Remuneration of members of the board of directors of a joint-stock company. Payments to members of the board of directors: to be or not to be? (Mukhin V.) Board of Directors pension accruals

Are you here: Questions and answers

Issues of payments to members of the Board of Directors of companies are one of the most difficult moments. The regulatory framework and judicial practice on this issue is very controversial, and corporate legislation is not unambiguous.

The board of directors as a management body of the companies is not a permanent executive body. AT joint-stock companies (both open and closed type) it carries out general leadership activities of the company in accordance with Articles 64 and 65 of the Law of December 26, 1995 No. 208-FZ "On Joint-Stock Companies" (hereinafter - Law No. 208-FZ).

According to Article 65 of Law No. 208-FZ, the following issues fall within the competence of the Board of Directors of a joint-stock company:

determination of priority directions of development of the joint-stock company;

conclusion and termination of contracts with a management company, a specialized depository, an appraiser, an auditor;

convening annual and extraordinary general meetings of shareholders;

approval of the agenda of the general meeting of shareholders;

determining the date of the general meeting and the list of persons entitled to participate in the general meeting;

increase in the authorized capital of the company by placing an additional issue of shares and their category, if this issue is within its competence;

placement of bonds and other equity securities;

determination and approval of the monetary valuation of property, the price of placement and redemption of emissive securities;

formation of a permanent executive body and early termination of its powers, if this issue is referred to its competence;

acquisition of shares, bonds and other securities placed by the company;

use of the reserve fund and other funds of the company;

approval of the internal documents of the company, referred by the Charter to its competence;

creation of branches and representative offices of the company;

approval of major transactions related to its competence;

approval of the registrar of the company and the terms of the contract with him, as well as termination of the contract with the registrar;

making a decision on the participation and / or termination of the participation of the company in other organizations;

other issues referred by the Charter to the competence of the Board of Directors.

Note that this list is general and is "open".

AT limited liability companies, according to the Civil Code, there is no Board of Directors (Article 91 of the Civil Code of the Russian Federation). However, Article 32 of the Law of February 8, 1998 No. 14-FZ “On Limited Liability Companies” (hereinafter - Law No. 14-FZ) states that the formation of a board of directors in an LLC may be provided for by the Charter.

formation and early termination of the powers of the LLC executive bodies;

resolving issues related to major transactions in cases referred by the Charter to the competence of the Board of Directors;

resolving issues related to transactions in which there is an interest;

resolving issues related to the preparation, convening and holding of the general meeting of participants;

resolution of other issues provided for by law.

The practice of creating and functioning of limited liability companies in modern Russia is such that they are created by no more than 5 individuals, in most cases interconnected, which makes the creation of the Board of Directors unnecessary.

In this article, remuneration issues are considered in a situation common to both joint-stock companies and limited liability companies. Joint-stock companies will be understood as any types of joint-stock companies - both open and closed (the latter, in their organizational and legal type, are more in line with limited liability companies).

Law No. 208-FZ and Law No. 14-FZ provide for the possibility of paying remuneration and / or compensation for expenses to members of the Boards of Directors during the period they perform their functions (Article 64 and Article 32, respectively). But such payments are possible only by decision general meetings of shareholders (participants) the above companies.

General Meetings of Shareholders/Members can make any payments only from those financial sources that it can dispose of, and it can only dispose of net profit (remaining after paying income tax).

List of powers of the Board of Directors, cannot be considered as functions of direct management of society. These are precisely the general functions associated with promoting the interests of society and its positioning in the market, as well as representative functions. In addition, top managers of large shareholders owning blocking or controlling stakes, that is, employees of other organizations, are members of the Boards of Directors of the companies. And this only complicates the problem.

Two items of cost accounting - two consequences of their application

There are two positions on the problem of paying remuneration to members of the Board of Directors: the position of the Ministry of Finance and the position of the Supreme Arbitration Court. Moreover, both positions are diametrically opposed.

Position of the Ministry of Finance

From the point of view of the Ministry of Finance, all payments to members of the Boards of Directors of companies can only be made from the net profit left after paying income tax, and cannot be included in expenses that reduce the tax base for income tax. The position of the Ministry of Finance is understandable: for several years now, the main financial department has been fighting to increase budget revenues by any means and considers an increase in taxpayer expenses to be an evil aimed at reducing state revenues. But, despite the understandable intransigence of the Ministry of Finance on this issue, its position deserves the most detailed consideration, since it will be brought to the attention of the tax authorities as a methodological one and will form the basis of the opinion of tax inspectors during audits.

First of all, payment of remuneration to members of the Boards of Directors are not mandatory and will be made only from net profit (letter of the Ministry of Finance of the Russian Federation of April 16, 2007 No. 03-04-06-02 / 72; of January 26, 2007 No. 03-04-07-02 / 2). In accordance with paragraph 21 of Article 270 of the Tax Code, when taxing profits, the calculation of the taxable base does not include expenses related to the payment of remuneration provided, except for those specified in collective (labor) agreements.

