What is the difference between a CEO and a director? Powers, rights and obligations, procedure for appointment and dismissal. Who is the owner of a group of companies: the founder or the director? Who opens the business director or founder

The title of the position of the head of the organization is specified in constituent documents and the charter in connection with the regulatory reflection of the sole management body. The principle of designating the head of an enterprise and the construction of his labor relations with the company depends on a number of factors and functional areas of the company, as well as on the scale of production or other activities. Description of the director's position A director, as a rule, is appointed a person in a non-profit structure who has a number of management, supervisory, representative and other functions to manage the organization. The director's key responsibilities and area of ​​responsibility are directly related to the company's activities. For example:

• The head of the transport organization ensures the safety of transportation and the creation of conditions for the work and rest regime of drivers.

Advantages of an LLC with one founder - he is also the director

Rostrud insists that employment contract with a director - there cannot be a single participant. The Russian Ministry of Finance indicates that you cannot pay your own salary, but if there is an agreement between the legal entity and the manager, then the expenses can be taken into account.

The courts clearly say that an employment contract must be concluded. As we see, there is no consensus on this issue: some (theorists) are of the opinion that in such a situation an employment contract cannot be concluded, others (practitioners) believe that an employment contract in this case is an urgent necessity.

What should an organization do in such a situation: should it draw up an employment contract with the director or not? Is it worth it to include the manager’s salary as expenses or not? Let's analyze it. Theorists (for example, Yu.P.

What responsibility does the founder of an LLC bear in 2018?

In some cases, it is responsible for licensing activities and providing special vehicles.

• In the field catering The head of the canteen or plant is personally responsible for the quality of food preparation, compliance with technology, sanitary standards, and product safety.

Under his leadership, a collectively developed development strategy for the organization’s profile is implemented, production and economic plans are implemented, and financial and economic issues are resolved. He appoints deputies in charge various directions activities, delegates powers to officials for the management of branches, representative offices, divisions, and sites.

Deputy managers are appointed in both non-profit and commercial structures; there are no restrictions on the use of this position.

If the only participant (founder) is the director of the organization

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At the same time, the director of an LLC is not included in the list of persons who are not subject to the regulation of the Labor Code and with whom an employment contract is not concluded (Part 8 of Article 11 of the Labor Code). There is some legal uncertainty. An additional complexity is the following: if an LLC enters into a TD with the director, then who signs it on behalf of the employer? It turns out to be a kind of legal paradox: the TD must be signed by the same individual both on behalf of the employee and on behalf of the employer.

Note that in this case, an individual is in a different status: in one case, he acts on his own behalf (employee), and in the other, he is a representative of a legal entity. Note that the prohibition on concluding transactions for a representative in relation to himself as an individual is contained in paragraph.

3 tbsp. 182 of the Civil Code. But the regulation of the Civil Code does not apply to labor relations, and there are no such prohibitions in the Labor Code.

What is the difference between the position of director and CEO?

The issue of delimitation of competence is resolved as follows:

• the powers of the participant are determined by the charter of the LLC;
• all other issues are resolved by the General Director on a residual basis (if there is no board of directors in the management system).

For an LLC with one participant (aka director), the rules of Law No. 14-FZ on interested party transactions and major transactions(Part 1, paragraph 5, Article 45 and Part 1, paragraph 9, Article 46 of the said law). In an LLC with a single participant, there is no conflict of interest; it is easy to administer and, from a management point of view, resembles an individual entrepreneur.

Attention

However, legally there are significant differences between an individual entrepreneur and such an LLC. IMPORTANT! The advantage of an LLC over an individual entrepreneur is limited liability.

When creating an LLC, an individual transfers part of his property to him, and the LLC is responsible for its debts with this property.
Management in an LLC Can a founder be a director of an LLC Founder and general director in one person: employment contract Law enforcement practice: TD with a director in an LLC with one participant (aka director) Founder and director - one person: risks Sole founder - general director in 2 companies Management in an LLC The Civil Code of the Russian Federation directly provides for both the possibility of establishing an LLC by one founder, and the permissibility of the operation of an LLC, initially founded by several persons, later with one participant. This can happen either as a result of the departure of the remaining founders from the LLC over time, or in the event of one person acquiring 100% of the shares of the LLC (Part 2 of Article 88 of the Civil Code of the Russian Federation). If in business practice the term “founder of an LLC” is usually used, the legislator prefers to use the term “member of an LLC”.
If there is only one participant in the LLC, then he makes decisions on behalf of the OSU individually. Such decisions must be made in writing.

