A report that will justify the costs of company management services. Agreement for the provision of services for the management of a legal entity by a management company Accounting for income from the provision of management services

Today, companies have the right to conclude an agreement for the provision of company management services with individual entrepreneurs for a fee. However, despite the legality of such relations from the point of view of the current legislation, regulatory authorities continue to consider such transactions as a way to evade taxes. Claims from the tax authorities will definitely not be avoided if the individual entrepreneur applies the simplified taxation system (USNO) "Income" (6%). In this article, we will try to figure out whether it is possible to challenge the claims of the department.

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

A clear solution to the issue of the legality of concluding an agreement on the transfer of powers of the company manager to an individual, registered in the status of an individual entrepreneur, currently does not have. Formally, an enterprise has the right to appoint an individual entrepreneur under an agreement, although such a decision is dangerous from the point of view of paying taxes.

Direct prohibition on signing an agreement with an entrepreneur on the provision of management services legal entity for a fee, the 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 for evading execution (improper execution) of an employment contract (conclusion of a civil law contract) at a time when there is actually an employment relationship provides for liability:

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

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

In order to understand what the tax benefit is when concluding an enterprise management agreement with an individual entrepreneur, we present and analyze comparative characteristic labor and civil law relations(we take the fee for the implementation of managerial functions equal to 100 thousand rubles):

Indicators	Relations within the framework of a civil law contract with an individual entrepreneur	Labor relations with an individual
Subject of the contract	Provision of services by the entrepreneur (for example, company management)	Performance by an individual (employee) of the agreed labor functions
Validity	Fixed term (specified in the contract)	Definite in time (fixed-term employment contract). Unlimited in time (perpetual contract).
Duties of a tax agent	Since the individual entrepreneur pays the income tax himself, the employing company does not have the duties of a tax agent	The employer calculates and withholds personal income tax from the earnings of a subordinate and transfers the amount to the budget
USNO tax - 6000 rubles. (100,000 rubles x 6%); contributions to off-budget funds are paid by the individual entrepreneur.	personal income tax - 13,000 rubles. (100,000 rubles x 13%); insurance contributions to the Pension Fund - 22,000 rubles. (100,000 rubles x 22%); contributions to the FSS - 2900 rubles. (100,000 rubles x 2.9%); contributions to compulsory medical insurance - 5100 rubles. (100,000 rubles x 5.1%); contributions to prof. diseases and industrial injuries (for example, hazard class V - 0.6%) - 600 rubles. (100,000 rubles x 0.6%).
TOTAL	6,000 rubles (paid by the individual entrepreneur)	30 600 rub. (13,000 rubles withheld from the employee's salary)

After a simple analysis, the following conclusions can be drawn:

1. By concluding a civil law 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 assumes a limited duration of the agreement) ensures that there are no problems with the dismissal and reduction of the worker.

How to competently conclude a contract 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, since in it you can find signs of contracts for the provision of services for a fee, trust management of property, assignments. It is permissible to sign an agreement with an individual entrepreneur, the subject of which is the transfer of powers of the manager, because:

• exercising the powers of the sole executive body is not a prohibited entrepreneurial 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 an agreement;
• pp. 2 p. 2.1 Art. 32 of Federal Law No. 14-FZ says that it is the individual entrepreneur who can perform the function of the manager, 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 activities on his own risk without subordination to the labor schedule existing at the enterprises).

Important! So that judges, in the event of proceedings with the tax service, do not reclassify the GPC agreement into a labor one, 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 on the provision of management services with an entrepreneur, it is important to ensure that the relationship does not have signs labor relations(described in the text of articles 15,, - Labor Code of the Russian Federation):

• It is impossible for the manager to obey the rules of the internal labor regulations of the enterprise.
• The work of the manager should not be paid according to official salary or by tariff rates(the result of the work should be paid, and not the process of fulfilling duties).
• An Order for employment in the specified position should not be issued, the amount of wages and other working conditions cannot be prescribed.
• It is impossible to 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 the rights and obligations to manage the current activities of the organization (based on Federal Law No. 14-FZ, the contract and other legal acts).
• Receives the right to a monetary reward for their services.
• Referred to as "manager", designated as such in business correspondence, contracts concluded on behalf of the organization with counterparties, as well as in official and financial documentation.
• He is in a civil law relationship with the LLC on the basis of an agreement on the provision of services for a fee.

First of all, it should be noted that the legislation does not single out an organization management agreement (an agreement on the transfer of powers of the sole executive body to the manager) as an independent type of civil law agreement and does not detail the rights and obligations of its parties (managed and managing organizations). As practice shows, such an agreement can be considered as a contract for the provision of services for a fee (see, for example, the decisions of the Tenth Arbitration Court of Appeal dated 08.12.2011 No. 10AP-9298/11 and dated 08.31.2011 No. 10AP-6625/11). At the same time, participants in civil circulation have the right, guided by the principle of freedom of contract (Article 421 of the Civil Code of the Russian Federation), to determine the terms of the contract at their discretion, except when the content of the relevant term is prescribed by law or other legal acts, and to conclude a contract, including not provided for by law, as well as an agreement that contains elements of various agreements provided for by law or other legal acts (mixed agreement). Therefore, the agreement on the transfer of powers of the sole executive body to the manager may, in addition to the elements of the contract for the provision of services for a fee, include elements of other types of civil law contracts.

