Report on the provision of company management services. Agreement for the provision of services for the management of a legal entity by a management company. Efficiency of the management company

In the course of structuring a business and building a group of companies, the question of maintaining the manageability of the entire group always arises, provided that, as a rule, the management personnel of the business is united and it is impossible to divide it between companies.

As a result, this always leads to the need to search for a management option where the owner remains able to control and influence decision-making both for the entire business as a whole and for any of its segments, despite the economic independence of each group entity.

In this case, when designing a business model, the management company can act as a link between its individual elements.

A management company is any organizational and legal form (in our experience, not only LLC or JSC, but also cooperatives, partnerships, partnerships and even non-profit organizations), which accumulates a complex of strategic, tactical, general marketing (including brand management), organizational, motivational and control functions, as well as functions of scientific and technical development and financial management for all other entities of the Group of Companies.

Formation of such functionality management company due to the following economic and managerial reasons:

1. The need for all entities of the group of companies to have common auxiliary functions:

accounting, legal, marketing and other services, the provision of which by employees of a specialized organization is organizationally and economically more profitable than the creation of similar staff services in each individual company.

Most often, managed legal entities do not have their own lawyer, accountant, or system administrator - all this is handled by the staff of the management company. Objectively, not every business is able to accommodate such a staff in each individual organization of the Group. But even with this option organizational structure there must be a central link that manages local employees.

Therefore, there are cases of creating functionally similar services both in the management company and in the managed society (for example, when the structure is branched, when individual societies are significantly removed from each other and from the management company itself), however, in this case, the management company is engaged in solving strategic problems, then how employees of a managed company perform routine work that does not require highly qualified and knowledge of the strategic plan for business development as a whole.

2. The ability to quickly implement and develop, as well as adjust the previously developed strategy for the group of companies as a whole.

Undoubtedly, business owners need to have complete information regarding its functioning, financial performance, and the degree of effectiveness of previously made management decisions.

In this sense, the value of direct receipt of information about all significant events directly to “headquarters” is invaluable for both owners and top management.

3. Transfer of management from the plane of “he is the most important here, everyone knows him” to the legal field, formalization of relations between the management and subordinate companies through civil legal means and thereby ensuring the necessary degree of control over the activities of managed companies.

In our practice, we have more than once encountered situations where, as a business grows with a small number of owners, new companies are registered, the leaders of which are only formally such; in fact, management is concentrated in the hands of the real beneficiaries.

But there comes a time when the number of personnel and the number of individual organizations within one business reaches a critical level, the owners are not recognized by sight and do not obey their oral orders (and they do not have the right to issue written ones). Even worse, the nominee director can “get things wrong”, because legally he has the right to make decisions, which will lead to unfavorable consequences (primarily of a financial nature).

We must not forget about the costs of paying the nominal manager, which you will incur one way or another, as well as the need to pay social taxes.

Management through the management company helps to avoid such negative aspects.

4. Opportunity legal reduction tax burden through the application of the Criminal Code of the simplified taxation system.

Contractual regulation of the relationship between management companies and managed companies can be mediated by two types of agreements:

contract for the provision of management services;

agreement to perform the functions of the sole executive body.

The choice of one or another contractual instrument depends on a number of factors and the specific structure of the group of companies. Let us consider the features of the application of each of the agreements separately:

Agreement for the provision of management services.

When concluding this agreement, all or some strategic, as well as auxiliary functions in relation to the operational core are transferred to the management company: legal, accounting and personnel support, security, etc., the need for which is felt by all entities of the holding, but the creation of similar divisions in each of them is unprofitable and impractical.

The task of the management company in this case is to determine the main vectors of activity (to develop marketing strategy, carry out scientific and technical development, issue a program of activities for a group of companies for the year, etc.), which must be followed by all managed companies without exception.

It should be noted that the managed company has its own sole executive body (director, individual entrepreneur or other Management company, but in the role of the sole executive body (SEO)), which exercises operational management of the company, makes all current decisions and is responsible for financial result. It is he who is listed in the Unified State Register of Legal Entities as a subject who has the right to act on behalf of the company without a power of attorney.

With such interaction between the individual executive and the management company, the first is limited only by the strategic framework set by the management company, and is completely independent in the process of managing the current activities of his company. Moreover, these frameworks (in the form of reporting forms and periods, as well as a mechanism of responsibility) can and should be laid down both in the agreement with the management company (this is the condition under which the management company undertakes management) and in the agreement with the individual executive organization itself.

However, our experience shows that owners (especially when transforming a single company into a holding) avoid delegating powers to hired managers in every possible way, fearing that they will get out of control.

In this case, reason comes into conflict with feelings: on the one hand, the owner understands the objective need to “give up” the reins of government (a non-core activity specifically for him, employment in another project, the inability to cover all areas of his business), and on the other hand, psychologically cannot come to terms with the fact that his brainchild will be managed by someone else.

In this regard, the issue of trust in the hired manager on the part of the owner becomes particularly relevant.

At the same time, one cannot fail to note the significantly higher degree of personal interest of the director in the results of the activities of the managed company, compared to the agreement on the transfer of functions of the sole executive body, which is automatically reflected in the level of his personal (and not imposed from outside) responsibility.

It is thanks to this tool for a controlled increase in the degree of independence that a synergistic effect from business structuring is achieved - tax optimization can be enhanced by increasing managerial efficiency.

In addition, in the event of any adverse consequences of the activities of the managed company (the simplest example is tax claims), it is unlikely that anyone will be able to definitely assert (and prove) that such consequences occurred as a result of the execution by the director of the managed company of direct orders of the management company.

In other words, the management company will protect itself from negative consequences, and will also have the opportunity to save business reputation and an established image, citing the “amateur activity” of the hired director.

Agreement to perform the functions of the sole executive body

Let us recall that the possibility of transferring powers to manage an organization to the Management Company is provided for by a number of federal laws:

For example:

clause 1, art. 42 of the Federal Law on LLC: The company has the right to transfer, under an agreement, the exercise of the powers of its sole executive body to the manager. clause 1 art. 69 Federal Law on JSC: By decision general meeting shareholders, the powers of the sole executive body of the company can be transferred by agreement commercial organization (management organization) or an individual entrepreneur (manager).

In this case, an agreement is concluded with the management company to transfer the functions of the sole executive body. It is the management company (represented by its director) that receives the authority to act without a power of attorney on behalf of the managed company: to represent the interests of the managed company in all organizations and institutions, as well as to enter into any economic relations. Key managers of the business, its owners in this case are employees and/or participants of the management company and already at its level and on behalf of the management company perform all management functions.

Of course, the director of the management company cannot effectively manage the management company itself, and even all the managed companies, therefore, on the basis of a power of attorney, he delegates his powers to a special employee who will be the actual head of the managed company.

Moreover, such an actual manager is on the staff of the management company (!) and receives a salary from it.

The degree of control of the owners, reporting and responsibility, as well as the degree of independence of the actual manager when making decisions in this case is determined by the provisions employment contract with the Criminal Code.

A negative consequence of the appointment of such a manager may be a low degree of responsibility and a lack of deep personal interest in the results of the activities of the managed company.