In this case, a number of provisions defined by Law No. 14-FZ in relation to OSU do not apply (Article 39 of Law No. 14-FZ). Can a founder be a director of an LLC? A direct and positive answer to this question is contained in Part.

2 tbsp. 88 Civil Code. Note that when the director and founder are one person, the management system in the LLC does not become single-level. Although all decisions at any levels of management in such an LLC are made by the same person, from a legal point of view this is a two-level management system.

Who is the head of the organization - general director or founder

According to Article 7 of the Federal Law of February 8, 1998 No. 14-FZ “On Limited Liability Companies” (hereinafter referred to as Law No. 14-FZ), a company can be founded by one person who becomes its sole founder. The same person can also make a decision to appoint a director if for this purpose a general meeting of the company’s participants is impossible, since only one person who acted as a founder when creating the company is its participant.

• From the above it follows that a limited liability company may have one participant who has the right to perform the functions of the head of the limited liability company, i.e.

  be his employee.

• The provisions of the Labor Code of the Russian Federation do not contain rules prohibiting the application of the general provisions of the Code to labor relations when there is a coincidence of an employee and an employer in one person, although the application of the provisions of Chapter 43 of the Labor Code of the Russian Federation to such legal relations is excluded. Consequently, the employee has the right to maternity leave with payment of state benefits social insurance V established by law size, while the Social Security Fund’s argument that...

  
  there is no status of a person insured under compulsory social insurance, rightfully rejected by the court as insolvent

This point of view is indirectly confirmed by the state. organs.

SZV-M. Thus, these persons are subject to the compulsory pension insurance regime and upon payment of insurance premiums they acquire pension rights. Accordingly, these policyholders must submit to the authorities on a monthly basis Pension Fund Russian Federation information about each insured person working for him.

Is it possible to take a director's salary into account as an expense for income tax purposes? Discussions about whether it is necessary to conclude an employment contract with the sole founder of the organization or whether one should do as officials advise (assign the functions of a manager without concluding any contract to oneself (the person who is the sole founder)) would not be so relevant if not one but.

At the same time, the courts have developed a stable practice of recognizing relations with the founding director as labor relations. Let us remind you that for violations of labor legislation on the basis of clause

Code of Administrative Offences, a fine of 30,000 to 50,000 rubles is imposed. from a legal entity. Before registering a TD with a director, it is necessary to create a decision of the sole participant of the LLC on the appointment of a director.

The article “Employment contract with the general director of an LLC (sample)” talks about the features of such a solution. The only founder is the general director in 2 companies. The legislation does not contain prohibitions on the sole participant of an LLC holding the position of director in 2 or more such LLCs.

But only one AP in this case is the main one. In other LLCs, the director must draw up a TD on part-time work. All part-time contracts are subject to the rules of Chapter.

The fact is that, according to tax legislation, expenses for paying wages can be taken into account for tax purposes only if:

• labor relations (Article 255 of the Tax Code of the Russian Federation);
• civil law relations (clause 21 of article 255 of the Tax Code of the Russian Federation).

By virtue of paragraph 21 of Art. 270 of the Tax Code of the Russian Federation when determining tax base expenses for any types of remuneration provided to management or employees, in addition to remuneration paid on the basis of employment contracts, are not taken into account. Therefore, even if there is an agreement with the head of the organization civil contract, accounting for the costs of paying him remuneration is associated with tax risks. According to the Ministry of Finance, the head of an organization, who is its sole founder and member of the organization, cannot calculate and pay wages to himself.

The situation when the CEO and founder are the same person is not uncommon. This is not prohibited by law: one person can establish a company. How to formalize labor relations? Is it necessary to conclude an employment contract? How to pay for labor and not make mistakes with taxes? Question from a webinar participant about cash transactions: in a company, the general director and the founder are the same person. How to conclude an employment contract. Is it mandatory for the general director to be paid and paid? Is it possible to get a salary? general director take into account. Should the salary be the minimum, or whatever the company can afford? Webinars for accountants at Kontur.School: changes in legislation, features of accounting and tax accounting, reporting, salaries and personnel, cash transactions.