At the same time, the very subject of such an agreement can be clearly determined on the basis of the rules of law governing legal status legal entities of one or another organizational and legal form. From Art. 42 of the Federal Law of February 8, 1998 No. 14-FZ “On companies with limited liability"(hereinafter - the Law on LLC), Art. 69 of the Federal Law of December 26, 1995 No. 208-FZ "On joint-stock companies» (hereinafter referred to as the JSC Law) it directly follows that the subject of the management agreement economic society is the implementation management company(manager) of the functions of the sole executive body of this company. In turn, the exercise of the functions of the sole executive body involves the management of the current activities of the company - representing the interests of the company in relations with third parties, making transactions, exercising the rights and obligations of the employer in labor relations (part 6 of article 20 of the Labor Code of the Russian Federation), resolving other issues of current activities , with the exception of issues related to the competence of other bodies of the company.

By transferring the powers of the sole executive body on the basis of a management agreement, the managed company acquires civil rights and assumes civil obligations through the managing organization (manager) (clause 1, article 53 of the Civil Code of the Russian Federation). The actions of the managing organization as a body of a legal entity are the actions of the legal entity itself. The powers of the management company in this case are determined by the norms of the law and the agreement on the transfer of powers of the executive body (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 01.06.2010 No. 18170/09).

The foregoing also means that the provision of paragraph 3 of Art. 182 of the Civil Code of the Russian Federation, according to which a representative cannot make transactions on behalf of the person represented in relation to himself personally, as well as make such transactions in relation to another person, whose representative he is at the same time, except in cases of commercial representation. Acting as a body of a managed company, the managing organization is not its representative within the meaning of Art. 182 of the Civil Code of the Russian Federation (see the decisions of the Presidium of the Supreme Arbitration Court of the Russian Federation of September 21, 2005 No. 6773/05, the Sixteenth Arbitration Court of Appeal of April 20, 2011 No. 16AP-1921/09).

Legal regulation of relations under a contract for the provision of services is carried out in accordance with the rules of Chapter 39 of the Civil Code of the Russian Federation, as well as with general provisions on the contract (Articles 702-729 of the Civil Code of the Russian Federation) and the provisions on household contracts (Articles 730-739 of the Civil Code of the Russian Federation), which apply to the contract for the provision of services for compensation, if this does not contradict Art. 779-782 of the Civil Code of the Russian Federation, as well as the features of the subject of the contract for the provision of services for compensation (Article 783 of the Civil Code of the Russian Federation).

An organization management agreement, like any civil law agreement, is considered concluded if the parties have reached an agreement on all its essential terms. Essential are the conditions on the subject of the contract, the conditions that are named in the law or other legal acts as essential or necessary for contracts of this type, as well as all those conditions regarding which, at the request of one of the parties, an agreement must be reached (paragraph 1 of article 432 Civil Code of the Russian Federation). The provisions of Chapter 39 of the Civil Code of the Russian Federation do not provide special requirements to the essential terms of the contract for the provision of services, therefore, as a general rule, for this type of contract, the condition on its subject matter is essential.

Judicial practice proceeds from the fact that the specified contract can be considered concluded if it lists certain actions that the performer is obliged to perform, or indicates certain activities that he is obliged to carry out. In the event that the subject of the contract is indicated by an indication of a specific activity, the range of possible actions of the contractor can be determined on the basis of negotiations and correspondence preceding the conclusion of the contract, the practice established in the mutual relations of the parties, business customs, subsequent behavior of the parties, etc. (Article 431 of the Civil Code of the Russian Federation, paragraph 1 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 29, 1999 No. 48).

In view of the foregoing, it can be concluded that the subject of the agreement on the transfer of powers to the manager is the activity of the manager in managing the current activities of the company (decree of the Tenth Arbitration Court of Appeal dated 08.12.2011 No. 10AP-9298/11).

We also note that the contract on the management of an organization, as a type of contract for the provision of services for a fee, has a legal specificity that distinguishes it from other types of civil law contracts. In particular, in judicial practice It was noted that the rules of the Civil Code of the Russian Federation on a contract for the trust management of property (Articles 1012-1026 of the Civil Code of the Russian Federation) are not subject to application to the contract for the transfer of powers of the executive body of the managing organization, since the latter involves the transfer not of individual property objects, but of powers to manage the organization. In addition, the manager, unlike the trustee, acts on behalf of the legal entity, and not on his own behalf (see the resolution of the Federal Antimonopoly Service of the Volga District of May 21, 2009 in case No. A55-13261 / 2008).

