The Supreme Court upheld the demand of the tax authorities and recognized the contracts of the company with the individual entrepreneur as labor. As a result, one company received additional taxes and now it must comply labor Code, although it entered into contracts for the provision of services. According to the documents, she paid the individual entrepreneur for services, but for the tax it turns out that she paid salaries to employees. And that means income tax and contributions to funds.

All individual entrepreneurs and those who work with them under civil law contracts need to be more careful. Maybe tomorrow the tax office will come to you and say that you are not a customer and contractor, but an employer and employee.

What was the matter there?

One company entered into contracts with nine entrepreneurs. For many years they provided various services: they processed scrap metal, repaired cars, kept accounts and dealt with logistics.

Ekaterina Miroshkina

economist

No one wrote job applications, asked for paid sick leave or went on vacation. Did not have work books and staffing. Each entrepreneur paid for himself a single simplified tax and fixed contributions. It is legal.

But then the tax office came and said: you are all not entrepreneurs, but employees. And the firm actually works with you to save on taxes. And you also want to save on taxes, and contracts as individual entrepreneurs have been formally concluded.

Each entrepreneur explained that he did not want to conclude an employment contract, he worked for himself and was generally against labor relations with your business partner.

The company also explained that it cannot pay personal income tax for individual entrepreneurs who are on a simplified tax system and want to work under a civil law contract. And even if he wants to, then these 13% will have to be withheld from entrepreneurs who absolutely legally and officially pay 6% to the budget. That is, this will not affect the company's expenses, and people will receive less than they should, and it is not clear why.

The tax authorities fined the company 280,000 rubles and charged almost 800,000 rubles in penalties. The statute of limitations for some fines has passed, but the fines were ordered to be paid. And the company must withhold from the entrepreneurs additionally accrued income tax. If it doesn't work out, the tax authorities will charge you. It was decided not to take into account the fact of paying a single tax on simplified taxation.

On what basis did the tax authorities recognize the contracts as labor contracts? So is it possible at all?

Under the law, a civil law contract can be recognized as a labor contract. This is done at the request of the employee, on the basis of an order from the supervisory authority or through the court. May apply to court Labour Inspectorate to calculate co-pays, allowances, and allowances. Or, for example, tax: she wants to collect income tax, insurance premiums, penalties and fines.

It is impossible to conclude civil law contracts instead of labor contracts. If the parties understand in advance that they are not a customer with a contractor, but an employer and an employee, they are obliged to conclude an employment contract.

If the court agrees with the tax, the contract for the provision of services is recognized as labor backdating. And taxes and penalties will be charged additionally for the entire time of cooperation with such an entrepreneur. The entrepreneur himself will not be good either.

Does this mean that any civil law contract can be recognized as a labor contract?

No, not any. The employment contract has formal features that the tax authorities are looking for and the court takes into account.

A contract with an individual entrepreneur can be recognized as labor if this entrepreneur:

• performs the same duties every day;
• receives a fixed or hourly pay every month;
• involved in the production process;
• does what a person in a specific position in the state should do: an accountant, driver, logistician or shop worker;
• works where the company is located and uses its equipment;
• adheres to the work schedule;
• bears financial responsibility.

And most importantly, an individual entrepreneur under a civil law contract works for his own benefit in order to make a profit himself. And the employee under an employment contract performs duties so that the company receives profit.

This is an indicative list. They can also take into account the testimony of witnesses and any other evidence. If the tax authority suspects that the company has disguised labor relations under an agreement with an individual entrepreneur, then it will go to court and charge additional taxes to all participants in the cunning scheme.

I am an entrepreneur, I pay 6% of my income and I don't want problems with the tax. What should I do?

Get your contracts right. Do not use templates from the Internet and carefully describe the tasks that you perform. Try to exclude signs by which the contract can be recognized as labor. If you can't do it yourself, contact a lawyer.

The tax authorities and the court are studying all the circumstances. In the situation described, the company officially had only one person, and reporting for all individual entrepreneurs was submitted simultaneously through one data operator.

If you work with several companies, provide them with different services and do not receive payment to your current account at the same time, you are most likely not in danger.

But if you have one regular customer who transfers monthly payments by perpetual contract, the tax can find fault. In fact, you can do nothing: it so happened that you serve one large project, refused other orders and do the same work for a fixed amount. This is legal: you have the right to work as an individual entrepreneur and not pay personal income tax. But you may have to prove your case in court.