Secondly, activities of the Board of Directors cannot be qualified as an activity for the direct management of the organization or its separate structural subdivisions (letter of the Ministry of Finance of the Russian Federation dated September 22, 2005 No. 03-03-04 / 1/221). Moreover, the Ministry of Finance explains this not from the standpoint of corporate law, but from the standpoint of applying subparagraph 18 of paragraph 1 of Article 264 of the Tax Code, that is, from the point of view of taxation. Characteristically, neither in this letter, nor in any other, this position is supported by references to corporate law.

Besides, expenses for business trips of members of the Board of Directors are not included in expenses that reduce the tax base for income tax, in cases where a member of the Board of Directors on the staff of this organization was on a business trip precisely as a member of an elected body, and not as an employee of his organization (letter of the Ministry of Finance of the Russian Federation of September 22, 2005 No. 03-03-04 / 1/221).

Thirdly, in order to pay remuneration to members of the Board of Directors, they must employment or civil law contracts(Letter of the Ministry of Finance of the Russian Federation dated December 08, 2006 No. 03-03-04/1/824; dated July 13, 2006 No. 03-05-02-04/106). In this case, payments fall under the category of labor costs (Article 255 of the Tax Code of the Russian Federation, subparagraph 41 of paragraph 1 of Article 264 of the Tax Code of the Russian Federation).

Fourth, other payments (for example, travel expenses) are not included in expenses that reduce the tax base for income tax, in cases where an employment contract has not been concluded with a member of the Board of Directors (letter of the Ministry of Finance of the Russian Federation of November 13, 2006 No. 03-03-04/1/755).

To summarize all of the above, we can say that the employees of the Ministry of Finance suggest that organizations act as follows: either pay remuneration from net profit (if it exists and the charter provides for this), or conclude labor and civil law contracts with members of the Board of Directors.

The conclusion of labor and civil law contracts requires special consideration. In this proposal of the Ministry of Finance, there are opportunities for optimizing taxation. In accordance with labor legislation, the employment contract must clearly indicate the terms for which it is concluded. For members of the Board of Directors, this will be the period corresponding to their tenure in this position, which is in accordance with Article 85 of the Labor Code; duties to be performed must also be specified. For example, ensuring the passage of documents in government agencies, business promotion, etc. For all other points, the employment contract will correspond to the standard contract with employees adopted in this organization. If an employment contract is concluded with a member of the Board of Directors, as with any other ordinary employee, then the same norms of the “social package” will apply to the member of the Board of Directors as to other employees: voluntary medical insurance, compensation for overtime, etc. P. These payments are included in other expenses that reduce the tax base for income tax.

Another issue will be the legality of concluding labor contracts with persons who have a permanent job in another organization, and in serious positions. How will work be combined? What will be the wage rate? When making proposals on the form of payment, the Ministry of Finance omits all such questions and invites taxpayers to figure it out themselves. In our opinion, the only possible form of payment will be piecework.

It is equally important to decide who will sign employment contracts with members of the Board of Directors, because they are members of an elected body accountable only to the general meeting of shareholders and a permanent management body (management board, general director), will be a higher management body and, accordingly , senior officials. And the Ministry of Finance does not comment on this problem. It is possible, in our opinion, to use the system of an employment contract between the company represented by the General Director and a member of the Board of Directors as an individual.

But the most serious problem is the problem payment of UST and insurance premiums for mandatory pension insurance. According to representatives of the Ministry of Finance, in cases where payments to members of the Board of Directors are made on the basis of employment contracts, they are subject to UST in accordance with paragraph 1 of Article 236 of the Tax Code. Also, these payments will be subject to taxation of insurance premiums for compulsory pension insurance, in accordance with paragraph 2 of Article 10 of the Law of December 15, 2001 No. 167-FZ “On Compulsory Pension Insurance” (hereinafter - Law No. 167-FZ). If payments are made on the basis of a decision of the general meeting of shareholders (founders), then they will not be subject to a single social tax and they will also not be charged contributions for pension insurance (clause 1, article 236 of the Tax Code of the Russian Federation). The Ministry of Finance of the Russian Federation adheres to the same position in a letter dated 09.10.2006 No. 03-05-02-04 / 155.

To summarize the consideration of the position of the Ministry of Finance, we can say that it is only superficially simple and easy to implement. A more detailed analysis of situations using the method of payment of remuneration to members of the Board of Directors proposed by the main financial department will be presented below.

Position of the YOU

The Supreme Arbitration Court of the Russian Federation takes the opposite position. In the Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 14, 2006 No. 106 “Review of the practice of consideration by arbitration courts of cases related to the unified social tax” (hereinafter - Information Letter No. 106) it is indicated that “payments made on the basis of paragraph 2 of Article 64 of the Federal of the Law “On Joint Stock Companies” in favor of the members of the Board of Directors, are subject to the unified social tax”. That is, the Supreme Arbitration Court of the Russian Federation clearly indicated that the payment of remuneration to members of the Board of Directors is directly related to the fulfillment of their obligations to manage the company and, in fact, it is recognized that remuneration to members of the Board of Directors is included in expenses when calculating the tax base for income tax. This Information Letter is the key to explaining the position of the Supreme Arbitration Court and it is on it that federal arbitration courts base their decisions.