As we can see, there is no doubt that the inclusion of a Management Company in the business model helps solve many difficulties in the presence of an extensive legal structure of the business.

At the same time, taking into account the realities and trends of tax administration, One cannot ignore the question of how the management company is viewed from this side.

After all, the existence of a management company gives grounds to talk about the affiliation of the entities managed by it among themselves (even if the owners of the companies do not coincide). Of course, when we're talking about about, for example, purely accounting and legal services(not about the status of the management company as a single individual organization) and such services are provided not only to organizations connected by contractual relations, but also to outside entities, it will be difficult to recognize affiliation on this basis. In the case of fulfilling the role of the sole executive body, the presence of a single managing entity for several legal entities, which are all the more bound by other agreements with each other (which usually happens if a business is built within a group of companies), will link all organizations into a single structure.

This is not critical if all entities apply the simplified tax system and there is no possibility for the tax savings described above by applying the same criminal code of the simplified tax system. However, such affiliation will attract attention if we are talking about the interaction of entities in different special regimes, which naturally leads to minimizing taxation on business income.

Considering that tax authorities are paying increasingly close attention to such structures, trying to justify the artificiality of their division into several entities or the unreasonableness of the costs of attracting the management company itself, In terms of separating the management company, the following rules must be observed:

1) The types of services provided must be specified. The more detailed the subject of the management company’s activities is described, the more difficult it is to prove the artificiality of its separation in a group of companies (see, for example, Resolution of the Seventeenth Arbitration Court of Appeal dated October 30, 2012 No. 17AP-11284/12: the taxpayer managed to win the dispute by maximizing the detail of evidence of the execution of the contract In the report on the execution of powers of the individual executive officer, the volume of work performed to manage current activities is indicated with a breakdown of the work performed by employees of specific departments (services), and even the volume of hours spent on each service is indicated).

Considering that many companies currently use various software systems, allowing you to track the time spent performing certain tasks by employees, the solution to the task of collecting such information can be automated.

At the same time, the management company, in the role of the sole executive body, carries out the current management of the company, a full detailed description of which is impossible in the contract. Both corporate legislation and, as a rule, company charters usually reserve residual competence for the individual executive officer: “and other things not included in the powers of other bodies of the Company.” Therefore, if the management agreement with the management company in the role of sole executive officer does not contain a specific list of the management company’s powers, it is impossible to talk about the lack of detail in the functions of the management company, and, consequently, its artificial separation. This conclusion is also supported judicial practice:

Due to the very nature of current management activities, it is impossible to comprehensively determine the competence and scope of responsibilities of the EIO (Management Company) not only at the level of law, but also at the level of the company’s Charter, agreement on the transfer of powers, local regulations, since it is impossible to provide for all issues on a daily basis arising in the activities of the managed organization and which are not within the exclusive competence of the general meeting and the board of directors.

Resolution of the Federal Arbitration Court of the West Siberian District of May 12, 2014 No. F04-2761/14 in case No. A81-2271/2013

2) Care must be taken in the description of the procedure for calculating the management company’s remuneration for its services.
So, if you tie remuneration to the achievement of any indicators (growth in revenue, profit, number of clients, etc.) - it is necessary to confirm each time their achievement or non-achievement, formalize all necessary documentation. Otherwise, the tax authority will challenge the payments to the Criminal Code (Resolution of the Arbitration Court of the North Caucasus District dated July 11, 2016 N F08-3871/16 in case No. A01-1790/2015, Resolution of the Fifteenth Arbitration Court of Appeal dated February 16, 2016 No. 15AP-22105/15).

As a rule, the courts, siding with the tax authority, say that they could not confirm what specific work the management company performed and how the cost of each type of its services was determined. Therefore, a description of the procedure for forming the cost of services provided in the contract itself and a breakdown of the final cost for each period of the management company’s activity is a mandatory condition for working with the Management Company.

Of course, the reward should include everything running costs Management company for maintaining its activities: office rent, payroll for employees, etc. This amount forms the base remuneration amount. If the management company does not accumulate part of the business’s profits, then the remuneration may provide for a fixed fixed amount covering the expenses of the management company with a possible small increase, for example, no more than once a year (in case of an increase in the payroll or other expenses);

The above calculation of remuneration can be complicated if, for example, the payroll of employees depends on their performance indicators and changes from month to month. For this purpose, companies have developed their own systems for calculating remuneration for each employee, which can also be used as the basis for calculating remuneration for management companies. In this case, it will be necessary to detail each indicator to confirm the validity of the management costs in the declared amount.

Along with covering the basic expenses of the management company, remuneration may also include a variable part depending on financial result activities of the management company: for example, as a percentage of the revenue or profit of the managed company. This can be either a monthly increase to the basic remuneration or an “annual bonus” of the management company based on the results of the financial year. In any case, remuneration in this form must be justified by the mandatory growth in revenue/profit of the managed company and confirmation that such growth is related to the activities of the management company and its employees. Moreover, of course, this part of the remuneration should not lead to the fact that the entire profit operating company flows into the management company, which applies a lower income tax rate.

3) Proof of the effectiveness and reality of the management company’s activities will be indicators of growth in revenue, profit, assets of the managed company, which, in turn, for example, led to an increase in taxes paid to it (this indicator will be especially valuable).

4) Evidence of the independence of the management company as an economic entity will be the implementation management functions for several companies, preferably not related to each other (for one, for example, in the role of sole executive officer, for another, providing only accounting services etc.).

5) High professionalism of the staff of the management company (in comparison with the managed one), increased requirements for their level of education, work experience, etc. will also allow you to confirm professional competence and independence of the Criminal Code (see, for example, Resolution of the Arbitration Court of the North Caucasus District dated January 26, 2015 No. F08-9808/14 in case NА32-25133/2013).

Taking into account the described nuances, it is necessary to carefully approach the legal recording of the actual activities of the Management Company and the procedure for its interaction with its customer of services. In addition to the constant, systematic collection of evidence confirming this activity and its usefulness for the managed companies, problems with the tax authority should not arise.

In the last issue of the magazine we discussed legal problems related to the transfer of powers of the sole executive body of a legal entity to the managing entity. Let us dwell on some of the problems that an organization may encounter when executing a contract for its management.

Tax accounting of payments to a managing entity

Subclause 18, clause 1, art. 264 of the Tax Code of the Russian Federation establishes that other expenses associated with production and sales include:

— expenses for managing the organization or its individual divisions;

Expenses for the purchase of services for managing an organization or its individual divisions.

Let us make a reservation that in the above provision we have specifically identified two groups of expenses in order to determine which group should include the organization’s expenses for payments in favor of the management company or the manager to whom the powers of the sole executive body of this organization have been transferred.

Let us turn to the letter of the Federal Tax Service of Russia for Moscow dated November 3, 2004 No. 26-12/7113 (hereinafter referred to as the letter), which contains the answer to the taxpayer’s question: in what order does an organization reflect, for profit tax purposes, expenses associated with payment for the services of a third-party company? to carry out the functions of the executive body of the organization?