Business relations are fixed with the help of relevant documents - contracts, agreements, contracts. This also applies to the activities of individual entrepreneurs. They can record cooperation in this way not only with companies or individuals, but also with the same private merchants. For example, an employment contract between an individual entrepreneur and an individual entrepreneur is often signed, involving the hiring of one entrepreneur by another. Consideration of the documentation of cooperation between two individual merchants is the subject of our material.

Features of the contract between private entrepreneurs

It is worth highlighting a number characteristic features, which will allow isolating such documentation from the general series. They look like this:

• such an agreement is always concluded between individuals who are individual merchants. No other option is provided;
• in addition, this paper is always issued only for the implementation entrepreneurial activity. For example, is . This is required in order to be able to continue working in the market. For example, services for the transportation of goods involve the delivery of products. If this is not done, the merchant will have nothing to trade. It turns out that one side earns by doing some work that is needed for the functioning of the second person. As you can see, both the carrier and the distributor of products earn from entrepreneurship;
• Another interesting feature is the compensatory nature of this document. It always provides for payment for the fulfillment of obligations.

These are the features that you should pay attention to. Other signs can be distinguished, but what is written above is quite enough to identify this type of document.

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The procedure for concluding an agreement between private entrepreneurs

This process does not have any characteristic properties. Its essence boils down to the fact that one side offers the other cooperation on certain conditions. If the terms of interaction seem favorable, the corresponding document is signed. For example, a lease agreement between an individual entrepreneur and an individual entrepreneur is often found. This paper is evidence that one entrepreneur provides another for temporary use of some premises for a fee.

There are situations when an agreement is not reached immediately. If such a case occurs, the parties enter into negotiations. They settle everything contentious issues and then draw up a contract. By the way, this option of resolving disagreements is not as common as it might seem. As a rule, contracts are standard. In other words, they do not imply any changes. The parties either sign such documents or do not start cooperation. That is why you can not engage in the development of this official paper. It can be found ready-made. In particular, a sample contract is available on our resource.

You can do otherwise. For example, such a document will help to draw up in any company specializing in providing legal services. Remember that this approach will require additional financial costs. It is still better to use the first option. A contract form found on the Internet can always be shown to lawyers who will conclude on the degree of compliance of this paper with current legislation. Such a check will cost an order of magnitude cheaper.

Some online services for individual entrepreneurs have a convenient interface for working with contracts. Here, for example, is how it is implemented in the Accounting-Kontur system (formerly Elba):

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Hiring one entrepreneur by another

I would like to talk about this form of cooperation in particular. The fact is that labor relations most often become the cause of various disputes. In order not to meet in court, it is better to immediately understand the main points. This will avoid a lot of problems. In addition, not everyone knows whether an individual entrepreneur can work under an employment contract. This question is clarified quite often, so we publish information on this subject in our article.

Generally speaking, there is nothing special about hiring a sole trader. The procedure looks the same as in the case of hiring a company. For this operation to be recognized as legal, a number of documents should be available. We will not consider it more closely, since this is not the topic of our material. Let's just say that this list also contains an employment contract with an individual entrepreneur, drawn up in 2 copies. One of them remains with the employer, and the other is given to the hired merchant.

An individual entrepreneur accepting another individual entrepreneur for some position is obliged to reckon with his legal rights. In particular, the period of illness must be paid, leave must be granted, etc.

There are a number of other significant points. They relate to duties, working conditions, responsibility, etc. All these features must be included in the employment contract between individual entrepreneurs and individual entrepreneurs. Much depends on how this document was worked out before signing. In particular, the more meaningful it is, the easier it is to defend your rights in court.

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Points that must be reflected in the contract

Like any other similar paper, this document involves a number of mandatory elements. They should not be forgotten, since the absence of such information makes the document illegal. The same can be said about cases where not all such conditions are indicated. The list of these data should be remembered in order to avoid unpleasant mistakes. Here is the list:

• surnames, names and patronymics of the parties to the contract;
• information from documents proving the identity of participants in labor relations;
• TIN of entrepreneurs;
• labor function. In other words, it is necessary to indicate what is required from a particular hired employee;
• date of signing the employment contract. This prop is always present. Do not confuse it with an expiration date, which may or may not be specified. By the way, if it is absent, the document is considered unlimited;
• salary, possible allowances and bonuses;
• mode of operation;
• information relating to social security.

This list can be made more extensive. For example, if we are talking about working in special conditions, then they must be negotiated. Suppose an IP agreement is concluded with an IP driver who will work on his own car. This moment is significant, therefore it is always documented. Very often, such cooperation involves additional payments related to the operation of the vehicle.