Arbitration courts dispute the position of the Ministry of Finance of the Russian Federation, and judicial precedents indicate that they support taxpayers (decrees of the FAS UO dated May 15, 2006 No. F09-3694 / 06-S7; FAS ZSO dated January 29, 2007 No. F04-8917 / 2006(30055-A75-15)).

Litigation practice

The decision of the Court of Appeal of the Arbitration Court of the Sverdlovsk Region dated February 16, 2006 No. A60-27787 / 05-C5 states that the costs of the joint-stock company for the payment of remuneration to members of the Board of Directors comply with the norm of Article 252 of the Tax Code. The Tax Code does not contain a definition of the term "company management expenses", which is used by the tax authorities, although this term is specified in subparagraph 18 of paragraph 1 of Article 264. Therefore, there is an ambiguity as to whether payments to members of the Board of Directors are considered expenses for the organization's management or not . The Arbitration Court of the Sverdlovsk Region considered that the Board of Directors is a company management body, and its creation in a joint-stock company is mandatory, then this irreparable contradiction of the legislation is subject to interpretation in favor of the taxpayer in accordance with paragraph 7 of Article 3 of the Tax Code. When making its decision, the Arbitration Court of the Sverdlovsk Region took into account the opinion of the Presidium of the Supreme Arbitration Court of the Russian Federation, set out in Resolution No. 1456/05 dated July 26, 2005, according to which the remuneration of members of the Board of Directors, attributable to expenses that reduce the tax base for income tax, is subject to UST. The tax inspectorate tried to challenge this decision, but it was left unchanged by the decision of the Federal Antimonopoly Service of the UO dated May 15, 2006 No. Ф09-3694 / 06-С7.

Even before the release of the Information Letter No. 106, a number of federal arbitration courts took a similar position (see, for example, the resolution of the FAS VVO dated May 24, 2004 No. A82-8302 / 2003-14).

But the stated arbitration practice is not based on the clarification of the "bottlenecks" in the legislation, but on the interpretation in favor of the taxpayer of the ambiguities and contradictions of the tax legislation. If the position of the Supreme Arbitration Court changes or if amendments and additions are made to the tax legislation, the situation may change. In addition, the position of the arbitral tribunals applies only to joint stock companies in which the creation of the Board of Directors is a mandatory procedure. AT limited liability companies Boards of directors are not always created, and therefore they will be able to take advantage of their advantageous position only in a limited number of cases.

For questions payment of UST and insurance premiums for mandatory pension insurance The Supreme Arbitration Court of the Russian Federation takes an unequivocal position: all payments and remunerations, regardless of the forms in which they are made, in accordance with paragraph 3 of Article 236 of the Tax Code, are not recognized as the object of taxation of the unified social tax if the taxpaying organization has such payments are not classified as expenses that reduce the tax base for income tax in the current (reporting) tax period (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 20, 2007 No. 13342/06).

Position of the Federal Tax Service

Another position, in contrast to the position of the two above-mentioned departments, is taken by the Federal Tax Service of the Russian Federation. The tax department takes a rather amorphous point of view on the issue of payment.

On the one hand, the tax authorities recognize the costs of paying remuneration to members of the Board of Directors as expenses for managing the company in accordance with subparagraph 18 of paragraph 1 of Article 264 of the Tax Code, even without concluding labor and / or civil law contracts with members of the Board of Directors. To document the reasonableness of expenses, the company will need to present orders, statements and other documents that record the facts of accrual and payment of remuneration (letter of the Federal Tax Service for Moscow dated January 25, 2005 No. 20-12 / 3923).

On the other hand, according to the tax authorities, for the purposes of taxation of profits, expenses are not taken into account as expenses aimed at paying any remuneration, in addition to remuneration stipulated by employment contracts (clause 21, article 270 of the Tax Code of the Russian Federation). And the basis for attributing payments to the cost of wages for employees who are not full-time employees will be the conclusion of civil law contracts with them (letter of the Federal Tax Service for Moscow dated August 28, 2006 No. 21-11 / [email protected]).

Summarizing all the above opinions, we have the following situation. According to the position of the Ministry of Finance, the payment of remuneration to members of the Board of Directors of companies does not turn on in the composition of labor costs, reducing the tax base for income tax. Such payments must be made from the net profit remaining after the payment of all taxes and other similar payments at the disposal of the company. At the same time, the Ministry of Finance indicates that payments to members of the Board of Directors are not subject to UST.

According to the position of the Supreme Arbitration Court and district federal arbitration courts, the costs of paying members of the Board of Directors can be attributed but on indirect grounds, to payments relating to expenses that reduce the tax base for income tax. The basis for this will be the need to accrue UST and contributions to pension insurance. But the position of the courts as a whole is based on the interpretation in favor of the taxpayer of irremovable contradictions.

The position of the Federal Tax Service of the Russian Federation is halfway between the above two. Of all the above, it carries the greatest risks for the taxpayer, since it will not be based on the specific opinion of the tax authority, but on the professional and personal judgment of the tax inspector.

Note that payment personal income tax in all considered cases will be mandatory, since any payments in favor of individuals (both systemic and non-systemic) are subject to personal income tax.