It should also be noted that the rules of the Civil Code of the Russian Federation on the contract for the provision of services for a fee do not contain provisions that determine the procedure for fixing the results of the provision of services, including the preparation of acts on the services provided and (or) reports of the contractor. The relevant conditions are determined by the parties at their own discretion (clause 2, article 1, clause 4, article 421 of the Civil Code of the Russian Federation). With regard to the contract on the management of the organization, the courts note, in particular, that the degree of detail of the services provided when they documenting, as well as the method of measuring their volume (to the extent that such a measurement is possible) is determined by the parties to the contract (the contractor and the customer) by mutual agreement. So, the parties can agree on a time-based system for accounting for the volume of services rendered, setting as a unit of measurement one calendar month for the provision of services (decree of the Ninth Arbitration Court of Appeal dated December 30, 2010 No. 09AP-31140/2010).

Thus, the legislation does not prescribe the content of acts on the services provided for the management of the organization or other documents that determine the volume and nature of the services provided, and, moreover, does not oblige the parties to the contract to draw up such acts (documents). However, in a practical situation, the presence of such final documents as an act on the services rendered, a contractor's report on the provision of services for a certain period of time, may have legal significance in civil and tax legal relations to confirm the fact of the provision of services, the existence of grounds for their payment, the reasonableness of the organization's expenses for payment for the services of a management company when taxing profits (see, for example, Resolution of the Federal Antimonopoly Service of the Moscow District dated February 4, 2010 No. KG-A40 / 15406-09, letter of the UMNS for Moscow dated June 24, 2003 No. 26-12 / 34020).

In addition, we note that the issue of transferring the powers of the sole executive body of the management company falls within the competence of the general meeting of shareholders of the joint-stock company (clause 1, article 69 of the Law on JSC), the general meeting of participants or the board of directors (supervisory board) of a limited liability company (subpara. 2.1, paragraph 2, article 32, subparagraph 4, paragraph 2, article 33 of the LLC Law). The corresponding decision is drawn up in a protocol (clause 6, article 37, clause 1, article 50 of the Law on LLC, article 63 of the Law on JSC).

Within three working days from the date of transfer of the powers of the sole executive body to the managing organization, the company must report this to the body carrying out state registration of legal entities (registration body) at its location (clause 5, article 5 of the Federal Law of 08.08.2001 No. 129 -FZ "On state registration legal entities and individual entrepreneurs).

Russian legislation does not contain the legal institution "outsourcing". At the same time, one of the fundamental principles of civil law is freedom of contract.

Legal aspects

Outsourcing in the legal sense is a service for the provision of personnel to perform certain activities in favor of the customer. To formalize legal relations for these services, the construction of a civil law contract for the provision of services for a fee is used.

All outsourcing contractual relationships have the following features:

· when providing services, an outsourcing organization has the right to involve both Russian and foreign personnel. The responsibility for labor registration, as well as compliance with migration and tax laws, rests with the outsourcing organization;

· the final result received from the outsourcing organization, whether it be financial statements or anything else, creates legal consequences exclusively for the customer;

· having control over outsourcing services;

· observance of confidentiality, that is, the secrecy of commercial and service information that has become known to an outsourcing organization;

All these conditions must be reflected in the contract. In addition, it should provide for liability for violation of contractual relations, which can be expressed in the form of fines (in case of violation of the terms for organizing the supply of materials, etc.) and in the form of damages (including lost profits).

For example, when transferring the functions of maintaining accounting and tax records, as well as compiling and submitting reports, it is necessary to take into account that:

· the fact of the transfer of accounting must be reflected in the order on accounting policies for the corresponding financial year;

· the list of transferred functions should be as detailed as possible and contain a workflow schedule;

· responsibility for violation of legislative acts should be clearly defined;

· the list of persons entitled to sign primary documents is approved by the head of the enterprise in agreement with the chief accountant. Therefore, in the contract, as well as in the appendix to the accounting policy, it is necessary to indicate who will sign them;

· reporting is signed by the heads of both organizations.

Fiscal aspects

From the point of view of taxation of holding structures, outsourcing management of a holding generally does not add a tax burden to it. It does not increase in the case of the sale of services at the price of actual costs, subject to the application common system corporate taxation.

When outsourcing, the holding company imposes VAT on services, subsidiaries accept it for deduction.

If we take into account that each service should make economic sense (profit), then the sale of services should be carried out with a small rate of return. In this case, the holding company makes a small profit, and subsidiaries attribute these services to income tax expense.

Thus, when reporting is consolidated, the tax burden on VAT and income tax does not increase.

Particular attention should be paid to the cost of services to subsidiaries that do not have profit or have, but insignificant, as well as those that have a loss of previous years.

In the case of a minor profit for a subsidiary, a situation may arise when the holding company has a profit, and the subsidiary has a loss.

In a situation where a subsidiary carries forward the losses of previous years to the current tax base, the privileged part of the profit is reduced.

The last two situations will lead to an increase in the tax burden on income tax for the entire holding.

In order to reduce tax risks, it is necessary to clearly understand why internal system outsourcing.