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Change and termination of the contract

The current legislation indicates that this document can be amended only if the parties have mutually agreed. The same can be said about the termination of the performance of obligations under the contract.

Amendment and termination of this document unilaterally is possible only in case of a serious violation of the contract, changes in working conditions and other cases provided for by the current regulatory legal acts. Even in the presence of the facts indicated above, the final decision is made by the court. It is he who makes it legal to refuse to cooperate or make adjustments. The exception is situations where a compromise solution is reached that suits both parties.

For example, an employment contract was concluded between an individual entrepreneur and an individual entrepreneur. In the process of its implementation, working conditions have changed significantly. So, the distributor had to not only offer the product on the market, but also be responsible for its acceptance. This moment was not specified initially. The seller was not happy with this state of affairs. He reported this to the employer, who agreed to terminate the employment relationship ahead of schedule. One can easily imagine another ending, involving going to court.

Small businesses often provide services to the general population, various institutions. In such cases, the signed contract becomes insurance for the customer and for the individual entrepreneur. The document describes the rights with the obligations of the parties, deadlines and other working conditions.

Features of concluding contracts with an individual entrepreneur

By law, IP is allowed to carry out commercial activity. Information about it should be contained in the USRIP (single state register individual entrepreneurs) and in the tax certificate of a businessman. The procedure for concluding a contract with an individual entrepreneur differs little from signing an agreement with legal entities:

1. Both parties should formulate their own requirements as specifically as possible. If the subject of the agreement is the sale and purchase of any property, the document must contain records of its condition, method of transferring money, etc.
2. An individual entrepreneur is obliged to provide a guarantee for the work performed or the products delivered. Information about it should be in the document.
3. A businessman can draw up contracts on his own, but it is better to entrust this to a lawyer. If the customer and the contractor have a dispute, with an ambiguous interpretation of some points, the court may invalidate the agreement.
4. The individual entrepreneur and the client have the right to demand from each other any additional documents confirming the financial or legal status of the parties to the transaction. Copies or originals of extracts, certificates are attached to the agreement.
5. In case of violation of one or more clauses of the agreement, sanctions will be imposed on all property of the entrepreneur (apartments, cars, etc.) until further clarification of the circumstances. If a businessman is unable to pay a fine or compensate for expenses incurred through his fault, then the property of a citizen will be sold, and part of the profit from the transaction will be used to pay off the debt.

Legal regulation

According to Article No. 161 Civil Code RF civil law agreement and any other transactions between business entities are concluded in a simple written form. This law applies to all contracts. Under Russian law, IP is not formally considered as entity, therefore, the process of concluding agreements between a businessman and citizens or institutions is regulated by Article No. 23 of the Civil Code of the Russian Federation.

How to draw up an agreement between an individual entrepreneur and an LLC

The procedure for issuing this document is practically no different from issuing a standard contract between two large institutions. It contains the details of the parties, the date of signing, a detailed description of the subject of the agreement. In case of doubt about the correctness of the contract, you can get an example of a contract with an individual entrepreneur in any law firm. The agreement, regardless of the specifics of the work, must contain:

• subject of the contract;
• preamble (general introductory part);
• obligations of the parties, their rights;
• duration of the agreement;
• contract amount;
• methods and terms of payment, penalty in case of delay in payments or non-fulfillment of part of the terms of the contract;
• responsibility between participants;
• the procedure for terminating the contract;
• rules for amending the agreement.

List of required documents from IP

Agreement with individual entrepreneur is subject to the applicable taxation system. When the subject of the transaction is a service, the parties must draw up an act. Before manufacturing, supplying products or carrying out any other type of activity, a small business entity is required to submit the following documents:

• photocopies of the main pages of the passport;
• an extract from the register;
• a copy of the business TIN (individual taxpayer number);
• photocopies of documents on registration as an individual entrepreneur and on entering information into the Unified State Register of Legal Entities.

Types of contracts with individual entrepreneurs

The document is classified depending on the type of work performed and legal status client. Citizens should be aware that an individual entrepreneur can sign an agreement with both one customer and two or more. According to the law, all customers who will accept the result of a service or product must be recorded in an official form. You can sign with an individual entrepreneur the following types contracts:

• for the provision of services;
• deliveries between individual entrepreneurs and LLC;
• between IP and individual;
• rent;
• contracting;
• agency (when the entrepreneur represents the interests of the client);
• for the transportation of people or goods;
• managerial;
• loans (with and without accrued interest).