Attribution of payments to expenses that reduce the tax base for income tax

In order to include payments of monetary remuneration to members of the Board of Directors as expenses that reduce the tax base for income tax (administrative expenses), they must meet the following requirements:

these expenses must be documented;

these expenses must be used to generate income or be related to the management of the company;

these costs must be economically justified.

In this case, despite the fact that the Presidium of the Supreme Arbitration Court of the Russian Federation actually allowed to attribute payments to members of the Board of Directors to expenses that reduce the tax base for income tax, tax inspectors will deal with specific situations. And they will begin to consider the situation based on their professional view of the situation. Therefore, it is necessary to carefully predict the situation and minimize the risks of claims from the tax authorities in the unlawful understatement of the tax base for income tax.

Economic feasibility of expenses is the most difficult problem in this situation. Making payments to an individual (legally) is possible only if there is a legal relationship between this individual and the organization. The company's relations with members of the Board of Directors are of a civil law nature, not of an employment nature.

But it is still not clear how and with whom the members of the Board of Directors of the company will conclude labor agreements? Employees enter into employment contracts with an organization represented by its general director, director, etc. The General Director and / or the Management Board of the company in relation to the Board of Directors occupy a subordinate position and cannot act as employers in any way. In most cases, members of the Boards of Directors of companies are heads or top managers of the parent companies, people with a high level of personal income and a heavy workload. Therefore, it is impossible to solve such a problem head-on without any risks of a legal and tax nature.

To solve the problem of giving legal status to payments to members of the Board of Directors, it is necessary that the tasks related to their competence be enshrined in the company's Charter. The peculiarity of modern Russian corporate legislation is such that the courts focus specifically on the charter of the company, based on the fact that corporate law is of a general nature, and the charter is applicable specifically to this company. According to Article 65 of Law No. 208-FZ, the Board of Directors may be instructed to decide “other issues referred by the Charter to the competence of the Board of Directors”. Consequently, the competence of the board of directors, its powers and functions are determined by the Charter of the joint-stock company. This is confirmed by the norms of Article 103 of the Civil Code of the Russian Federation. The same rule is contained in Law No. 14-FZ for limited liability companies.

In order for the performance of any tasks by the members of the Board of Directors to take official status, it is necessary that these functions be prescribed in the charter of the company and distributed among the members of the Board of Directors at its meetings and must be reflected in the minutes of the meetings of the Board of Directors. Also, the company's charter should reflect the issue of remuneration. The most optimal and safest, from the point of view of filing claims, would be to initiate payments based on decisions of the Board of Directors, which should indicate that remuneration payments are made by the company on the proposal of the Chairman of the Board of Directors, are agreed with the CEO / Chairman of the Management Board, and payments are related to the current expenses that reduce the tax base for income tax. The option of payments based on the decision of the general meeting of shareholders is also possible. This option will be the least risky in terms of claims from the tax authorities, but also the most difficult in procedural terms: in fact, all general meetings of shareholders are held once a year, and it seems very problematic to hold extraordinary meetings in order to legitimize the fact of payments.

In a large construction company, by internal regulations, an investment and financial committee was organized, whose competence included issues of participation in capital, financial investments, and issuance of loans to employees. A member of this committee (except for the heads of the relevant divisions and the general director) was the Chairman of the Board of Directors and the actual owner of the company. In 2002-2005, he was paid 2,000,000 rubles for participating in weekly meetings of the investment and financial committee. In the course of an audit in 2006, the tax inspectorate recognized the payments as illegal and charged the company with penalties for understating the tax base for income tax (the inspectorate considered the inclusion of payments to the Chairman of the Board of Directors in labor costs unlawful) and for not accruing UST and insurance premiums for mandatory pension insurance. In the act, the tax inspectorate indicated that the duties performed by the Chairman of the Board of Directors are not enshrined in the Charter of the company, and it was on this basis that the evidence base of tax inspectors was built.

In our opinion, the presence of any one-time instructions to members of the Board of Directors is undesirable, since the minutes of meetings and decisions in this case will not comply with the statutory documents.

In cases where members of the Board of Directors are full-time employees of this organization, it is necessary to distinguish between payments to them as employees of the organization and as members of the Board of Directors. According to the Ministry of Finance, payments to members of the Board of Directors - full-time employees of the company - should be divided into payments to them as full-time employees and payments as members of the Board of Directors (letter of the Ministry of Finance of the Russian Federation dated 09.10.2006 No. 03-05-02-04 / 155) . The Ministry of Finance even prescribes that travel expenses for employees - members of the Board of Directors should not be included in travel expenses that reduce the tax base for income tax, since the employees were not on a business trip as company officials and their business trip was not related to the performance of duties specified in job descriptions (Letter of the Ministry of Finance of the Russian Federation dated September 22, 2005 No. 03-03-04/1/221). That is why it is most important to fix the issues of performance by members of the Board of Directors of certain functions and payment for this in the charter of the company.

Orientation of expenses to generate income or to manage the company. The functions and assignments performed by members of the Board of Directors are indirectly related to the receipt of income. Such functions are related to the management of society, its positioning in the market and development.