In essence, it is possible to determine the economic meaning of internal outsourcing in a feasibility study (FS) to the contract. In this document, it is necessary to provide calculations of the feasibility of switching to internal outsourcing, as well as present analytical conclusions, on the basis of which one can judge the expected qualitative improvement in the position of subsidiaries in the foreseeable future.

This implies that with internal outsourcing, a single control service is not equal to the arithmetic sum of the previous control units. After all, the main prerequisites for the introduction of an internal outsourcing system in holdings is the presence of factors that, when combined, can give not only a quantitative, but also a qualitative improvement in its position in the market - synergy occurs.

At the end of each reporting period, the holding company is required to submit a report on the services rendered, as well as a certificate of acceptance of services and an invoice. The report describes in detail the services provided, which are expected to achieve the goal described in the feasibility study. Thus, the reports will reflect the process of achieving pre-set goals, which will remove many questions from the tax authority.

Tax disputes

In some cases, the tax authorities challenge outsourcing on the basis of insufficient justification of services, as well as insufficiently serious documentary evidence of the services provided.

Thus, the Federal Antimonopoly Service of the Volga-Vyatka District issued a Resolution dated January 19, 2004 in case No. A11-4426 / 2003-K2-E-1961, in which it confirmed the legality of the decision of the tax authority to apply tax sanctions to the taxpayer as a result of insufficient justification of the costs incurred to manage the organization and non-compliance of primary documents with the Law of November 21, 1996 No. 129-FZ “On Accounting”.

However, non-recognition by the tax authorities of the expenses of a subsidiary does not automatically mean non-recognition of the holding company's revenue, which leads to an increase in the tax burden on the entire holding.

It is also necessary to pay attention to the complexity of the application of Art. 40 of the Tax Code of the Russian Federation for these services, since the concepts of identity and homogeneity are not used due to the lack of similar services in such a volume and in accordance with this specificity and other terms of the transaction.

But there is an opposite opinion of the Court of Appeal. Thus, the Federal Antimonopoly Service of the West Siberian District issued a Resolution dated November 14, 2005 in case No. F04-3268/2005 (16644-A27-33) on sending the case for retrial to the court of first instance. At the same time, the court found the taxpayer's evidence substantiated, although incomplete. Note that at the very beginning, the arbitration court sided with the taxpayer.

In most cases, the costs of managing enterprises, similar to the functions of CEO.

In the case under consideration, the internal outsourcing system implies the provision of services for the management of individual processes of subsidiaries, and decision-making based on the results of services, that is, direct management, remains with the general directors.

If you want to transfer the functions of the CEO of a holding company, then you need to consider the following:

· in accordance with paragraph 1 of Art. 53 of the Civil Code of the Russian Federation, a legal entity acquires civil rights and assumes civil obligations through its bodies acting in accordance with the law, other legal acts and constituent documents;

· the procedure for appointing or electing bodies of a legal entity is determined by law and constituent documents;

· in accordance with par. 3 art. 69 of the Federal Law of December 26, 1995 No. 208-FZ “On Joint Stock Companies” establishes that, by decision of the general meeting of shareholders, the powers of the sole executive body of the company can be transferred under an agreement commercial organization(managing organization) or individual entrepreneur (manager). This decision is made general meeting shareholders only at the suggestion of the board of directors (supervisory board) of the company.

Thus, if these norms are observed, there will be no issues with the transfer of management functions.

(On organizational issues of outsourcing, see "EJ", p. 35.)

Outsourcing external or internal: advantages and disadvantages

There are two types of outsourcing: external and internal.

External outsourcing implies the transfer of part of the management functions of a holding or a subsidiary to a third-party organization. In this case, a third-party organization manages part of the business processes of the holding.

With internal outsourcing, the management of the holding is assigned to the holding itself or a special organization included in it.

The disadvantages of external outsourcing include:

· the complexity of the relationship with the service organization;

· restriction of functions by contract (question-answer);

· issues that cannot be addressed external organization due to the preservation of economic security (determination of the holding strategy);

· lack of control over the recruitment process (economic security);

· lack of brand motivation among the staff of the service organization.

Benefits include:

· the presence in the contract of penalties for violation of the terms of the provision of services (instrument of influence);

· transferring part of the responsibility for violation of the law (compensation for legally applied sanctions), etc.

· The disadvantages of internal outsourcing include:

· the presence of penalties in the contract is not effective tool impact;

· the presence of a transitional period from the old structure to the System.

Advantages:

· increase in capitalization;

· effective management business processes;

· reduction of administrative and management costs;

· transparency of management;

· the hierarchy of subordination predetermines the effectiveness of the introduction of new procedures;

· uniformity in functions ensures rapid integration of reporting;

· unified internal reporting standards facilitate the analysis of holding companies;

· legal substantiation of the "content" of top and middle management in the holding;

· the presence of "separately" existing property reduces the risk of a hostile takeover due to the impossibility of instantly creating a team capable of managing business processes at the "acquired" enterprise.