Advantages of an LLC with one founder - he is also the director

Management in an LLC Can a founder be a director of an LLC Founder and general director in one person: employment contract Law enforcement practice: TD with a director in an LLC with one participant (aka director) Founder and director - one person: risks Sole founder - general director in 2 companies Management in an LLC The Civil Code of the Russian Federation directly provides for both the possibility of establishing an LLC by one founder, and the permissibility of the operation of an LLC, initially founded by several persons, later with one participant. This can happen either as a result of the departure of the remaining founders from the LLC over time, or in the event of one person acquiring 100% of the shares of the LLC (Part 2 of Article 88 of the Civil Code of the Russian Federation). If in business practice the term “founder of an LLC” is usually used, the legislator prefers to use the term “member of an LLC”.

Is it necessary to appoint a general director in an LLC?

Any audit will reclassify such payment of dividends as salary with all the ensuing tax consequences. How to take into account the cost of the founder's director's salary? Is it possible to take into account the salary of the founding director as part of wage expenses, because, as for general cases, the accrued salary is taken into account as part of expenses (Clause 1 of Article 255 of the Tax Code of the Russian Federation)? The fact is that labor relations take place, since the employee is actually allowed to work, regardless of whether the contract is concluded “on paper” or not (Part 2 of Article 16, Article 19, Part 2 of Article 67 of the Labor Code of the Russian Federation) . Therefore, it can be assumed that this paragraph of the Tax Code is applicable in this case, even if a written agreement was not concluded with the general director - the sole founder.

What is the difference between a director and a CEO

Attention

In practice, this body/position is most often referred to as “general director,” although other names are also found.

• A sole executive body together with a collegial executive body (usually called “board” or “directorate”).
• Management company - other legal entity, performing the functions of an executive body.
If the founder and director of an LLC coincide in one person, the 1st option for organizing the executive body is usually used. The main management body of the LLC is the General Management Board; it makes decisions on the most important issues of the LLC’s functioning. The competence of the OSU is determined by Art. 33 of the Law “On Limited Liability Companies” dated February 8, 1998 No. 14-FZ (hereinafter referred to as Law No. 14-FZ).

Founder and leader rolled into one

The issue of delimitation of competence is resolved as follows:

• the powers of the participant are determined by the charter of the LLC;
• all other issues are resolved by the General Director on a residual basis (if there is no board of directors in the management system).

For an LLC with one participant (aka director), the rules of Law No. 14-FZ on interested-party transactions and major transactions do not apply (part 1, paragraph 5, article 45 and part 1, paragraph 9, article 46 of the said law). In an LLC with a single participant, there is no conflict of interest; it is easy to administer and, from a management point of view, resembles an individual entrepreneur. However, legally there are significant differences between an individual entrepreneur and such an LLC.
IMPORTANT! The advantage of an LLC over an individual entrepreneur is limited liability. When creating an LLC, an individual transfers part of his property to him, and with this property the LLC is liable for its debts.

General Director of LLC: issues of registration, registration, shift

IN important definition The Supreme Court of the Russian Federation dated February 28, 2014 No. 41-KG13-37 concluded that such labor relations are regulated general provisions Labor Code (remember that Chapter 43 of the Labor Code does not regulate them). This point of view is confirmed in paragraph 1 of the Supreme Arbitration Court Resolution No. 21 dated June 2, 2015). A number of court decisions concluded that labor decisions arise on the basis of the decision of a single participant, and registration of a TD is not required (Determination of the Supreme Arbitration Court of June 5, 2009 No. VAS-6362/09).

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The founder and director are one person: risks What should an entrepreneur do in such a situation? There is no clear answer. But we believe that the risk of adverse consequences is much higher in the absence of a TD with the director. Rostrud, which is a control body in the labor sphere and is authorized to conduct inspections and impose administrative penalties, as mentioned above, often changes its point of view on this issue.

Can the founder of an LLC be a director?

Law No. 14-FZ, the sole executive body of the company (general director, president and others) is elected by the general meeting of the company’s participants for a period determined by the company’s charter. The sole executive body of the company may also be elected from outside its participants. An agreement between the company and the person performing the functions of the sole executive body of the company is signed on behalf of the company by the person presiding over the general meeting participants of the company at which a person is elected to perform the functions of the sole executive body of the company, or a participant of the company authorized by a decision of the general meeting of participants of the company.