The letter explains that, according to sub. 18 clause 1 art. 264 of the Tax Code of the Russian Federation, other expenses associated with production and (or) sales include not only the costs of managing the organization and its individual divisions directly by the taxpayer through employees employed by job descriptions assigned functions for managing the organization. These expenses also include expenses for the acquisition of third-party management services.

It follows that the organization’s expenses for payments in favor of the managing entity must be attributed to the second group of expenses that we have conditionally identified, listed in subparagraph. 18 clause 1 art. 264 Tax Code of the Russian Federation. And we can agree with this. This is exactly the way practice goes. We will return to further explanations (quite detailed and reasonable).

However, agreeing with the tax administration in this part, we consider it necessary to discuss the expressed opinion that the expenses of the first group include costs associated with payments in favor of full-time employees of the organization, who are assigned the functions of managing the organization by job descriptions. After all, this is precisely what follows from the letter in question. In this case, these payments made on the basis of employment contracts must be taken into account as other expenses associated with production and sales in accordance with subparagraph. 18 clause 1 art. 264 Tax Code of the Russian Federation. In our opinion, this position is incorrect. Let's justify this.

According to Art. 255 of the Tax Code of the Russian Federation, the taxpayer’s expenses for wages include any accruals to employees in cash and (or) in-kind forms, incentive accruals and allowances, compensation accruals related to work hours or working conditions, bonuses and one-time incentive accruals, expenses associated with the maintenance of these employees, provided for by law, employment agreements (contracts) and (or) collective agreements. At the same time, this article provides a list of such expenses, which is not exhaustive.

Let us note that in the provisions of Art. 255 of the Tax Code of the Russian Federation does not stipulate that accruals to employees performing functions related to the management of the organization do not relate to labor costs and must be taken into account in a special manner. Consequently, accruals to these employees must also be taken into account as part of labor costs. The same conclusion follows from the contents of the letter of the Ministry of Finance of Russia dated November 30, 2009 No. 03-03-06/4/101. This document is devoted to a different problem. However, it does note the following. Expenses for the payment of remuneration to the manager for the results of financial and economic activities made on the basis of an employment contract can be taken into account as part of labor costs that reduce the tax base for income tax in the reporting (tax) period to which they relate, then is in the period of accrual of such remuneration.

The question arises: what expenses of the organization can be attributed to the first group of expenses specified in subparagraph. 18 clause 1 art. 264 of the Tax Code of the Russian Federation? There is an opinion that expenses for managing an organization or its individual divisions should include those justified and documented expenses of the taxpayer that are in any way related to the management of the organization or its individual divisions and are not directly mentioned in other provisions of Chapter 25 of the Tax Code of the Russian Federation. In our opinion, this position is correct.

Recognition of expenses

In the above-mentioned letter from the Federal Tax Service of Russia for Moscow, in particular, it is indicated that the condition for recognizing expenses is their validity, documentary evidence and focus on carrying out income-generating activities. It is noted that in accordance with Art. 420 of the Civil Code of the Russian Federation, an agreement between two or more persons to establish, change or terminate civil rights and obligations are recognized in civil law by contract. Execution compensation agreement paid at the price established by agreement of the parties.

Further, the tax department concludes that when forming tax base To calculate income tax, an organization can take into account the costs of paying for the services of a third-party management company incurred under the concluded agreement. In this case, it is necessary that the expenses meet the criteria listed above, and that there is also a concluded agreement, a payment order and a certificate of completion of work. Attention is also drawn to the fact that, according to Art. 40 of the Tax Code of the Russian Federation for tax purposes, the price of goods, works or services specified by the parties to the transaction is accepted. Until proven otherwise, this price is assumed to be in line with market prices. At the same time, tax authorities, when monitoring the completeness of tax calculation, have the right to check the correctness of the application of prices for transactions in the event of a deviation of more than 20% upward or downward in the level of prices applied by the taxpayer for identical (homogeneous) goods (works, services) within short period of time.

In conclusion, the letter notes that if the above deviations are identified, the tax authority has the right to make a reasoned decision on additional tax and penalties calculated as if the results of the transaction were assessed based on the application of market prices for the relevant goods, works or services.

So, from the letter in question it follows that the planned expenses associated with the payment of remuneration to the managing entity must comply with the general criteria enshrined in Art. 252 of the Tax Code of the Russian Federation: be justified and documented. At the same time, the tax authorities, in accordance with Art. 40 of the Tax Code of the Russian Federation, in certain cases, it has the right to check the correctness of the application of prices under contracts concluded with these entities and to apply appropriate sanctions.

We consider it necessary to clarify when exactly the tax authorities can exercise these powers. This should be done due to the fact that the letter does not indicate all the cases in which the tax authority has the right to check the correctness of the application of prices. Let's discuss this problem.

Conditions for exercising the right to inspection

First of all, we note that the content of the provisions of Art. 40 of the Tax Code of the Russian Federation allows us to distinguish two types of powers of tax authorities: the right to check the correctness of prices and the right to apply appropriate sanctions.

From paragraph 2 of Art. 40 of the Tax Code of the Russian Federation it follows that tax authorities, when monitoring the completeness of tax calculations, have the right to check the correctness of application of prices for transactions only in the following cases:

Between interdependent persons;

For commodity exchange (barter) transactions;

When making foreign trade transactions;

If there is a deviation of more than 20% upward or downward from the level of prices used by the taxpayer for identical (homogeneous) goods (works, services) within a short period of time.

From the contents of the above letter from the Federal Tax Service of Russia for the city of Moscow it follows that this document only meant the last of the named cases. Meanwhile, the possibility of concluding an agreement on the management of an organization by interdependent persons is quite likely. Therefore, we present the definition of the concept of “interdependent persons” contained in Art. 20 Tax Code of the Russian Federation. According to paragraph 1 of this article, specified persons for tax purposes are individuals and (or) organizations, relations between which may affect the conditions or economic results of their activities or the activities of the persons they represent, namely:

One organization directly and (or) indirectly participates in another organization, and the total share of such participation is more than 20%. The share of indirect participation of one organization in another through a sequence of other organizations is determined as the product of the shares of direct participation of organizations of this sequence in one another;

One individual is subordinate to another individual due to his official position;

Persons are constituted in accordance with family law Russian Federation in marriage relations, relations of kinship or property, adoptive parent and adopted child, as well as trustee and ward.

We note that according to clause 2 of Art. 20 of the Tax Code of the Russian Federation, the court may recognize persons as interdependent on other grounds not provided for in paragraph 1 of this article, if the relationship between these persons may affect the results of transactions for the sale of goods (work, services). Let us give an example of the justified application of this provision.

From the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 17, 2003 No. 71, it follows that the inspectorate considered the LLC and its counterparty to be interdependent persons on the basis that the founders of these organizations are the same citizens who are interested in the interaction of their organizations and the establishment favorable conditions transactions. Since the above reason is not provided for in paragraph 1 of Art. 20 of the Tax Code of the Russian Federation, the company believed that the tax authority’s verification of the correctness of the application of prices could be carried out only after the court recognized the fact of interdependence of persons at the request of the inspectorate. In his opinion, failure to comply with this procedure entails the invalidity of the tax authority’s decision to assess additional taxes and penalties.