For the provision of services

This type of agreement is considered one of the most common. A contract for the provision of services is suitable for many situations. It can be issued not only if the individual entrepreneur undertakes to perform any work, but also when renting out property, providing a cash loan. The agreement can be accounting, transport, legal, intermediary. The contract for the provision of IP services contains the following information:

• a detailed description of the subject matter of the agreement;
• the term for the performance of the work provided for by the concluded document;
• the procedure for accepting and paying for the services rendered;
• fines provided for the inadequate quality of services rendered.

Supply agreement between IP and LLC

The transaction in this case has a simple written form. The parties must agree essential conditions agreements: the type of product, its quantity, the material used to manufacture the product, etc. The delivery time of the products is important, but without it the contract will not be considered invalid. If the date of transfer of the order is not set, the customer will have to wait until the goods appear in the IP warehouse. The document, in addition to the above conditions, must contain:

• range and quality of products;
• quality assurance;
• procedure and method of payment;
• terms of acceptance of goods;
• the responsibility of the parties;
• the procedure for the transfer of rights to products and the risks of its loss or damage from an individual entrepreneur to an LLC.

Between individual entrepreneur and individual

The purpose of this type of document is to consolidate the agreement concluded between a citizen and a businessman. Agreements between an individual entrepreneur and an individual can be concluded orally if the transaction amount is less than 10,000 rubles. In all other cases, a written contract is drawn up, which will contain:

• details of both parties;
• the subject of the agreement;
• place of work;
• amount, payment schedule;
• the responsibility of the parties;
• Bank details;
• terms of termination of the contract;
• conditions for assessing the quality of work performed;
• signatures.

Lease contract

According to this document, certain movable or immovable property is transferred for temporary use to a specific person or company. The form must contain the quantity and quality of the leased objects. The agreement must contain the amount of payment for the temporary use of the property. The lease agreement with the individual entrepreneur contains:

• Full names of the parties.
• Description of the property. The full name of the object, the address of its location, and the area are indicated.
• Estimated value of the leased property.
• The condition of the object at the time of signing the agreement and depreciation (depreciation).
• Liability for damage to property during rental.
• Obligations of the parties to repair, maintain the property in good condition.
• Ways, forms of calculation.
• Regulation on the possibility or impossibility of transferring property for sublease.
• Conditions for early termination of the agreement.

contract with IP

Institutions and individuals often hire PIs. An individual entrepreneur with such legal relations acts as the main contractor. He does one-time work for the client. A businessman can involve other small firms in the performance of tasks, but he will be responsible for their mistakes. The customer undertakes to accept the result of the services provided and pay the amount specified in the contract. The contract with the IP contains:

• Detailed description work to be performed.
• Deadline for assignments. The budget allocated for the implementation of the goals.
• The procedure for calculating fines for non-compliance with the tasks set in deadlines. This will help to quickly resolve disputes with the contractor without involving the court.
• The procedure for calculating the penalty due to the fault of the customer in the absence necessary materials, object access, etc.

The procedure and rules for drawing up an employment contract between an individual entrepreneur and an employee

Individual entrepreneurs are allowed to be employers for individuals. Since 2019, individual entrepreneurs have been considered micro-enterprises, so they can use a standard employment contract when hiring a citizen for work. The contract is open-ended and fixed-term. The last one is for 5 years. After the expiration of the specified period, the employee is either fired or re-prolonged the contract. The following items must be included in a formal employment contract:

• the name of the employer;
• full information about the employee, including his permanent place of residence;
• passport details of the employer and employee;
• labor functions of the employee;
• the amount of the salary (according to the current legislation, it must be not less than the regional minimum size wages, which are often higher than the federal minimum wage);
• start time;
• duration labor activity indicating the time of rest;
• guarantees, compensations;
• individual taxpayer number (TIN);
• validity period (for fixed-term contracts);
• date of conclusion of the employment agreement;
• the place where the contract was signed.

The SP may amend the terms and conditions labor contract. The employer must notify the employee within 14 days. The businessman keeps the duplicate notice for himself. The contract will be invalidated if the employer unilaterally changes any of the terms of the previously signed contract. In such a situation, an entrepreneur can be held criminally liable for infringing on the rights of an employee.

Video

The Supreme Court of the Russian Federation, in Ruling No. 302-KG17-382 dated February 27, 2017, recognized the conclusion of service contracts, where the performers had the status of an individual entrepreneur, as a tax scheme. The news immediately spread on the Internet, and not everyone understood the essence of the matter. Some, especially cautious, businessmen decided that it was no longer possible to conclude such agreements in principle. In fact, the situation is not at all so clear cut.