Thus, the assumption by the sole founder of a company of the functions of the executive body of the same company does not contradict either legal norms or the provisions of the company’s charter.
How to “call” the head of an enterprise There are contractual relations between the head of the enterprise and the enterprise. They are regulated by federal laws, including: the Labor Code of the Russian Federation, federal laws “On joint stock companies", "On limited liability companies", as well as other regulatory and legal documents and acts approved by a subject of the Federation or a territorial body local government. The constituent documents of the organization and, in particular, its charter must state what its leader will be called - individual, exercising management and performing the functions of the sole executive body, as defined by Article 273 of the Labor Code of the Russian Federation.

According to it, the founders can choose any name: director, general director, chairman or president - there is no difference, it does not change the essence in any way, the rights and obligations of the director also do not depend on this. An individual elected to the position by the general meeting or who occupied it on a competitive basis is appointed as the head of the organization. Therefore, you can choose any name, but you should still take into account the specifics of the work, area of ​​activity and production volumes of this particular organization.

If it is small, its leader can be called a director without any damage to his authority. But that's the case when it's quite large enterprise, which has, for example, several branches and subsidiaries, their managers may be called directors, and the general will be the one who carries out general management.

Is it necessary to be a founder general director or just a director?

Let us note that this department does not currently exist, and its legal successor, the Ministry of Labor, has not given an official explanation (there are only the above-mentioned consultations from Rostrud, a service subordinate to the Ministry of Labor and Social Protection).

• The Ministry of Finance believes that in this situation the TD is not concluded (letters dated 02/19/2015 No. 03-11-06/2/7790, dated 10/17/2014 No. 03-11-11/52558). At the same time, accrued wages cannot be included in expenses that reduce the tax base. The first of these letters is applicable to organizations that are on the simplified taxation system (simplified taxation system), the second - for enterprises paying the Unified Tax System (Unified Tax System) (agricultural tax).
• The judicial authorities are of the opinion that in such a situation, labor relations arise (resolution of the FAS ZSO dated November 9, 2010 in case No. A45-6721/2010 and a number of other precedents).

Thus, in this case, an employment contract with the general director as an employee is not concluded. The Ministry of Health and Social Development of Russia, in letter No. 22-2-3199 dated August 18, 2009, takes the same position: from the norm of Article 273 of the Labor Code it follows that signing an employment contract both on behalf of the organization and on one’s own behalf is impossible, since there cannot be one and the same signature on both sides, but the organization does not have another owner. But there are also court decisions. For example, the resolution of the Federal Antimonopoly Service of the North-Western District dated May 19, 2004 No. A13-7545/03-20 states that in accordance with Art. 11 of the Federal Law of 02/08/1998 No. 14-FZ “On Limited Liability Companies” (hereinafter referred to as Law No. 14-FZ), the decision to establish a company can be made by one person. According to paragraph 1 of Art.

He is appointed by the meeting of founders. The legislation provides the founders with the opportunity to create the Management Board of the company and the Board of Directors.

But the creation of these bodies is not a mandatory requirement.

To create or not to create them is the right of the LLC founders. The obligatory body of the company is Audit Commission. The composition of the commission is approved at the general meeting of founders.

The Commission exercises control over financial activities LLC, the safety of its property. Responsibility of LLC founders by Law No. 14-FZ of February 8, 1998

Responsibility of the founder for the activities of the LLC in 2020

Restrictions on establishing an LLC exist for military personnel, deputies and other government officials. Responsibility within authorized capital The conditions under which the founder of an LLC is liable for the organization’s obligations are described in Law No. 14-FZ dated 02/08/1998, as well as in the Civil Code of the Russian Federation.

Thus, Article 1 of this code provides that in the event of liquidation or bankruptcy of an organization, the shareholder of the LLC is liable exclusively with the property and assets of this organization. That is, in the event of a financial collapse of an enterprise, when the company’s debts to creditors and counterparties exceed the actual value of the authorized capital and all property (both movable and immovable), the owner of such an enterprise legally has the right not to cover the difference in debt with personal funds or property.

There is virtually no risk of losing bank assets, real estate, cars and other personal possessions. This legislative norm is confirmed by the Civil Code of the Russian Federation.