The question is only what functions will relate to those related to the management of society and the receipt of income by it. There is no list of such tasks and functions, and everything will depend on how convincing the arguments and evidence presented by the society are. However, the position of the taxpaying organization will be more weighty if it turns out that a member of the Board of Directors took part in a road-show or in a press conference on social issues, and not in a social or bohemian event as a representative of the sponsoring organization. In any case, the burden of proving the reasonableness of the costs will lie with society.

Documentation of expenses. To prove the fact of expenses, the company will have to collect all the documents: from the minutes of meetings of the Board of Directors to statements of payments. The necessary document, according to the author, will be a report of a member of the Board of Directors on the work performed. It is also desirable to store all documents confirming the fact that the members of the Board of Directors of the company perform the functions for which they are entitled to remuneration in separate folders.

Effects taxation the company will have the following: the amounts of payments will be included in expenses that reduce the tax base for income tax, it will be necessary to pay the UST and the insurance premium for mandatory pension insurance, as well as personal income tax.

The considered system of accounting for remuneration to management expenses, in accordance with subparagraph 18 of paragraph 1 of Article 264 of the Tax Code, on which UST and pension insurance contributions are charged, has certain advantages and disadvantages. Let's list them.

To virtues systems include:

The ability to reduce the tax base for income tax by the amount of labor costs.

Opportunity for members of the Board of Directors as individuals to receive additional income on a regular basis, without waiting for the annual meeting of shareholders.

To shortcomings systems include:

The absence of an unambiguous and definite regulatory framework on the issue of classifying remuneration payments to members of the Board of Directors as expenses that reduce the tax base for income tax. The position of the Supreme Arbitration Court of the Russian Federation cannot be considered a regulatory framework, since the Supreme Arbitration Court is not an executive body that has the right to provide explanations on methodological issues of taxation.

There is a high probability of risks of filing claims and imposing fines by tax authorities, which in their actions will be guided by the methodological position of the Ministry of Finance.

The likelihood of a subjective approach of the tax authorities to this problem (and not in favor of the taxpayer), since there is a possibility of creating a precedent in terms of justifying an increase in the expenditure part of income tax, which other taxpayers can use.

Despite the position of the Presidium of the Supreme Arbitration Court of the Russian Federation, the risks of losing the lawsuit at the claim of the tax authority are very high, as well as the likelihood of being charged with deliberately understating the tax base for income tax.

Additional immobilization of the company's funds for the payment of UST and mandatory contributions to pension insurance.

Additional immobilization of funds for the additional payment of income tax and the payment of penalties.

The need to make changes and additions to the statutory documents and create the necessary internal documents confirming the validity of payments and expenses.

Payments to members of the Board of Directors from net profit will be made by decision of the annual meeting in accordance with paragraph 2 of Article 64 and subparagraph 11 of paragraph 1 of Article 48 of the Law

No. 208-FZ. This issue, according to the Charter of the joint-stock company, falls within the competence of the general meeting of shareholders. Such a system of payments fully meets the requirements of the Ministry of Finance of the Russian Federation.

These payments will not be subject to the unified social tax and mandatory pension insurance contributions. Also, the organization will not have to justify the need for payments and select the necessary ones, confirming the fact that the members of the Board of Directors perform the functions within their competence. It will be enough to enshrine in the charter a rule on the payment of remuneration to members of the Board of Directors at the end of the year based on the decision of the General Meeting of Shareholders.

Expenses of the company for the payment of remuneration to members of the Board of Directors, carried out on the basis of the Charter of this company, for tax purposes will not apply to expenses included in the calculation of the tax base for income tax(Clause 21, Article 270 of the Tax Code of the Russian Federation). In addition, these payments will not be subject to UST and they will not be charged insurance premiums for compulsory pension insurance in accordance with paragraph 1 of Article 236 of the Tax Code and paragraph 2 of Article 10 of Law No. 167-FZ. Personal income tax will be charged for the payment of remuneration on a mandatory basis at a rate of 13 percent.

This position is also supported by the letter of the Ministry of Finance of the Russian Federation dated June 22, 2006 No. 03-05-02-04 / 85, which states that in cases where remuneration to members of the Board of Directors is paid from net profit, UST and pension insurance contributions are not charged.

However, an entity may have doubts about the possibility of applying the above positions of the Ministry of Finance without any tax consequences. What if a situation arises in which the failure to accrue UST and insurance premiums to the Pension Fund of the Russian Federation can be interpreted by the tax authorities as a violation of tax laws? And can a “permitting” letter from the Ministry of Finance save you from claims from the tax inspectorate? This letter, although it is a response to the request of a particular taxpayer, can be used by the company to defend its position on this issue. According to subparagraph 3 of paragraph 1 of Article 111 of the Tax Code, the use of letters from the Ministry of Finance exempts from a fine only if they are intended for an indefinite circle of persons or for a specific user and are based on reliable information. In this case, all letters of the Ministry of Finance are placed in reference legal systems, that is, an unlimited circle of people can use the information. The question of the reliability of the information remains entirely on the conscience of the developer of these letters. In addition, the tax authorities are obliged to follow the opinion of the Ministry of Finance and execute it in accordance with the requirements of the norm of Article 34.2 of the Tax Code. Therefore, all fears that the tax authorities may apply any penalties for non-payment of taxes and fees are unfounded.

The system of paying remuneration to members of the Board of Directors from net profit has its advantages and disadvantages.