This implies that when an enterprise is taken over, it is possible to quickly terminate the outsourcing contract, thereby causing irreversible processes that lead to a decrease in the value of the enterprise.

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

16.07.2018

Introductory part.

The question of the legitimacy of transferring the powers of the head of a legal entity to an individual - a manager registered in the status of an individual entrepreneur, at the moment does not have a 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 of registration or improper execution of an employment contract or the conclusion of a civil law contract, while in fact there are labor relations. Penalties for such offenses 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 establish a direct ban on concluding an agreement with an entrepreneur on the provision of paid services for managing a company.

Therefore, formally, the organization has the right to transfer the powers of the executive body to the manager - an individual with the status of an entrepreneur. The realization of this right depends on the will of the organization itself. Moreover, such a transfer for the organization is equally attractive and dangerous from the point of view of taxation.

What is the tax benefit?

For convenience, a comparative description of civil law and labor relations in the analyzed situation is presented in the table. Suppose that the contract establishes the manager's remuneration in the amount of 50,000 rubles.

Indicators	Labor relations with an individual	Civil law relations with IP
Subject of the contract	Performance by an individual of a labor function	Performance of IP of a certain type of service
Validity	Perpetual or urgent (if the employment contract is concluded for a certain period)	A civil law contract is always concluded for a certain period of time.
Duties of a tax agent	The employer, as a tax agent, is obliged to calculate and withhold personal income tax when paying income to an employee and transfer it to the budget	The customer does not have the duties of a tax agent, since all taxes on income are paid by the individual entrepreneur
Personal income tax - 6,500 rubles. (50,000 rubles x 13%); insurance premiums (according to basic tariffs) - Pension Fund of the Russian Federation (22%), FSS (2.9%), CHI (5.1%) - 15,000 rubles. (50,000 rubles x 30%); insurance premiums for "injuries" (for example, with the V class of professional risk, the tariff is 0.6%) - 300 rubles. (50,000 RUB x 0.6%)	USNO - 3,000 rubles. (50,000 rubles x 6%); employer pays premiums
	RUB 21,800 (6,500 rubles are withheld from the employee's income)	3,000 rubles (paid by the entrepreneur)

As you can see, with the second option of relations, the organization can significantly save on the payment of fiscal payments. Another undoubted advantage of this option is the urgent nature of the 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 authority to manage an organization to an entrepreneur on the simplified taxation system as a tax evasion scheme, the purpose of which is to avoid the duties of a tax agent for personal income tax. At the same time, arbitration practice in such disputes is ambiguous. And given that since 2017, relations in the field of insurance premiums are regulated by the provisions of Ch. 34 of the Tax Code of the Russian Federation, it can be assumed that disputes about the legality of the transfer of powers to manage the company to an entrepreneur on the simplified taxation system (due to a decrease in the amount of insurance premiums) will flare up with renewed vigor.

Examples of judgments.

A vivid example of a positive decision for the organization is the Resolution of the AS PO dated 01/22/2015 No. F06-18785 / 2013 in case No. A65-8559 / 2014. The essence of the controversial situation that arose in 2011 is as follows.

Based on the results of the audit of the company, the inspectors considered that the transfer of powers of its head to an entrepreneur (one of the participants in the company) on the basis of a contract for the provision of services for the management of the current financial economic activity company was carried out in order to evade payment of personal income tax (the amount of the claim is 669 thousand rubles).

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

Society by virtue of Art. 42 of Law No. 14-FZ has the right to transfer the exercise of the powers of its executive body to the manager under the contract. Such a transfer of authority to the manager is the prerogative of the company, since the decision on this issue is within the competence of the general meeting of participants in the company 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, article 33 of Law No. 14-FZ).

The coincidence of the powers of the general director with the powers of the manager is due to the performance by them of the same functions of managing the company, which directly follows from Art. 40 and 42 of Law No. 14-FZ. The above circumstance cannot prove the sham (pretense) of the agreement on the transfer of powers of the sole executive body to the manager.

Arbitrators of the AS PO also emphasized that the registration of an entrepreneur to conclude a disputed contract does not in itself indicate the illegality of the actions of the participants in the transaction. In turn, the presence of the status of an entrepreneur entails not only the possibility of applying a 6% tax rate (of course, if the entrepreneur applies the simplified taxation 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 unambiguously indicate the unreasonableness of the tax benefit received. The latter can only be considered unreasonable if the interdependence has affected pricing.

Note:

The price of the contract for the provision of services for compensation includes compensation for the costs of the contractor 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. In the opinion of the Ministry of Finance, compensation for the manager's expenses incurred while exercising the powers of the sole executive body should be included in income taken into account when calculating the "simplified" tax (see Letter No. 03‑11‑11/19830 dated April 28, 2014).

