According to tax officials, salary commissions provide the effect inspectors need*. Namely: tax revenues from most companies called on the carpet increased. Moreover, tax authorities now compare the level of company salaries not with the minimum wage or subsistence level, but with a higher industry average level. At the same time, some companies do not raise the level of wages, and at the same time, their actions do not raise any complaints from the commission. How exactly it is necessary to act, what explanations to give so that the tax authorities find them acceptable, Anton Slyadnev, deputy head of the tax law and consulting department of the Intelis company, Ph.D., spoke at a seminar dedicated to “gray” salaries and salary commissions. n.

LEGAL MINIMUM

At the beginning of the seminar, the lecturer recalled that tax authorities base their activities on orders and instructions of the Federal Tax Service of Russia. But at the same time, the Labor Code does not indicate such a regulator of labor relations as the salary commission. That is, the commissions themselves, as well as their demands, have no legal force.

Demands to increase wages to the industry average are also illegal. The Labor Code of the Russian Federation (Article 133) has already established a provision on the minimum wage in the Russian Federation. The Labor Code allows for an increase in the minimum wage in a specific entity, but only under certain conditions. Firstly, the level should be uniform across all industries. Secondly, the minimum size is established by a special tripartite commission for regulating social and labor relations of the relevant constituent entity of the Russian Federation (and not the salary commission).

Thus, the law generally requires the employer to pay a minimum of 2,300 rubles. for a fully worked month (Article 1 of Federal Law No. 82-FZ dated June 19, 2000).

If meetings of tripartite commissions have been held in the subject, the minimum wage may be higher (for example, in Moscow 6,100 rubles, established by the Moscow tripartite agreement for 2007 dated December 12, 2006). Moreover, the law gives the company the opportunity to refuse the need to pay increased wages. To do this, it is enough to write a written reasoned refusal to join the agreement to the federal executive body, which carries out the functions of developing state policy and legal regulation in the field of labor (Article 48 of the Labor Code of the Russian Federation).

The lecturer especially emphasized: there is no legal responsibility for paying wages below the industry average. Of course, if the company deems it necessary, it can visit the salary commission. And at the same time, even within the framework of the commission itself, objective arguments can be made in favor of a small salary.

ACCEPTABLE EXPLANATIONS

Anton Slyadnev explained that it is better to prepare all objections in advance. While on the commission, it is difficult to come up with a logical explanation, since all its members are waiting for only one thing - agreement with the claims and an order to increase wages. So, what arguments are taken into account at the commission?

Firstly, tax authorities, pointing out the low level of wages in a particular company, refer to industry average data from the local statistical body. According to the lecturer, the company may well indicate that these data are at least incorrect. They include information about the salaries of large companies (or their subsidiaries), as well as medium and small ones. Accordingly, their data are not comparable. Therefore, it is difficult for a small company to bring salaries to the industry average level.

Secondly, monthly salaries can be set higher than the level required by the commission. However, the work schedule of the company’s employees is set in such a way that the employee does not work out the norm (40 hours a week, Article 91 of the Labor Code of the Russian Federation). Thus, if a shift schedule or part-time work is established for employees, or some of the employees are hired part-time, then the company will not be able to pay the industry average salary.

Thirdly, the composition of employees may differ. For example, the company has many unskilled workers. Naturally, the average salary level for all employees will be small. However, by position, salaries may be at the proper level. Of course, in this case it is necessary to submit to the commission a staffing table confirming this argument.

Fourthly, the salary may actually be at the industry average level. It’s just that an erroneous OKVED code was indicated in the reporting. The lecturer explained that the salary commission verifies data by industry based on the OKVED code indicated in the reporting. This code does not always correspond to the true activities of the company. This usually happens when they acquire a ready-made company. In addition, a company can engage in several types of activities.

Therefore, it is better to immediately explain to the commission the main OKVED code and indicate the number of employees engaged in this activity. Fifthly, you can also refer to a banal error in reporting. That in fact the salaries are different and the company plans to submit updated declarations with the correct data.

