything depends on the party; there are a number of differences. Initially, it’s worth figuring out what the differences are.

IMPORTANT! Concluding a service agreement between individuals seems to be a fairly simple process, although there are a number of complex issues.

For example, the form of the agreement:

• oral. If the amount is small and the volume of work is small, then it will be appropriate. For example, manicure, apartment cleaning, beauty salon services, haircut, and so on;
• written. This form is suitable for any agreement, and if the contract amount exceeds ten minimum wages, it is considered mandatory. There is no clear structure for agreements, but for each type of agreement there are personal recommendations: what clauses should be included, and so on;
• notary certified. Such a form can become mandatory only if the person entering into the agreement is unable to sign it with his own hand due to illness or the presence of a certain defect. In this option, the representative signs, indicating the official reason, and the notary certifies the agreement.

Although in some situations, notarization of contracts is mandatory . For example, a rent agreement, a mortgage agreement, a will.

What to pay attention to:

1. the contractor periodically performs this activity, he is obliged to officially register himself as an individual entrepreneur;
2. When signing an agreement with companies, you need to check the credentials of the citizen who signs it. In other options, the title documentation establishes restrictions on the powers of management.

For example, the charter of a legal entity. person establishes that an agreement worth more than 2 million rubles is drawn up only with the consent of the founders of the legal entity. faces. It turns out that this kind of transaction is concluded only upon receipt of the minutes of the meeting of founders:

• the legislation does not make it mandatory to allocate the amount of tax, although in order to avoid difficulties with the tax service, it is necessary to indicate in the agreement after the amount of the transaction “ VAT is not subject to ”;
• if it is necessary to involve other persons for execution , then this must be stated in the agreement;
• fulfillment of the agreement is confirmed by an acceptance certificate for completed work , which is signed by all parties.

Standard contract

Are there standard forms for such agreements? As a rule, a standard contract for the provision of services by an individual is developed only for a specific area of ​​activity (transportation, audit services, contracts with teachers, etc.) and is approved by government bodies, large companies or public organizations in order to save time for structural units when drawing up and the conclusion of such agreements.

The Civil Code of Russia defines only the basic requirements for the content of the contract, according to which it must indicate a list of services or works, their cost and the obligation to pay.

There are three main provisions of the law:

1. The contractor works on the instructions of the customer (the initiative to conclude a contract usually comes from the customer).
2. Services are provided in person. That is, the performer directly, using his physical and/or intellectual abilities through personal labor, creates the result. Moreover, the law does not prohibit the involvement of co-executors. For the customer, the most important thing is the result.
3. The customer has the right to withdraw from the contract by reimbursing the contractor for expenses and paying for the work performed. As a rule, contracts stipulate the culpable actions of the contractor or force majeure circumstances, which can serve as grounds for unilateral termination of the contract.

What needs to be included in the contract? Sample contract with individual entrepreneurs for the provision of services

AGREEMENT

1. The Subject of the Agreement

Passport 1234 567890

Agreement

1. The Subject of the Agreement

8.3. In all other respects that are not provided for in the Agreement, the Parties are guided by the current legislation of the Russian Federation.

8.4. All annexes and additions to this agreement, signed by both Parties, are an integral part of it.

8.5. The Agreement is drawn up in two copies having equal legal force, one for each of the Parties.

9. Legal addresses and bank details of the parties

Executor Legal address: Postal address: Taxpayer Identification Number: KPP: Bank: Account/account: Correspondent/account: BIC:

CustomerRegistration: Postal address: Passport series: Number: Issued by: By: Telephone:

10. Signatures of the parties

Performer _________________

Customer_________________