At the same time, other conclusions in a similar situation were made by the judges of the FAS UO in Resolution No. F09-4929/12 dated 11.06.2012 in case No. A50-19343/2011. In this dispute, the tax authorities were able to prove that the powers of the sole executive body of the company were transferred to individual entrepreneurs in order to obtain unreasonable tax benefits. The following facts of the case influenced the outcome of the dispute:

• the registration of the manager as an individual entrepreneur was carried out just a few days before the decision was made by the company to transfer the powers of the manager to him and was terminated immediately after the termination of the contract for the provision of paid services for managing the company;
• the entrepreneur did not show proper business activity- all actions for registration, amendments to the USRIP, submission of tax returns were carried out by the company's lawyer in the absence of payment for the 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 application of the simplified taxation system;
• the entrepreneur had no other clients besides the company;
• the contract for the provision of management services with an individual entrepreneur contained signs of an employment relationship;
• the work schedule of the manager coincided with the work schedule of the company's employees.

Taking into account the above 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 labor and drawn up in order to obtain unreasonable tax benefits.

What is 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 of the current legislation is not illegal, and the exercise of the powers of the sole executive body is illegal entrepreneurial activity. This contract by its nature is considered to be a mixed civil law one, since it contains separate elements of contracts of agency, trust management of property, paid services.

Moreover, from par. 2 p. 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 employment, involves independently organized initiative activity of the subject at his own risk without obeying the labor regulations adopted in a particular organization. In other words, in the analyzed situation, the legislator initially assumes the establishment of not labor, but civil law relations.

In this case, the entrepreneur (see Resolution of the Ninth Arbitration Court of Appeal dated 05.06.2017 No. 09AP-19171/2017 in case No. A40-11416/2016):

• is in civil law relations with the company on the basis of a paid service agreement;
• is referred to as the “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 the services rendered by him as a managing company;
• acquires the 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.

Relations between the company and the manager, regulated by a service agreement, are not subject to the labor legislation of the Russian Federation. From Law No. 14-FZ it follows that the action labor law 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.

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

• accepting an employee for a position staffing, or assigning a specific labor function to him;
• issuance of an order on his employment with an indication of the position, salary and other essential working conditions;
• remuneration of the employee at 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 the rules of internal labor regulations.

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

In the above judicial acts controllers' claims arose only in terms of personal income tax, since from 2010 to 2017, extra-budgetary funds were engaged in the administration of insurance premiums. Currently, the relevant powers have been again 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 had no business purpose and was feigned. Previously, such disputes have already arisen (see, for example, the decisions of the FAS PO of February 14, 2013 in case No. А65-15483 / 2012, the FAS UO of September 10, 2007 No. Ф09-7158 / 07‑С2 in case No. А71-226 / 07, in which it was not only about personal income tax, but also about the UST - the predecessor of the current insurance premiums). Attention should also be paid to the Decree of the Arbitration Court of the Far East of 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 taxation system on the transfer his powers to manage the company, in fact, was 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, the result achieved by the contractor at the end of the provision of services. On the contrary, it spelled out duties specific to the labor function that this entrepreneur performed as the head of this society, and not as a manager.

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In practice, more and more often companies belonging to groups resort to the services of managing organizations that are members of the same groups, to which the powers of the sole executive body are transferred. At the same time, the general directors of the group companies often move to the managing organization and continue to manage the current activities of the companies from which they left.

This situation leads to disputes with the tax authorities about whether it is legal to recognize for tax purposes the costs of paying for the services of the managing organization: such costs are much more than the salary of the general director.

This article presents a position on the issue of the validity of the costs of paying for the services of the involved management organization and the correctness of the execution of documents confirming such costs. Using this position, the taxpayer withdrew the claims of the tax authority already at the stage of making a decision based on the results of an on-site tax audit.

According to sub. 18 p. 1 art. 264 other costs associated with production and sales include the costs of managing the organization or its individual divisions and the purchase of services for the management of the organization or its individual divisions. Thus, taxpayers, referring to other expenses the costs of paying for the services of the managing organization, act in accordance with subpara. 18 p. 1 art. 264 of the Tax Code of the Russian Federation.

By virtue of the provisions of paragraph 1 of Art. 252 of the Tax Code of the Russian Federation, these expenses must meet the criteria of validity and documentary evidence. It is to the validity and documentary evidence that tax authorities have claims that conduct an on-site tax audit of the activities of a taxpayer who has transferred the powers of the sole executive body to a managing organization.

Let's consider a specific situation. OJSC in December 2005 concluded an agreement with the managing organization on the transfer of powers of the sole executive body. The general director of the OJSC, who had worked in this position for about 20 years, was hired by the managing organization to perform the functions of the sole executive body on its behalf. The tax authority, checking the correctness of the calculation and payment of taxes for 2005, in the act of the on-site tax audit suggested that the OJSC pay corporate income tax from the difference between the average monthly salary of the General Director for 2005 and the cost of the services of the managing organization for December 2005. The tax authority considered the expenses of the JSC for paying for the services of the managing organization in terms of organizing current activities as economically unjustified and not documented, since the executed act on the exercise of the powers of the sole executive body in December 2005 d. in violation of the requirements of the legislation on accounting, does not contain a mandatory requisite - a measure of a business transaction in physical and monetary terms.