To virtues systems include:

No risk of claims from the tax authorities for understating the calculation base for income tax.

A clear and unambiguous position on the issue of taxation, set out in the documents of the Ministry of Finance and not implying any double interpretations. Mandatory consent of the tax authorities with the position of the Ministry of Finance of the Russian Federation.

The ability to avoid the immobilization of working capital used to pay the UST and contributions to the Pension Fund.

There is no need to prepare and execute a significant number of documents confirming the reasonableness of expenses.

To shortcomings systems include:

The need to bring the statutory documents in line with the proposed system of payments: obligatory introduction into the company's Charter of a norm according to which the payment of remuneration to members of the Board of Directors is made on the basis of a decision of the General Meeting at the end of the year.

It is possible that remuneration to members of the Board of Directors will not be paid due to low financial performance at the end of the year.

Issues of payments to members of the Board of Directors of companies are one of the most difficult moments. The regulatory framework and judicial practice on this issue is very controversial, and corporate legislation is not unambiguous.

Novinsky D.Yu

The board of directors as a management body of the companies is not a permanent executive body. AT joint-stock companies(both open and closed) it exercises general management of the company's activities in accordance with Articles 64 and 65 of the Law of December 26, 1995 No. 208-FZ "On Joint-Stock Companies" (hereinafter - Law No. 208-FZ).

According to Article 65 of Law No. 208-FZ, the following issues fall within the competence of the Board of Directors of a joint-stock company:

determination of priority directions of development of the joint-stock company;
conclusion and termination of contracts with a management company, a specialized depository, an appraiser, an auditor;
convening annual and extraordinary general meetings of shareholders;
approval of the agenda of the general meeting of shareholders;
determining the date of the general meeting and the list of persons entitled to participate in the general meeting;
increase in the authorized capital of the company by placing an additional issue of shares and their category, if this issue is within its competence;
placement of bonds and other equity securities;
determination and approval of the monetary valuation of property, the price of placement and redemption of emissive securities;
formation of a permanent executive body and early termination of its powers, if this issue is referred to its competence;
acquisition of shares, bonds and other securities placed by the company;
recommendations on the amount of remuneration for members of the audit commission and auditors;
recommendations on the amount of dividends on shares and the procedure for their payment;
use of the reserve fund and other funds of the company;
approval of the internal documents of the company, referred by the Charter to its competence;
creation of branches and representative offices of the company;
approval of major transactions related to its competence;
approval of the registrar of the company and the terms of the contract with him, as well as termination of the contract with the registrar;
making a decision on the participation and / or termination of the participation of the company in other organizations;
other issues referred by the Charter to the competence of the Board of Directors.

Note that this list is general and is "open".

formation and early termination of the powers of the LLC executive bodies;
resolving issues related to major transactions in cases referred by the Charter to the competence of the Board of Directors;
resolving issues related to transactions in which there is an interest;
resolving issues related to the preparation, convening and holding of the general meeting of participants;
resolution of other issues provided for by law.

Law No. 208-FZ and Law No. 14-FZ provide for the possibility of paying remuneration and / or compensation for expenses to members of the Boards of Directors during the period they perform their functions (Article 64 and Article 32, respectively). But such payments are possible only by decision of the general meetings of shareholders (participants) of the above companies.

General Meetings of Shareholders/Members can make any payments only from those financial sources that it can dispose of, and it can only dispose of net profit (remaining after paying income tax).

The list of powers of the Board of Directors cannot be considered as functions for the direct management of the company. These are precisely the general functions associated with promoting the interests of society and its positioning in the market, as well as representative functions. In addition, top managers of large shareholders owning blocking or controlling stakes, that is, employees of other organizations, are members of the Boards of Directors of the companies. And this only complicates the problem.

Two items of cost accounting - two consequences of their application

Position of the Ministry of Finance

First of all, remuneration payments to members of the Boards of Directors are not mandatory and will be made only from net profit (letter of the Ministry of Finance of the Russian Federation dated 16.04.2007 No. 03-04-06-02/72; dated 26.01.2007 No. 03-04-07- 02/2). In accordance with paragraph 21 of Article 270 of the Tax Code, when taxing profits, the calculation of the taxable base does not include expenses related to the payment of remuneration provided, except for those specified in collective (labor) agreements.

Secondly, the activities of the Board of Directors cannot be qualified as activities for the direct management of the organization or its individual structural divisions (letter of the Ministry of Finance of the Russian Federation of September 22, 2005 No. 03-03-04/1/221). Moreover, the Ministry of Finance explains this not from the standpoint of corporate law, but from the standpoint of applying subparagraph 18 of paragraph 1 of Article 264 of the Tax Code, that is, from the point of view of taxation. Characteristically, neither in this letter, nor in any other, this position is supported by references to corporate law.

In addition, the expenses for business trips of members of the Board of Directors are not included in the expenses that reduce the tax base for income tax, in cases where a member of the Board of Directors employed by this organization was on a business trip precisely as a member of an elected body, and not as an employee of his organization ( letter of the Ministry of Finance of the Russian Federation dated September 22, 2005 No. 03-03-04 / 1/221).