The court rejected these arguments, stating the following. Establishing the fact of interdependence of persons due to circumstances not listed in paragraph 1 of Art. 20 of the Tax Code of the Russian Federation, is carried out by the court with the participation of the tax authority and the taxpayer during the consideration of the case concerning the validity of the relevant decision. Having assessed the evidence presented by the parties, the court recognized the LLC and its counterparty as interdependent persons and considered on the merits the issue of the correctness of the calculation of additional taxes and penalties.

Thus, if the founders of the management company and the organization that entered into an agreement with this company for its management are the same persons, then this circumstance may serve as the basis for the tax authority to exercise its right to verify the correct application of the price of the specified agreement in accordance with subparagraph. 1 item 2 art. 40 Tax Code of the Russian Federation. Let us note that for now we are not talking about the occurrence of adverse consequences for the taxpayer, but rather about the right of the inspectorate to carry out further inspections.

Let us dwell on the grounds for inspections provided for in subsection. 2 and 3 paragraphs 2 art. 40 Tax Code of the Russian Federation. Let us recall that these subparagraphs indicate commodity exchange (barter) transactions and foreign trade transactions. Let us note the following.

Theoretically, it can be assumed that services for managing an organization will be provided in exchange for goods or any services. In this case, the tax authority will be able to check the correctness of the parties’ application of the contract price in accordance with subparagraph. 2 p. 2 art. 40 Tax Code of the Russian Federation.

The Tax Code of the Russian Federation does not contain a definition of the concept of “foreign trade transaction” for the purposes of Art. 40 Tax Code of the Russian Federation. Therefore, you should refer to the Federal Law of December 8, 2003 No. 164-FZ “On the Fundamentals government regulation foreign trade activities". In accordance with Art. 2 of this law, foreign trade activity is the activity of carrying out transactions in the field foreign trade goods, services, information and intellectual property. The same article establishes that participants in such activities are Russian and foreign entities engaged in foreign trade activities. Consequently, if one of the parties to the contract for the management of an organization is a foreign person, then the inspection will have the right to check the correctness of the parties’ application of the contract price in accordance with subparagraph. 3 p. 2 art. 40 Tax Code of the Russian Federation.

The fourth basis for conducting inspections requires particularly detailed discussion. Let us once again quote and analyze the case provided for in subsection. 4 p. 2 tbsp. 40 Tax Code of the Russian Federation. This subparagraph refers to a deviation of more than 20% upward or downward from the level of prices applied by the taxpayer for identical (homogeneous) goods (works, services) within a short period of time.

Tax authorities often believe that in this case they mean a comparison of the price of a transaction made by a taxpayer with the prices of transactions for identical (homogeneous) goods (work, services) made by other persons. In their opinion, having established this circumstance, the inspection has the right to apply clause 3 of clause 2 of Art. 40 Tax Code of the Russian Federation.

From the resolution of the Federal Antimonopoly Service of the North-Western District dated 04/07/2008 No. A56-3949/2007, it follows that the company sold real estate to several persons during the audited period. According to the tax authority, the prices applied did not correspond to market prices, and therefore additional taxes were assessed on the organization and sanctions were applied on the basis of clause 3 of clause 2 of Art. 40 Tax Code of the Russian Federation. However, the courts of three instances concluded that in this case the inspectorate had no reason to check the correctness of the taxpayer’s application of prices. Let us give some arguments from the courts.

In paragraph 13 of the resolution of the plenums of the Armed Forces of the Russian Federation and the Supreme Arbitration Court of the Russian Federation dated June 11, 1999 No. 41 and No. 9, it is explained that when resolving disputes related to determining the price of goods, works, services for tax purposes, the court should proceed from the following. The price indicated by the parties to the transaction can be challenged by the tax authority for these purposes only in the cases listed in clause 2 of Art. 40 Tax Code of the Russian Federation. Consequently, in other cases the inspection does not have the right to challenge the price indicated by the parties to the transaction. In this case, the tax authority’s conclusion that the company understated revenue for tax purposes was made on the basis of a comparison of the prices it applied with market prices for identical (homogeneous) goods, in its opinion. At the same time, issues related to the deviation of the selling price for disputed transactions by more than 20% upward or downward from the level of prices applied by the taxpayer himself for identical (homogeneous) goods within a short period of time, or with transactions between interdependent persons. Therefore, the inspection did not have the grounds provided for in paragraph 2 of Art. 40 of the Tax Code of the Russian Federation, to verify the correctness of the company’s application of prices for controversial transactions.

The Supreme Arbitration Court of the Russian Federation agreed with the conclusions of the lower courts and refused the tax authority to transfer the case to the supervisory authority, which follows from the Determination of the Supreme Arbitration Court of the Russian Federation dated August 7, 2008 No. 9925/08.

Now let’s project this problem onto the topic under discussion. Let’s assume that when inspecting an organization that entered into a corresponding agreement with a management company, the inspection found the price of this agreement, relatively speaking, “suspicious.” At the same time, the tax authority has no grounds for applying subparagraph. 1, 2 and 3 paragraphs 2 art. 40 Tax Code of the Russian Federation. In this case, in order to verify the correct application of the price on the basis of subparagraph. 4, paragraph 2 of this article, the inspection must establish that within a short period of time the organization entered into other management contracts (or at least one contract). Moreover, the prices of these contracts (contracts), when compared with the “suspicious” contract price, deviate from this price upward or downward by more than 20%.

Only after receiving evidence of the existence of such circumstances, the tax authority will have the right to apply clause 3 of Art. 40 Tax Code of the Russian Federation. In this case, he will compare the “suspicious” price with the market price of management services, which must be determined taking into account the provisions provided for in paragraphs 4-11 of Art. 40 Tax Code of the Russian Federation.

However, the fact that, say, two contracts are called contracts for the management of an organization or contracts for the provision of services for the management of an organization does not mean that such contracts can be considered identical (homogeneous). More on this in the next section.

Let's take into account the specifics of the service

Let us draw attention to the fact that the management of an organization, recognized as a service for tax purposes, is a very specific type of activity. Its specificity lies, in particular, in the individuality of legal entities - objects of management. In this case, we are talking not only about their quantitative indicators, but also about their qualitative characteristics. The tasks that LLC participants or shareholders set for the management company or manager may also be different. It is one thing if a managing entity takes over the management of a stable enterprise, and quite another if he is entrusted with an organization that is on the verge of bankruptcy in the hope that he will be able to bring it out of the crisis. In addition, managing subjects also have their own specific characteristics. Some have already proven themselves quite well, while others may be performing in this role for the first time.

This specificity makes it extremely difficult to find organization management services that could be considered identical or homogeneous. Therefore, before the tax authority, who wishes, in accordance with subparagraph. 4. clause 2 art. 40 of the Tax Code of the Russian Federation, proving the discrepancy between the price applied by the taxpayer when paying for the services of a managing entity is a very difficult task. If the inspection has coped with this task and has received the right to check the correctness of the application of prices, then it faces an equally difficult task - to identify the market price of identical (homogeneous) services for managing an organization. The tax authority needs this to apply clause 3 of Art. 40 of the Tax Code of the Russian Federation, which we previously considered.