True, those present at the seminar rejected this argument. According to listeners, it can be used if a mistake is actually made. No one will intentionally allow it. In addition, a certain level of salary was accrued during the period. If you file an amended return, you will need to correct all your accounting. And this is a lot of work. Moreover, in this case, the salary will still have to be increased, and even retroactively. Therefore, according to the seminar participants, it is better to do without tricks and simply bring to the commission an order to increase salaries from the current moment. Sixthly, it is enough for the commission to hear about plans to increase salaries. That is, you can present a plan for a gradual increase, but in reality this plan is not carried out. There is no responsibility for such a trick, the lecturer explained.

In addition, there are simply logical arguments. However, as the seminar leader noted, it will not be possible to defend oneself on their basis alone. Firstly, in a certain area, even within the same subject, the level of salaries may differ. Thus, a group of companies in the same industry located in the same area can set approximately the same salaries for their employees. Secondly, even mathematically, some companies’ salaries should be below average. This means that there will always be both leaders and outsiders. This argument can be used if the level of remuneration in a company deviates from the industry average by only 10-15 percent.

The lecturer also presented arguments that do not work on the commission: “we are currently experiencing losses, we cannot increase wages”; “our low salary is associated with a small markup”; “We believe that our salary corresponds to the level.” These arguments put the commission in a negative mood. According to controllers, if a company has losses and low margins, the question arises why it should be in business at all. Of course, a company may operate at a loss at the initial stage. But then you need a business plan that explains how long it will take for the company to reach break-even and profitability.

DANGEROUS AND SAFE SALARY PAYMENT SCHEMES

At the same time, Anton Slyadnev recalled that the main reason why companies show low salaries is the high level of taxation. And in fact, they pay wages using illegal schemes - “envelope” (payment of unaccounted money) and “insurance” (payment of insurance benefits rather than wages).

The lecturer also considered the outstaffing scheme (the transfer of personnel to a company under special regime and their further “renting”) ** to be very dangerous. According to Anton Slyadnev, tax authorities have already learned how to promote these schemes and prove their illegality. A procedure has been established for relations with the Ministry of Internal Affairs, banks and labor inspectorates for the exchange of information and joint inspections.

At the same time, the lecturer cited tax-saving payment schemes, which, in his opinion, are completely legal, safe and will not attract the attention of tax authorities.

Firstly, according to Anton Slyadnev, it is possible to conclude a work contract instead of an employment contract. Using this scheme, the company saves on contributions to the Social Insurance Fund.

Secondly, some workers can be registered as individual entrepreneurs under a special regime. For example, when using the “simplified tax” with the object of taxation “income”, the employee’s salary is subject to a single tax at a rate of 6 percent. Thirdly, part of the payments can be made from net profit.

Here, those present at the seminar noted that today payments from net profit do not provide savings. Moreover, it is more profitable, on the contrary, to increase wages than to pay part of the income from net profit.

Fourthly, salaries can be paid through various types of compensation and bonuses. But at the same time, the lecturer emphasized that tax authorities pay increased attention to compensation. Since these are the only payments to employees that are not subject to unified social tax, but are taken into account when taxing profits.

Meanwhile, we would like to warn you that the savings methods listed above and recommended by the lecturer are known to tax authorities

***. Moreover, in the “DSP” documents, inspectors directly call them tax minimization schemes. Therefore, it is better to apply them in practice with caution, paying special attention not only to documentary evidence, but also to confirmation of the business purpose of the transaction and explanations of the essence of the scheme to its participants (often it is the explanations of uninitiated participants that enable inspectors to prove the illegality of such work).

The lecturer called the “dividend” scheme (as a modification of the “board of directors” scheme ****) the safest. That is, a group of highly paid employees establishes a new auxiliary company (and goes to work there), which is on a “simplified” basis with the object of taxation being “income”. The new company provides management services to the old one and receives money for it. At the same time, none of the employees of the new company receives a salary, but only participates in the distribution of dividends. As a result, employee income is taxed at a rate of 14.46 percent (100 - ((100 - 100 ((6%) - (100 - 100 (6%) (9%)). In fact, the tax rate is close to the regular personal income tax ( 13%).

Anton Slyadnev drew attention to the subtleties of implementing this scheme. Firstly, it cannot be performed with ordinary workers, since they change frequently. In addition, the new company must provide the same services to other companies (they may be hidden affiliates). This is required to ensure that the establishment of the subsidiary company has a business purpose and does not arouse unnecessary suspicion from inspectors. That is, the cost of maintaining the scheme can be significant.