We believe that the conclusions of the tax authority do not comply with current legislation and actual circumstances.

As to justification.

According to paragraph 1 of Art. 69, by decision of the general meeting of shareholders, the powers of the sole executive body of the company may be transferred under an agreement to a commercial organization (managing organization). Such a decision is made by the general meeting of shareholders at the proposal of the board of directors (supervisory board) of the company.

In the case under consideration, the transfer of powers of the sole executive body to the managing organization was carried out in full compliance with the requirements of the legislation of the Russian Federation on joint-stock companies.

According to paragraph 1 of Art. 252 of the Tax Code of the Russian Federation (as amended in 2005 and currently in use), reasonable expenses are understood as economically justified expenses, the assessment of which is expressed in monetary terms.

The definition of the rationality, expediency and validity of certain expenses relates to the economic activity of the organization, which is confirmed by the established judicial practice (see, for example, Decree of the Federal Antimonopoly Service of 17.08.2004 N A55-14330 / 03-5). The tax authority, according to the Tax Code of the Russian Federation, is not authorized to interfere in the financial and economic activities of an organization and is not endowed with an independent right to determine the economic feasibility of costs, which is also confirmed by established judicial practice (see, for example, Decrees of the FAS ZSO dated 03.23.2005 N F04-1425 / 2005 (9668-A75-26), FAS SZO dated 12.20.2006 N A66-9241 / 2005). This position is also confirmed The Constitutional Court of the Russian Federation in the rulings of 04.06.2007 N 320-O-P and 366-O-P, as well as by the Plenum of the Supreme Arbitration Court of the Russian Federation in its resolution of October 12, 2006 N 53 "On the assessment by arbitration courts of the validity of obtaining a tax benefit by a taxpayer" .

The transfer of powers of the sole executive body of OJSC to the managing organization was carried out in order to increase the efficiency of the Company's management, to resolve strategic objectives, namely:

access to foreign markets;

increasing business competitiveness;

attraction of investments;

cooperation and integration of the Company with other enterprises of its industry;

improvement of business quality (increase in return on invested capital) and growth in income from business growth (in the form of dividends and capitalization growth);

control of income growth (obtaining sufficient information at minimal cost).

The managing organization was also entrusted with the task of introducing modern technologies management, to increase labor productivity, increase the welfare of employees of OJSC, reduce inefficient production. Achieving this goal and solving the listed tasks is impossible using the existing management of the JSC.

In December 2005, the managing organization (which follows from the act on the exercise of the powers of the sole executive body) performed, among others, the following work:

formed a draft business plan of the OJSC, relating to all activities of the Company (including a production plan, financial plan, marketing plan; action plan for organizing and improving the system of remuneration; on automation of management, workplaces and information support etc.), designed to improve the financial and economic condition of the enterprise;

developed and approved a new organizational structure JSC;

developed regulations on the divisions of the executive office, a planning system production resources;

prepared and held a number of scientific and technical councils to improve the products manufactured by JSC.

Thus, the effectiveness of the transfer of powers of the sole executive body of the OJSC from the General Director of the managing organization is confirmed by the work performed by the managing organization and the services rendered to the company. The tax authority did not prove the inefficiency of the activities of the managing organization.

The remuneration of the managing organization, to which the management of the Company was transferred by the General Meeting of Shareholders of the Company, is not arbitrary. To ensure that the amount of the contract with the managing organization corresponds to the market price, a separate study was carried out. The study analyzed data on management companies operating in 2001-2004. in various industries: in the electric power industry, mechanical engineering, metallurgy, chemistry and petrochemistry. To calculate the cost of the services of the managing company specified in the contract, the number of employees of the managing company, the book value of the assets of the managed company and its profitability were taken into account. Thus, the cost of services of the managing organization, established in the contract, corresponds to market value such services provided by similar organizations.

In addition, the actual cost of services of the managing organization in December 2005 amounted to an insignificant percentage of the OJSC's revenue for this period, which also confirms the validity of these expenses.

The tax authority, pointing to the reasonableness of the cost of the services of the managing organization only in the amount of the average salary of the former general director of the OJSC, does not take into account the fact that, by acquiring the services of the managing organization, the OJSC acquires services and works performed not by one person, but by many persons - employees of the managing organizations, which, along with their qualifications, guarantees more efficient management of the JSC. In other words, the cost of services of the managing organization cannot be equal to the average monthly wages Former CEO of JSC.

At the same time, the fact of accepting the General Director to the staff of the managing organization to perform the functions of the sole executive body on its behalf is not subject to economic evaluation. This conclusion is confirmed by the established judicial practice (see, for example, Decree of the Federal Antimonopoly Service of 08.02.2006 N A12-18671 / 05-s10).

Besides,

Personnel, in official duties which included management functions transferred to the managing organization;

in the situation under consideration, on the basis of an agreement, the powers of the sole executive body - the general director, but not other employees of the management apparatus, were transferred to the managing organization, therefore, the presence in the staff of the OJSC of persons holding senior positions is not a duplication of the functions of the managing organization. This conclusion is confirmed by the established judicial practice (see, for example, Decree of the FAS SZO of May 18, 2006 N A13-5263 / 2005-15).