Let us remind you that according to clause 4 of Art. 40 of the Tax Code of the Russian Federation, the market price of a product (work, service) is recognized as the price established by the interaction of supply and demand on the market of identical (and in their absence, homogeneous) goods (work, services) under comparable economic (commercial) conditions. At the same time, to determine the market price, it is necessary to comply with the conditions provided for in clauses 5-11 of Art. 40 Tax Code of the Russian Federation. Taking into account these circumstances and the specifics indicated above, it can be argued that it is extremely difficult to determine the market price of services for managing an organization.

Expediency and reasonableness as criteria for recognizing expenses

So, we have established that the organization has significant potential to protect its right to determine the price under an agreement with the managing entity based on its interests. However, this does not mean at all that the inspectorate is initially doomed to lose any case related to a claim regarding the amount of remuneration paid by the taxpayer to its specific counterparty.

Returning to the explanations contained in the letter, let us pay attention to the mention in this document of the following conditions for recognizing expenses for managing an organization: their validity, documentary evidence and focus on generating income. In this case we are talking about the general requirements for expenses contained in Art. 252 of the Tax Code of the Russian Federation, which for some reason was not mentioned in the letter. This article, in particular, establishes that expenses are recognized as justified and documented expenses incurred (incurred) by the taxpayer. In this case, justified expenses are understood as economically justified expenses, the assessment of which is expressed in monetary form.

Ignoring these general requirements to expenses and may lead the organization that has entered into an agreement with the managing entity to not recognize the costs incurred by the taxpayer when paying the remuneration to this subject. In this case, the tax authority will not have to resort to complex procedures provided for in Art. 40 Tax Code of the Russian Federation. Let us give two examples from the practice of arbitration courts.

The resolution of the Federal Antimonopoly Service of the Ural District dated March 28, 2007 No. Ф09-2058/07-С3 states that the founder, sole shareholder and general director of this CJSC there was one individual. After changes were made to the charter of this company, this citizen, instead of the general director, became the manager of the organization. The closed joint-stock company, represented by the specified citizen, concluded with the same citizen - individual entrepreneur a contract for the management of a company with the establishment of a very significant contract price. The provision of services was confirmed by acts signed on behalf of the CJSC by its sole shareholder. The inspectorate excluded the amount of remuneration for the manager from expenses, citing the lack of economic justification, and charged the organization corporate income tax, penalties and a fine. The company challenged the actions of the tax authority, noting that in case of disagreement with the amount of expenses actually incurred, the tax authority had the right to apply the provisions of Art. 40 of the Tax Code of the Russian Federation, but do not exclude the entire amount of remuneration from expenses. The courts of first and appellate instances recognized the inspectorate's decision as unfounded.

However, the cassation court agreed with the inspection's decision. Having cited the provisions of Art. 252 of the Tax Code of the Russian Federation, the court indicated that, as follows from the definitions of the Constitutional Court of the Russian Federation dated April 8, 2004 No. 1669-O and dated November 4, 2004 No. 324-O, the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 12, 2006 No. 53, the use of civil law instruments is not must conflict with the general prohibition against the unfair exercise of rights by a taxpayer. The actions of a business entity must be conditioned by the achievement business purpose. In this case, the company acted not for the purpose of making a profit, but in the interests of the individual. The inspection's conclusion about the organization's non-compliance with the requirements of Art. 252 of the Tax Code of the Russian Federation is correct. By decision of the Supreme Arbitration Court of the Russian Federation dated August 31, 2007 No. 8064/07, the conclusions of the cassation instance were approved.

The second case we will discuss is not so clear-cut.

From the resolution of the Federal Antimonopoly Service of the Ural District dated 01.03.2007 No. Ф09-1151/07-С3 it follows that between joint stock company and the management company entered into an agreement on the transfer of powers of the sole executive body. The amount of remuneration specified in the contract has been increased several times additional agreements. During the audit, the tax authority concluded that there was no economic justification for increasing the cost of the services of the managing entity. The company was denied recognition of the corresponding expenses incurred by it with the accrual of corporate income tax, penalties and fines. The courts of three instances, agreeing with the inspectorate's decision, noted, in particular, the following.

According to Art. 252 of the Tax Code of the Russian Federation, expenses incurred reduce income received for profit tax purposes if they are economically justified, documented and related to the receipt of income. Economically justified expenses are expenses determined by the goals of generating income and corresponding to the principle of rationality and reasonableness. The courts have established and the case materials have confirmed the fact that there has been no increase in the volume of work performed by the management company while the taxpayer has simultaneously increased the remuneration paid to this company.

The certificate of the managing entity on the volume of services provided to the company in the relevant period contains only indications of the work performed for the company. The case materials do not contain evidence that any of these works are additional to previously carried out work. The increase in staffing levels of the management company and the positive financial and economic activity of the company during the audited period do not indicate an increase in the obligation to the taxpayer, but only confirm the proper fulfillment by the specified company of its contractual obligations. These circumstances indicate the lack of sufficient economic justification controversial expenses and the legality of applying sanctions.

The Supreme Arbitration Court of the Russian Federation did not find grounds for reviewing judicial acts in the manner of supervision, having adopted Resolution No. 4435/07 dated July 16, 2007, refusing to transfer the case to the Presidium of the said court.

We believe that the second case, despite its “completeness,” requires comments, which we will provide in the next section.

Possible counter-arguments

Analyzing the case under discussion, let us first of all pay attention to the absence, in our opinion, of obvious signs of inexpediency and reasonableness in the actions of the taxpayer. In this case, the conclusions of the inspectorate and the courts were based on the fact of an increase in the remuneration of the managing entity without providing evidence of an increase in the volume of work performed by it. At the same time, the reality and positive impact of these works on the financial and economic indicators of the managed company were not denied. The case materials do not reflect the dynamics of these indicators. However, even their stability may indicate the merits of the management company, taking into account the realities Russian economy. The question arises: why cannot the actions of a business entity aimed at encouraging the counterparty and the desire to stimulate its successful activities be defined as appropriate and reasonable?

These circumstances give reason to assume that the loss of the case could have been a consequence of the taxpayer’s insufficiently complete substantiation of his position when considering the case. If similar disputes arise, we do not exclude the possibility of applying the principled position of the Constitutional Court of the Russian Federation, reflected in the Determination of June 4, 2007 No. 366-O-P (hereinafter referred to as the Determination). Moreover, this position is based mainly on the conclusions made earlier by the same court, as well as on the position of the Plenum of the Supreme Arbitration Court of the Russian Federation. Let us present some aspects of this judicial act.

The Determination notes that the validity of expenses taken into account when calculating the tax base must be assessed taking into account the circumstances indicating the taxpayer’s intentions to receive economic effect as a result of real entrepreneurial or other economic activity. In this case, we are talking specifically about the intentions and goals (direction) of this activity, and not about its result. At the same time, the validity of the tax benefit cannot be made dependent on the efficiency of capital use. Tax legislation does not use the concept of economic feasibility and does not regulate the procedure and conditions for conducting financial and economic activities. Therefore, the validity of expenses that reduce income received for tax purposes cannot be assessed from the point of view of their expediency, rationality, efficiency or the result obtained. Due to the principle of freedom of economic activity, the taxpayer carries out it independently at his own risk and has the right to independently and solely assess its effectiveness and expediency.