Responsibility of the CEO of an LLC: how to protect yourself

The financial liability of the general director of an LLC extends not only to direct losses arising through his fault, but also to profits lost due to his inaction. In the first case we mean real material damage: compensation for the cost of lost property; compensation for costs incurred by a person to restore rights that the manager is guilty of violating.

In the second - lost income that the company could have earned if the director had done everything for this possible steps, timely and sufficient.

Who is responsible director or founder

The main topic of questions that bankruptcy trustees and practicing lawyers asked the judges was the application of the laws on subsidiary liability. Photo from the site gerontonews.com It is well known that 5 and 10 years ago, bringing the director and founder of a bankrupt company to subsidiary liability was the exception rather than the rule.

Is the director of an LLC (hired) responsible for the activities of the company during its liquidation if he was fired on the eve of liquidation (removed from the Unified State Register of Legal Entities)?

Disciplinary liability can only be applied to an employee who is on active duty. labor relations with the organization. Accordingly, in this case it is not applicable. According to Art.

44 Federal Law “On Limited Liability Companies” members of the board of directors (supervisory board) of the company (can be elected from among the founders), the sole executive body of the company (director) are liable to the company for losses caused to the company by their guilty actions (inaction), if other grounds and amount of liability are not established by federal laws.

Responsibility of the director and founders of the LLC

Therefore, certain types of liability may also be applied to the LLC founder. It all depends on what function he performed at the enterprise, and whether his actions/inactions were lawful and aimed at the well-being of the organization.

Director's liability If in the case of the founders the liability was limited only to the invested share, then with the director such a number will not work.

Federal laws of December 28, 2016 No. 488-FZ and November 30, 2016 No. 401-FZ excited business owners, directors, financial directors and chief accountants. Liability with all your personal property for tax violations even after the organization is excluded from the Unified State Register of Legal Entities is a serious threat. If the business owner and director carry out entrepreneurial activity at your own risk, then accountants and financial directors for a salary. A pressing question arose: “Who is responsible for what and to what extent and how to avoid responsibility?”

Director's responsibility

One way to avoid responsibility is to shift it to other people. But if you combine the main roles in business, this is difficult to do. You can try the following: appoint one of the organization’s employees responsible for checking counterparties, specifying it as much as possible job responsibilities and even after special training.

In case of concluding an agreement with a one-day company, which, in the opinion of tax authorities, led to illegal tax optimization and further additional charges that the organization cannot pay, the question of subsidiary liability arises, it will be possible to try to prove that the occurrence of an unjustified tax benefit occurred as a result of the guilty actions of the responsible employee company (controlling person), not the CEO.

To date judicial practice according to 401-FZ and 488-FZ, no, and it is the director who is responsible for managing the legal entity, and recognizing an employee of an organization as a controlling person is extremely difficult. And yet, it is precisely the blurring of responsibility that is one of the few ways to avoid or reduce the amount of responsibility.

Responsibility of the chief accountant and financial director

Before the departure tax audit Tax authorities conduct a pre-audit analysis not only of a legal entity, but also an assessment of the property status of the founders, directors, chief accountant, and top managers. If a significant increase in income is identified, occurring in parallel with the application of optimization schemes of the employing company, a conclusion to these individuals cash and property, with further transfers to beneficiaries, they may be held vicariously liable.

Splitting a business as a way to optimize and increase the security of company assets has a side effect: the need for founders and directors who do not coincide with the beneficiary. And here, in addition to relatives and friends, business owners begin to attract trusted persons on their payroll, who are also close at hand and who can be relatively trusted - accountants and financial directors, registering companies with them that split up the big business.

So, if such fragmentation is recognized as an unjustified tax benefit, such new owners can be brought to subsidiary liability.

Responsibility of the founders

If it is established that the organization that has the tax authorities’ claims has several controlling persons, then they will be jointly and severally liable, in other words, they will pay jointly, without taking into account their role, the size of shares in the authorized capital, etc.

Tax officers are ready to work

The problem is that even if you start whitewashing a business tomorrow, it will take at least three more years to say that it is relatively safe, which means that you need to act as quickly as possible and as thoughtfully as possible.

A full explanation on the topic: “who is the chief general director or founder of an LLC” from a professional lawyer with answers to all your questions.

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