Thirdly, in order to pay remuneration to members of the Board of Directors, labor or civil law contracts must be concluded with them (letter of the Ministry of Finance of the Russian Federation dated December 08, 2006 No. 03-03-04 / 1/824; dated July 13, 2006 No. 03 -05-02-04/106). In this case, payments fall under the category of labor costs (Article 255 of the Tax Code of the Russian Federation, subparagraph 41 of paragraph 1 of Article 264 of the Tax Code of the Russian Federation).

Fourth, other payments (for example, travel expenses) are not included in expenses that reduce the tax base for income tax, in cases where an employment contract has not been concluded with a member of the Board of Directors (letter of the Ministry of Finance of the Russian Federation of November 13, 2006 No. 03-03-04 / 1 /755).

Position of the YOU

The Supreme Arbitration Court of the Russian Federation takes the opposite position. In the Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 14, 2006 No. 106 “Review of the practice of consideration by arbitration courts of cases related to the unified social tax” (hereinafter - Information letter No. 106) it is indicated that “payments made on the basis of paragraph 2 of Article 64 of the Federal of the Law “On Joint Stock Companies” in favor of the members of the Board of Directors, are subject to the unified social tax”. That is, the Supreme Arbitration Court of the Russian Federation clearly indicated that the payment of remuneration to members of the Board of Directors is directly related to the fulfillment of their obligations to manage the company and, in fact, it is recognized that remuneration to members of the Board of Directors is included in expenses when calculating the tax base for income tax. This Information Letter is the key to explaining the position of the Supreme Arbitration Court and it is on it that federal arbitration courts base their decisions.

Litigation practice

But the stated arbitration practice is not based on the clarification of the "bottlenecks" in the legislation, but on the interpretation in favor of the taxpayer of the ambiguities and contradictions of the tax legislation. If the position of the Supreme Arbitration Court changes or if amendments and additions are made to the tax legislation, the situation may change. In addition, the position of arbitration courts is applicable only to joint-stock companies in which the creation of the Board of Directors is a mandatory procedure. In limited liability companies, Boards of Directors are not always created, and therefore they will be able to take advantage of their advantageous position only in a limited number of cases.

For questions payment of UST and insurance premiums for mandatory pension insurance The Supreme Arbitration Court of the Russian Federation takes an unequivocal position: all payments and remunerations, regardless of the forms in which they are made, in accordance with paragraph 3 of Article 236 of the Tax Code, are not recognized as an object of taxation of a single social tax, if the taxpayer organization does not classify such payments as expenses, reducing the tax base for income tax in the current (reporting) tax period (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 20, 2007 No. 13342/06).

Position of the Federal Tax Service

Note that payment personal income tax in all considered cases will be mandatory, since any payments in favor of individuals (both systemic and non-systemic) are subject to personal income tax.

Attribution of payments to expenses that reduce the tax base for income tax

these expenses must be documented;
these expenses must be used to generate income or be related to the management of the company;
these costs must be economically justified.

Economic feasibility of expenses is the most difficult problem in this situation. Making payments to an individual (legally) is possible only if there is a legal relationship between this individual and the organization. The company's relations with members of the Board of Directors are of a civil law nature, not of an employment nature.

To solve the problem of giving legal status to payments to members of the Board of Directors, it is necessary that the tasks related to their competence be enshrined in the company's Charter. The peculiarity of modern Russian corporate legislation is such that the courts focus specifically on the charter of the company, based on the fact that corporate law is of a general nature, and the charter is applicable specifically to this company. According to Article 65 of Law No. 208-FZ, the Board of Directors may be instructed to resolve “other issues referred by the Charter to the competence of the Board of Directors”. Consequently, the competence of the board of directors, its powers and functions are determined by the Charter of the joint-stock company. This is confirmed by the norms of Article 103 of the Civil Code of the Russian Federation. The same rule is contained in Law No. 14-FZ for limited liability companies.

In a large construction company, by internal regulations, an investment and financial committee was organized, whose competence included issues of participation in capital, financial investments, and issuance of loans to employees. A member of this committee (except for the heads of the relevant divisions and the general director) was the Chairman of the Board of Directors and the actual owner of the company. In 2002–2005, he was paid 2,000,000 rubles for participation in the weekly meetings of the investment and financial committee. In the course of an audit in 2006, the tax inspectorate recognized the payments as illegal and charged the company with penalties for understating the tax base for income tax (the inspectorate considered the inclusion of payments to the Chairman of the Board of Directors in labor costs unlawful) and for not accruing UST and insurance premiums for mandatory pension insurance. In the act, the tax inspectorate indicated that the duties performed by the Chairman of the Board of Directors are not enshrined in the Charter of the company, and it was on this basis that the evidence base of tax inspectors was built.

In cases where members of the Board of Directors are full-time employees of this organization, it is necessary to distinguish between payments to them as employees of the organization and as members of the Board of Directors. According to the Ministry of Finance, payments to members of the Board of Directors - full-time employees of the company - should be divided into payments to them as full-time employees and payments as members of the Board of Directors (letter of the Ministry of Finance of the Russian Federation dated 09.10.2006 No. 03-05-02-04 / 155) . The Ministry of Finance even prescribes travel expenses for employees - members of the Board of Directors not to be included in travel expenses that reduce the tax base for income tax, since the employees were not on a business trip as company officials and their business trip was not related to the performance of duties specified in job descriptions (Letter of the Ministry of Finance of the Russian Federation dated September 22, 2005 No. 03-03-04/1/221). That is why it is most important to fix the issues of performance by members of the Board of Directors of certain functions and payment for this in the charter of the company.