The Definition also states that judicial review is not intended to verify economic feasibility decisions made by business entities, since due to the risky nature of such activities, there are objective limits on the ability of the courts to identify the presence of business miscalculations in it. Therefore, the norms of Art. 252 of the Tax Code of the Russian Federation do not allow their arbitrary interpretation. They require the establishment of an objective connection between the expenses incurred by the taxpayer and the focus of his activities on making a profit. Moreover, the burden of proving the unreasonableness of expenses rests with the tax authorities.

Particular attention in the Definition is paid to the provisions of paragraph 7 of Art. 3 of the Tax Code of the Russian Federation on the interpretation of all irremovable doubts, contradictions and ambiguities in acts of legislation on taxes and fees in favor of the taxpayer.

In similar situations, organizations can also use the explanations contained in the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 12, 2006 No. 53 “On assessment arbitration courts the validity of the taxpayer receiving a tax benefit” (hereinafter referred to as the resolution). Indeed, when income decreases by the amount of expenses expressed in the payment of the agreed remuneration to the managing entity, we are talking specifically about tax benefits.

It follows from paragraphs 3 and 4 of the resolution that a tax benefit may be considered unjustified, in particular, in cases where:

For tax purposes, transactions are taken into account not in accordance with their actual economic meaning or transactions are taken into account that are not due to reasonable economic or other reasons (business purposes);

The specified benefit was received without connection with the implementation of real business or other economic activity.

Paragraph 4 of the resolution also states that the following must be taken into account. The possibility of achieving the same economic result with a smaller tax benefit received by the taxpayer by performing other transactions provided for or not prohibited by law is not a basis for recognizing such a benefit as unjustified.

Paragraph 6 of the resolution contains a list of circumstances that in themselves cannot serve as a basis for recognizing a tax benefit as unjustified. Such circumstances include the interdependence of the parties to the transactions. In this regard, let us return to the last of the cases discussed. From the contents of the judicial act, it can be assumed that the management company and the company that entered into the relevant agreement with it could be interdependent persons. This assumption is based on the coincidence of individual elements of the names of these legal entities. At the same time, we note that the judicial act does not mention the identified interdependence of the parties to the transaction. It is possible that the tax authority and the courts deliberately ignored this circumstance. And that's why.

The inspection's claims were directed at the price of the contract, which, in the opinion of the tax authority, was unreasonably increased. Now let's remember about sub. 3 p. 2 art. 40 of the Tax Code of the Russian Federation, from which it follows that when a transaction is concluded by interdependent persons, the inspectorate has the right to check the correctness of the application of prices by the parties to this transaction. If this circumstance had been recorded by the tax authority, it should have, following the requirements of paragraph 3 of Art. 40 of the Tax Code of the Russian Federation, determine the market price of identical (homogeneous) services for managing an organization. Previously, we drew attention to the complexity of such a procedure, taking into account the specifics of this service. Therefore, the inspectorate could turn a blind eye to the fact of interdependence, preferring the easier route of applying sanctions.

Organizational and management services are consulting services to improve the organization of activities and the enterprise management system. Moreover, with qualified consulting services, the efficiency of an enterprise in our country increases on average by 2-3 times.

Our consulting services include services related to the formation of an enterprise mission, goal setting, optimization of organizational structure, development of strategy and creation of a strategic management system, optimization and regulation of business processes, development of organizational documentation, formation corporate culture– systems of self-government and self-organization of the team to achieve the goals of the enterprise.

What causes the need for organizational and management consulting services?

It is well known and confirmed by our President that “the efficiency of our enterprises is 3-4 times lower than that of enterprises in developed countries. What does this mean? On a national scale, low labor productivity is a globally uncompetitive economy. For a specific person, low labor productivity is bad job which cannot provide a good salary" [V.V. Putin. About our economic tasks // Vedomosti. - M., 2012. - January 30, No. 15 (3029)]. Exactly the same assessment of labor productivity was given by McKinsey Global Institute in 2009 (Effective Russia. Productivity as the foundation for growth). At the same time, it was noted that up to 80% of the backlog is due to ineffective organization of activities and ineffective enterprise management. And this shows the great capabilities of our enterprises, the great potential of our economy, moreover, even without any significant investment of resources. What is required is only the competencies and practical experience of developing the necessary organizational changes, especially the practical implementation of these changes. Moreover, these competencies and experience cannot simply be taken from foreign enterprises and introduce it into Russian ones (Arkady Prigozhin called this “organizational pathology”). Even take it from the advanced Russians and introduce it to the laggards. It is even impossible to analyze a specific enterprise and develop an effective organization and management for it and hand it over to it for implementation.

The result can only be obtained by combining the competencies and experience of enterprise specialists in the field of their business, and the competencies of specialists from specialized companies in the development and practical implementation of organizational changes, both in the formal sphere - in the field of formal directives, and in the informal sphere - in the field of organizational culture.

The problem is that until now there were no techniques necessary for this. For example, it is not even determined how to set the goal of the enterprise: some say that this is profit maximization, others, on the contrary, say that this is unacceptable. And without a goal, it is impossible to understand in which direction the enterprise needs to be developed and to build a strategy for achieving the goal.

Over the course of more than ten years of consulting practice and theoretical research, our company has successfully developed and tested improvements in operational efficiency both in complex and in individual areas: strategy, structure, business processes, organizational documentation. The goal of the enterprise in our methodology for conducting organizational and managerial consulting services is to achieve maximum socio-economic results of the enterprise by identifying and realizing its hidden potential. The goal of the enterprise should not be set “from what has been achieved”, and not voluntarily. However, the methodology for setting this goal, ensuring the practical achievement of this goal by the enterprise, was developed quite recently - this is (Vision-Paradigm-Model), based on (Social-Labor Relations - Organization). The STO paradigm includes a structured, necessary and sufficient system of key operating provisions that determine the organization of the enterprise, its management system, and its organizational culture, and all his activities, and the results of his activities. The ILM technique includes the following steps:

• Enterprise vision.
• The paradigm of the enterprise STOO "as is", developed on the basis of the vision "as is".
• The paradigm of the enterprise STO "as it should be", obtained by modeling key provisions based on the need for the enterprise to achieve the maximum achievable results. At the same time, the maximum achievable results themselves are determined.
• By comparing the key provisions of the STO paradigms “as is” and “as should be”, a system of necessary changes in the enterprise is determined to ensure that the enterprise achieves the maximum achievable results.
• Developing a strategy for making the necessary changes and achieving the maximum achievable results for the enterprise.
• Practical implementation of the strategy.

Moreover, each step ends with the approval of an official document, which ensures maximum transparency in the conduct of organizational and management consulting services.

In this area, we have carried out about twenty consulting projects and published more than fifty articles in ten leading management journals, for example:

• Enterprise management strategy is a modern paradigm. Magazine "Management Today". No. 3, 2017. Forthcoming.
• A complete model of organization management. Magazine "Management Today". No. 2, 2017. Forthcoming.