It should be noted that the fact of duplication of powers of the managing organization does not indicate the economic unreasonableness of the expenses of the OJSC to pay for its actually rendered services. Paragraph 1 of Art. 252 and sub. 18 p. 1 art. 264 of the Tax Code of the Russian Federation do not restrict the taxpayer in the right, in the presence of their own management structures, to simultaneously involve outside managers in the management of the organization or its individual divisions (see, for example, Decrees of the FAS PO dated 06/23/2006 N A64-10456 / 05-13; FAS ZSO dated 01.12.2005 N F04-8662/2005 (17479-A27-3) and dated 05.07.2006 N F04-4281/2006 (24270-A27-26)).

Regarding documentary evidence.

According to paragraph 1 of Art. 252 of the Tax Code of the Russian Federation (as amended in 2005 and currently in use), documented expenses are understood to be expenses confirmed by documents drawn up in accordance with the legislation of the Russian Federation.

In December 2005, OJSC confirmed the act of incurring by the Company of expenses for paying for the services of the managing organization with the following documents examined by the tax authority during the on-site tax audit:

agreement "On the transfer of powers of the sole executive body" with annexes and additional agreements;

an act on the exercise of the powers of the sole executive body of the JSC under the agreement on the transfer of powers of the sole executive body with annexes, drawn up in the form established by the contract;

payment orders.

These documents testify to the actual performance and acceptance of services and confirm the connection between the costs of paying for the services of the managing organization and the business activities of the JSC, since it follows from their content that in December 2005 the managing organization performed the functions of the sole executive body of the JSC and resolved all issues related to management of the current activities of the JSC.

In particular, in December 2005, the managing organization formed a draft business plan for OJSC 2006; developed and approved a new organizational structure of JSC; developed regulations on subdivisions of the executive apparatus, a system for planning production resources; made bank payments; concluded and supervised the fulfillment of OJSC contracts; issued and supervised the execution of internal administrative documents, etc.

The fact that the contract, the act on the fulfillment of the powers of the executive body (essentially being the act on the performance of work (rendering of services)) and payment orders are documents confirming the incurring of expenses by the taxpayer is also confirmed by established judicial practice (see, for example, the Decree of the FAS SZO dated 01/19/2005 N A56-24111 / 04).

By virtue of the requirements of Art. 313 of the Tax Code of the Russian Federation and paragraph 2 of Art. 9 the act on the exercise of the powers of the executive body, being a primary accounting document, the form of which is not provided for in the albums of unified forms of primary accounting documentation, must contain the following mandatory details: name of the document; date of preparation of the document; the name of the organization on behalf of which the document is drawn up; the content of the business transaction; business transaction meters in physical and monetary terms; the names of the positions of persons responsible for the business transaction and the correctness of its registration; personal signatures of the said persons. The act on the fulfillment of the powers of the sole executive body of the OJSC, submitted by the OJSC in confirmation of the expenses incurred by it, contains all the mandatory details established by paragraph 2 of Art. 9 of the Federal Law of November 21, 1996 N 129-FZ "On Accounting".

In particular, the measures of economic transactions in natural and monetary terms, the absence of which is indicated by the tax authority, are also contained in the act: Agreement on the transfer of powers of the sole executive body"; - Appendix No. 1 to the act, which is an integral part of the act, contains a list of the results of specific work performed by the managing organization in the amount of 15 pieces; - the act indicates the cost of services rendered in December 2005; - Appendix No. 2 to the act contains a calculation of the cost of services rendered in December 2005: the cost of services in the part "Organization of current activities" in December 2005

At the same time, the presence of a monetary expression for each work performed or service rendered is not provided for either by the civil legislation of the Russian Federation, or by the legislation of the Russian Federation on accounting, or by the agreement between the OJSC and the managing organization. Moreover, no one provides for a separate delivery of each service provided by the managing organization or the work performed by it. On the contrary, the competence of the managing organization, due to the requirements of paragraph 2 of Art. 69 of the Federal Law of December 26, 1995 N 208-FZ "On Joint-Stock Companies", the section "The Executive Body of the Company" of the Charter of the OJSC and the requirements of the agreement on the transfer of powers of the sole executive body, all issues of managing the current activities of the OJSC that arise during the period of the agreement, and The delivery of work performed and services rendered is envisaged on a monthly basis, in particular, at the end of December 2005.

Thus, the claim of the tax authority regarding the content of the act on the fulfillment of the powers of the sole executive body, namely: the absence in the act of a mandatory requisite - a measure of a business transaction in physical and monetary terms - is unfounded, and the expenses of the JSC for payment for management services are documented confirmed.

ON THE. Travkina, Attorney at Law Office "Pepeliaev, Goltsblat & Partners"

The article was published in the Journal "Arbitration Justice in Russia"