Let us note other disadvantages of this method *****. Firstly, when you receive dividends monthly, the likelihood of dividends being reclassified as salary increases. That is, the frequency of receiving income is reduced to at least once a quarter. Secondly, when transferring control to a third company, tax authorities require confirmation of the effectiveness of the transaction (increase in profit, revenue). Thirdly, the management services themselves need to be deciphered in detail.

* For more information about who is called to the salary commissions and by what criteria, read the article “How will applicants be identified for the salary commissions” in PNP No. 6, 2007

“The Labor Code does not indicate such a regulator of labor relations as the salary commission”

** For more information about the use of an outstaffing agreement, the nuances of its use and how to protect yourself from tax authorities’ claims against it, read the articles “Tax savings due to the withdrawal of personnel: how to avoid mistakes” in PNP No. 2, 2006 “How to protect outstaffing from tax claims" in "PNP" No. 4, 2007 "Fragmentation and outstaffing are recognized as criminal optimization" in "PNP" No. 12 "New practice: outstaffing with "simplers" can be protected" "Responsibility for paying wages below the industry average level is not in the legislation installed"

*** For more information about savings opportunities with the help of a management company, as well as how you can defend expenses for a management company, read the article “How to protect tax expenses for managing a company” in PNP No. 3, 2006

**** For more information about how tax authorities prove these and other schemes, read the article “Unified Social Tax: Six Dangerous Schemes Known to Tax Officials” in PNP No. 2, 2007

***** For more information about the scheme with the board of directors and how to protect it, read the article “Remuneration to the board of directors - a tax risk zone” in PNP No. 7, 2007 The lecturer called the “dividend” scheme the safest

The monthly salary of an employee who has fully worked the standard working hours during this period and fulfilled the labor standards must not be lower than the minimum wage (Part 3 of Article 133 of the Labor Code of the Russian Federation). The federal minimum wage from 05/01/2018 is 11,163 rubles (Federal Law dated 03/07/2018 No. 41-FZ).

And in the constituent entities of the Russian Federation, where a regional minimum wage has been adopted, employers should focus not on the federal minimum wage, but on the minimum wage of the corresponding region (Article 133.1 of the Labor Code of the Russian Federation). By the way, in Moscow from 10/01/2017 it is 18,742 rubles (Moscow tripartite agreement for 2016-2018 between the Moscow Government, Moscow trade union associations and Moscow employers' associations, concluded on 12/15/2015, Moscow Government Decree dated 09/12/2017 No. 663- PP).

In general, paying wages in smaller amounts is not only a violation of labor laws, but also an additional reason for increased interest in such an employer on the part of the tax inspectorate. It is likely that the Federal Tax Service will ask you for an explanation about the low level of wages. We will tell you how to compose them in our consultation.

Low wages? Explanations to the tax office!

The payment of low wages usually leads the inspectorate to believe that the employer, trying to avoid paying personal income tax and contributions, is using gray wage payment schemes. To check such circumstances, the employer may be called to the meeting and asked to prepare explanations about low wages for the meeting. At the same time, tax authorities may be interested in paying wages not only below the minimum wage, but also below the industry average. Increased interest may even be caused by a drop in wage levels compared to previous periods.

Explanation of low wages: sample

Explanations to the Federal Tax Service on low wages are drawn up in any form. Of course, if an employer violates labor laws, it is unlikely to be substantiated. But wages below the minimum wage can be paid legally. For example, when an employee works part-time. This will need to be indicated in the explanations.

Explanations for wages below industry averages can be justified by the special conditions in which the employer operates. For example, a shortage of raw materials and a decrease in production, a drop in demand or an increase in competition. Any arguments that are actually related to the reduction in wages can help. If necessary, documents confirming the conclusions drawn can be attached to the explanations. For example, a staffing table confirming part-time work, or an order justifying a reduction in bonuses.

Explanations must be sent within the time period specified in the request. Although, if the request was sent to the taxpayer in the form of an information letter, the Tax Code of the Russian Federation still does not provide for liability for failure to submit explanations.

For clarification of the alleged understatement of wages, we provide a sample filling.