Currently, the current legislation of the Russian Federation allows for the possibility of concluding an agreement with an individual entrepreneur on the paid provision of services for managing the company. Meanwhile, regulatory authorities consider such agreements, as a rule, as an option for tax avoidance. In particular, claims are inevitable if an entrepreneur applies the simplified tax system and pays tax at a rate of 6%. Can they be challenged?

Introductory part.

The question of the legality of transferring the powers of the head of a legal entity to an individual - a manager registered as an individual entrepreneur - currently has no clear solution.

On the one hand, part 3 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation provides for liability for evasion or improper execution of an employment contract or the conclusion of a civil law contract, whereas in fact there are labor relations. A fine for offenses of this kind may be imposed:

• for officials - in the amount of 10,000 to 20,000 rubles;
• for legal entities - from 50,000 to 100,000 rubles.

On the other hand, the current legislation does not directly prohibit the conclusion of an agreement with an entrepreneur on the provision of paid services for the management of the company.

Consequently, formally, the organization has the right to transfer the powers of the executive body to the manager - an individual who has the status of an entrepreneur. The implementation of this right depends on the will of the organization itself. Moreover, such a transfer for an organization in equally both attractive and dangerous from a tax point of view.

What is the tax benefit?

Comparative characteristics of civil law and labor relations in the analyzed situation, for convenience, we present it in a table. Let’s assume that the contract establishes the manager’s remuneration in the amount of 50,000 rubles.

As we can see, with the second version of the relationship, the organization can significantly save on the payment of fiscal payments. Another undoubted advantage of this option is urgent nature relationship between the parties (which guarantees the absence of problems associated with the reduction or dismissal of an employee).

Meanwhile, tax authorities often consider the transfer of powers to manage an organization to an entrepreneur using the simplified tax system as a tax evasion scheme, the purpose of which is to avoid the responsibilities of a tax agent for personal income tax. At the same time, arbitration practice in such disputes is ambiguous. And given that since 2017, relationships in the field of insurance premiums are regulated by the provisions of Chapter. 34 of the Tax Code of the Russian Federation, it can be assumed that disputes about the legality of transferring powers to manage a company to an entrepreneur using the simplified tax system (due to a reduction in the amount of insurance premiums) will flare up with renewed vigor.

Examples of court decisions.

A striking example of a decision that is positive for the organization is the Resolution of AS PO dated January 22, 2015 No. F06-18785/2013 in case No. A65-8559/2014. The essence controversial situation, which arose in 2011, is as follows.

Based on the results of the inspection of the company, inspectors considered that the transfer of powers of its director to an entrepreneur (one of the company’s participants) on the basis of an agreement paid provision services for managing the current financial and economic activities of the company were carried out for the purpose of evading personal income tax (claim amount - 669 thousand rubles).

However, the courts (all three instances) did not see in the company’s actions a scheme aimed at obtaining unjustified tax benefits. In doing so, they gave the following arguments.

Society in accordance with Art. 42 of Law No. 14-FZ has the right to transfer, under an agreement, the exercise of the powers of its executive body to the manager. Such transfer of powers to the manager is the prerogative of the company, since the resolution of this issue is within the competence of the general meeting of the company’s participants or its board of directors (supervisory board), if the latter is provided for by the charter (clause 2, clause 2.1, article 32, clause 4, clause 2, art. 33 of Law No. 14-FZ).

The coincidence of the powers of the general director with the powers of the manager is due to their performance of the same functions in managing the company, which directly follows from Art. 40 and 42 of Law No. 14-FZ. This circumstance cannot prove the imaginary nature of the agreement on the transfer of powers of the sole executive body to the manager.

The arbitrators of the AS PO also emphasized that the mere registration of an entrepreneur to enter into a disputed agreement does not indicate the illegality of the actions of the parties to the transaction. In turn, having the status of an entrepreneur entails not only the possibility of applying a 6% tax rate (of course, if the entrepreneur applies the simplified tax system with the object of taxation “income”), but also increased liability for obligations.

The interdependence of the company and the manager (the latter, we recall, was one of its participants), according to the judges of the AS PO, does not clearly indicate that the tax benefit received was unjustified. The latter can only be considered unfounded if interdependence influenced pricing.

Note:

The price of a contract for the provision of paid services includes compensation for the contractor’s costs and the remuneration due to him (Part 2 of Article 709 of the Civil Code of the Russian Federation). Income received from the provision of paid services is included in the “simplified” tax base. According to the Ministry of Finance, compensation for the manager’s costs incurred in the exercise of the powers of the sole executive body should be included in the income taken into account when calculating the “simplified” tax (see Letter No. 03-11-11/19830 dated 04/28/2014).

At the same time, different conclusions in a similar situation were made by the judges of the FAS UO in Resolution No. F09-4929/12 of June 11, 2012 in case No. A50-19343/2011. In this dispute, tax authorities were able to prove that the powers of the sole executive body of the company were transferred to an individual entrepreneur in order to obtain an unjustified tax benefit. The outcome of the dispute was influenced by the following circumstances of the case:

• the registration of the manager as an individual entrepreneur was carried out just a few days before the company made a decision to transfer the powers of the manager to him and was terminated immediately after the termination of the agreement on the provision of paid services for the management of the company;
• the entrepreneur did not show due business activity- all actions related to registration, making changes to the Unified State Register of Individual Entrepreneurs, submission tax returns carried out by the company's lawyer in the absence of payment for services rendered by the entrepreneur;
• the amount of income paid to the manager is as close as possible to the income limit that allows the use of the simplified tax system;
• the entrepreneur had no other clients besides the company;
• the contract for the provision of management services with the individual entrepreneur contained signs of an employment relationship;
• The manager’s work schedule coincided with the work schedule of the company’s employees.

Taking into account these circumstances, the courts came to the conclusion that the agreement on the transfer of powers of the sole executive body to the manager, concluded between the company and the entrepreneur, is a labor agreement and was drawn up in order to obtain an unjustified tax benefit.

What's the result?

So, the conclusion of an agreement on the transfer of powers of the sole executive body of the company to the entrepreneur from the point of view current legislation is not illegal, and the exercise of powers of the sole executive body is an illegal business activity. This agreement by its nature is considered a mixed civil law agreement, since it contains certain elements of agency agreements, trust management property, paid services.

Moreover, from paragraphs. 2 clause 2.1 art. 32 of Law No. 14-FZ it follows that not any citizen can be a manager, but only one who is an individual entrepreneur. After all entrepreneurial activity without the formation of a legal entity, in contrast to work for hire, involves independently organized initiative activity of the subject at his own risk without subordination to the rules labor regulations adopted in a particular organization. In other words, the legislator in the analyzed situation initially intends to establish not labor, but civil law relations.

In this case, the entrepreneur (see Resolution of the Ninth Arbitration Court of Appeal dated June 5, 2017 No. 09AP-19171/2017 in case No. A40-11416/2016):

• is in civil legal relations with the company on the basis of a paid service agreement;
• is referred to as a “manager” and is designated as a “manager” in contracts concluded on behalf of the company with counterparties, financial and service documentation, as well as in business correspondence;
• has the right to receive payment for services rendered by him as the manager of the company;
• acquires rights and obligations to manage the current activities of the company on the basis of Law No. 14-FZ, other legal acts of the Russian Federation and the agreement.