The Supreme Court did not prohibit the conclusion of contracts for the provision of services and performance of work by contractors registered as individual entrepreneurs, but only ruled in a specific case where labor relations were replaced by civil law ones.

The question of the possibility of ordering some work or services from the contractor without hiring him on the staff has already been discussed many times at various levels. Even the Constitutional Court spoke on this topic, moreover, the highest instance was in favor of the fact that the customer and the contractor have the right to independently choose the nature of the registration of their relations.

From the Definition of the Constitutional Court of May 19, 2009 N 597-О-О: reimbursable contract, there can be both an employment contract and civil law contracts (contracts, assignments, paid services, etc.), which are concluded on the basis of a free and voluntary expression of the will of interested subjects - parties to the future contract.

What is the essence of the problem

Why, then, do the tax authorities so often recognize civil law contracts with performers (and not only with individual entrepreneurs, but also with ordinary individuals) as illegitimate?

The reason, as always, is in money, in the amounts that go to the budget. Judge for yourself - when registering an employee in a state under an employment contract, the employer pays insurance premiums for him in the amount of 30% of the amounts paid (if there is no right to apply reduced rates). Plus, 13% in the form of personal income tax is withheld from the employee.

If the performer is not accepted into the state, but he is an ordinary individual, then the situation changes slightly for the budget. Personal income tax from remuneration is withheld in the same amount - 13%, insurance premiums for mandatory pension and medical insurance, the customer, just as in the situation with the employer, pays at his own expense. The only difference is in contributions to the Social Insurance Fund, they need to be paid only if the civil law contract provides for such a condition.

For the customer of services or works to conclude GPC agreement with an individual is more profitable than taking him on staff. Here, savings arise not only on contributions to the FSS, but also on vacation pay, because the performer does not need to be sent on paid leave. And, in addition, under a civil law contract, the contractor is not entitled to sick leave, overtime pay, overalls, the creation of a safe workplace, the provision of tools and materials, and so on.

But the biggest savings on taxes and contributions are obtained if the parties (customer / employer and contractor / employee) enter into a relationship as independent business entities. In this case, the customer is not responsible for how the contractor fulfills his obligations to the budget for the payment of taxes and fees. Plus, the contractor himself, if he works on the simplified tax system Income, transfers to the budget not 13% of personal income tax, but only 6% of income.

Formally, the IP performer does not violate laws, because he is legally registered and honestly pays taxes and fees for himself. “But you could pay more!” - decides the FTS. And, therefore, it is necessary to make sure that civil law relations are transferred to the labor plane. For this, even the most insignificant contractual conditions are used, which can be interpreted as inherent in an employment contract.

How not to do

Of course, employers are also not always white and fluffy and sometimes think about their own benefit, bypassing the law. In the case considered by the Supreme Court, there was a situation where the customer deliberately registered his employees as individual entrepreneurs in order to reduce the tax burden. Moreover, in the state there was only a single employee (manager), and the remaining 19 employees of the organization for the reception of scrap metal were entrepreneurs on the simplified tax system Income.

At the same time, all “independent business entities”, judging by the terms of the contracts with them, observed the work schedule with a lunch break, obeyed the manager, were financially responsible, performed duties in accordance with their job positions and specialties (cashier, logistician, foreman, locksmith) . Moreover, the tax reporting for these individual entrepreneurs was handed over by a representative of the customer by proxy.

Here, indeed, it is difficult to accuse the Supreme Court of a biased attitude towards business, because there was a substitution of real labor relations for civil law ones. And for this, Article 5.27 of the Code of Administrative Offenses of the Russian Federation provides for a fine of up to 200 thousand rubles, plus additional taxes and contributions.

Real differences between labor and civil law relations

The ruling of the Supreme Court is a good illustration of the fact that not all labor functions can be transferred to the status of services or contract work. The activities of the contractor under a civil law contract must necessarily have a measurable result, adopted by the act. Moreover, the customer cannot manage the activities during which this result is expected to be achieved, but has the right to accept individual stages of work or services.

This is about the essence of the relationship. But there are still many cases when the relationship between the customer and the contractor in reality was not labor, but at the same time, the text of the contract contained conditions characteristic of labor contracts. That is, there was a discrepancy between the content and form of legal relations, and the tax authorities used this for their own purposes.

The table shows the main differences between labor and civil law relations and their registration in contracts.

Thus, contracts with individual entrepreneurs can still be concluded, but they must formalize real-life civil law relations and not contain conditions typical for labor relations.