The relationship between the company and the manager, regulated by a contract for the provision of services, is not subject to the labor legislation of the Russian Federation. It follows from Law No. 14-FZ that the action labor legislation applies only to relations between the company and the sole executive body of the company (director, general director) (but not the manager) and only to the extent that does not contradict the provisions of the said law.

Let us remind you that distinctive characteristics labor relations are (Articles 15, 16, 56 - 59 of the Labor Code of the Russian Federation):

• hiring an employee to a position provided for in the staffing table or assigning a specific job function to him;
• issuance of an order for his employment indicating the position, salary and other essential working conditions;
• employee remuneration tariff rates or official salary(that is, the process of performing the labor function itself is paid, and not its final result);
• subordination of the employee to internal labor regulations.

In this regard, in the contract with the manager, in our opinion, it is inappropriate to include such elements of the employment contract as the systematic daily performance of a certain type of work by the contractor, fixed wages in the form of an hourly rate (otherwise there is a high probability of re-qualification by tax authorities and courts of the civil contract in labor). Moreover, by virtue of paragraph 5 of Art. 38 of the Tax Code of the Russian Federation, the results of services provided for company management do not have a unit of measurement, quantitative volume and price of a unit of measurement. The manager is given the entire volume (and not part) of the powers of the sole executive body, therefore he is also remunerated for managing all current activities without reference to any specific volume of powers performed.

In the above judicial acts, the claims of the controllers arose only in terms of personal income tax, since from 2010 to 2017, extra-budgetary funds were involved in the administration of insurance premiums. Currently, the corresponding powers have again been transferred to the tax authorities (Chapter 34 of the Tax Code of the Russian Federation). And this circumstance, in our opinion, will only aggravate the situation - now they have an additional incentive to prove that the transfer of powers of the sole executive body of the company to the entrepreneur did not have a business purpose and was feigned. Similar disputes have already arisen before (see, for example, resolutions of the Federal Antimonopoly Service dated 02.14.2013 in case No. A65-15483/2012, FAS UO dated 09.10.2007 No. F09-7158/07-S2 in case No. A71-226/07, in which they talked not only about personal income tax, but also about the unified social tax - the predecessor of the current insurance premiums). Attention should also be paid to the Resolution of the Arbitration Court of the Far Eastern Military District dated November 28, 2017 No. F03-4497/2017 in case No. A73-3767/2017, in which the arbitrators agreed with the arguments of the auditors from the Pension Fund of the Russian Federation that the agreement concluded by the company with the entrepreneur on the simplified tax system on the transfer to him the authority to manage the company was, in fact, an employment contract. Therefore, insurance premiums had to be calculated on the amount of payments. In support of their position, the judges pointed out that the contract did not define the terms for the provision of services characteristic of civil law relations (start date and end date), the possible number of stages, or the result achieved by the contractor upon completion of the provision of services. On the contrary, it spelled out the duties characteristic of the labor function that this entrepreneur performed as the head of this company, and not as a manager.

Today, companies have the right to enter into an agreement for the provision of company management services with individual entrepreneurs for a fee. However, despite the legality of such relationships from the point of view of current legislation, regulatory authorities continue to consider such transactions as a method of tax evasion. It will definitely not be possible to avoid claims from the tax office if the individual entrepreneur uses the simplified taxation system (USNO) “Income” (6%). In this article we will try to figure out whether it is possible to challenge the department’s claims.

Is it possible to conclude an agreement for the provision of company management services with an individual entrepreneur?

There is currently no clear solution to the issue of the legality of concluding an agreement on transferring the powers of a company manager to an individual registered as an individual entrepreneur. Formally, an enterprise has the right to appoint an individual entrepreneur as manager under a contract, although such a decision is dangerous from the point of view of paying taxes.

A direct ban on signing an agreement with an entrepreneur for the provision of management services legal entity for a fee, current laws do not contain. But, on the other hand, part 3 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation provides for liability for evasion of registration (improper execution) of an employment contract (conclusion of a civil law contract) at a time when there is actually an employment relationship:

• a fine of 10 to 20 thousand rubles for officials;
• from 50 to 100 thousand rubles fine for legal entities.

Agreement for the provision of company management services with an individual entrepreneur - what is the tax benefit?

To understand what the tax benefit is when concluding an enterprise management agreement with an individual entrepreneur, let us present and analyze comparative characteristics labor and civil law relations (let’s take the fee for performing management functions equal to 100 thousand rubles):

After a simple analysis, we can draw the following conclusions:

1. By concluding a civil contract with an individual entrepreneur, the company incurs much less expenses for paying fiscal payments.
2. The urgent nature of the relationship between the company and the entrepreneur (the GPC agreement always implies a limited validity period of the agreement) guarantees the absence of problems with the dismissal or layoff of a worker.

How to competently conclude an agreement for the provision of company management services with an individual entrepreneur

An agreement with an individual entrepreneur for the provision of management services is by its nature a mixed GPC agreement, because in it you can find signs of contracts for the provision of paid services, trust management of property, and orders. It is permissible to sign an agreement with an individual entrepreneur, the subject of which is the transfer of powers of the manager, because:

• the exercise of powers of the sole executive body is not a prohibited business activity;
• the law does not prohibit legal entities from transferring the powers of the sole executive body of an LLC to an individual entrepreneur under a contract;
• pp. 2 clause 2.1 art. 32 of Federal Law No. 14-FZ says that the function of a manager can be performed by an individual entrepreneur, and not any citizen (i.e., the law presupposes the emergence of civil law relations, and not labor relations, since the individual entrepreneur independently organizes economic activity at your own risk without submitting to the existing labor regulations at the enterprises).

Important! To ensure that judges in the event of proceedings with the tax service do not re-qualify the GPC agreement as a labor agreement, the terms of the provision of services, the result, and the possible number of stages of cooperation should be determined by the provisions of the agreement.

What points to pay special attention to (based on judicial practice)

When concluding an agreement for the provision of management services with an entrepreneur, it is important to ensure that the relationship does not have signs of an employment relationship (described in the text of Articles 15, - Labor Code of the Russian Federation):

• It is impossible for a manager to obey the internal labor regulations of the enterprise.
• The work of the manager should not be paid according to the official salary or tariff rates (the result of the work should be paid, and not the process of performing duties).
• An Order for employment in the specified position must not be issued; the size cannot be specified. wages and other working conditions.
• You cannot accept an individual entrepreneur as a manager and assign specific labor functions to him.

In such contractual relations between the company and the individual entrepreneur:

• Acquires rights and responsibilities for managing the current activities of the organization (based on Federal law No. 14-FZ, agreement and other legal acts).
• Receives the right to monetary compensation for his services.
• Referred to as a “manager”, designated as such in business correspondence, contracts concluded on behalf of the organization with counterparties, as well as in official and financial documentation.
• Is in a civil law relationship with the LLC on the basis of an agreement on the provision of paid services.

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