Orientation of expenses to generate income or to manage the company. The functions and assignments performed by members of the Board of Directors are indirectly related to the receipt of income. Such functions are related to the management of society, its positioning in the market and development.

Documentation of expenses. To prove the fact of expenses, the company will have to collect all the documents: from the minutes of meetings of the Board of Directors to statements of payments. The necessary document, according to the author, will be a report of a member of the Board of Directors on the work performed. It is also desirable to store all documents confirming the fact that the members of the Board of Directors of the company perform the functions for which they are entitled to remuneration in separate folders.

To virtues systems include:

The ability to reduce the tax base for income tax by the amount of labor costs.
Opportunity for members of the Board of Directors as individuals to receive additional income on a regular basis, without waiting for the annual meeting of shareholders.

To shortcomings systems include:

The absence of an unambiguous and definite regulatory framework on the issue of classifying remuneration payments to members of the Board of Directors as expenses that reduce the tax base for income tax. The position of the Supreme Arbitration Court of the Russian Federation cannot be considered a regulatory framework, since the Supreme Arbitration Court is not an executive body that has the right to provide explanations on methodological issues of taxation.
There is a high probability of risks of filing claims and imposing fines by tax authorities, which in their actions will be guided by the methodological position of the Ministry of Finance.
The likelihood of a subjective approach of the tax authorities to this problem (and not in favor of the taxpayer), since there is a possibility of creating a precedent in terms of justifying an increase in the expenditure part of income tax, which other taxpayers can use.
Despite the position of the Presidium of the Supreme Arbitration Court of the Russian Federation, the risks of losing the lawsuit at the claim of the tax authority are very high, as well as the likelihood of being charged with deliberately understating the tax base for income tax.
Additional immobilization of the company's funds for the payment of UST and mandatory contributions to pension insurance.
Additional immobilization of funds for the additional payment of income tax and the payment of penalties.
The need to make changes and additions to the statutory documents and create the necessary internal documents confirming the validity of payments and expenses.

The company's expenses for the payment of remuneration to members of the Board of Directors, made on the basis of the Charter of this company, for tax purposes will not be included in the calculation of the tax base for income tax (clause 21, article 270 of the Tax Code of the Russian Federation). In addition, these payments will not be subject to UST and they will not be charged insurance premiums for mandatory pension insurance in accordance with paragraph 1 of Article 236 of the Tax Code and paragraph 2 of Article 10 of Law No. 167-FZ. Personal income tax will be charged on the payment of remuneration at a mandatory rate of 13 percent.

The system of paying remuneration to members of the Board of Directors from net profit has its advantages and disadvantages.

To virtues systems include:

No risk of claims from the tax authorities for understating the calculation base for income tax.
A clear and unambiguous position on the issue of taxation, set out in the documents of the Ministry of Finance and not implying any double interpretations. Mandatory consent of the tax authorities with the position of the Ministry of Finance of the Russian Federation.
The ability to avoid the immobilization of working capital used to pay the UST and contributions to the Pension Fund.
There is no need to prepare and execute a significant number of documents confirming the reasonableness of expenses.

To shortcomings systems include:

The need to bring the statutory documents in line with the proposed system of payments: obligatory introduction into the company's Charter of a norm according to which the payment of remuneration to members of the Board of Directors is made on the basis of a decision of the General Meeting at the end of the year.
It is possible that remuneration to members of the Board of Directors will not be paid due to low financial performance at the end of the year.

Author - certified bank auditor, tax consultant

Relations between the board of directors and the company are governed by the norms of civil law, therefore, these relations are civil law. And if so, then remuneration in favor of members of the council, made on the basis of a general decision of the meeting of shareholders, is subject to insurance premiums. This conclusion was reached by the Constitutional Court in its ruling.

The essence of the dispute

To begin with, we recall that the Ministry of Labor has repeatedly stated: remuneration to members of the board of directors and the audit commission is made on the basis of a general meeting of shareholders of the company, and not in accordance with labor agreements or civil law contracts. In this regard, these payments are exempt from taxation of contributions (see, for example, letters dated 07.05.15 No. 17-3 / V-234 - ""; dated 02.09.14 No. 17-3 / V-415; No. 17-3/B-400).

Position of the Arbitration Courts

However, the courts, unlike the Ministry of Labor, take the opposite position. An organization from the Perm Territory was convinced of this. Inspectors from the Pension Fund of the Russian Federation assessed additional insurance premiums, penalties and a fine of 5 million rubles for the joint-stock company. The insured applied to the arbitration court, reached the Supreme Court, but lost in all instances. As the courts have pointed out, the relationship between the JSC and the board of directors, as well as the audit commission, are civil law. Payment of remuneration to members of the Board of Directors is related to their performance of management functions, and to members of the Audit Commission - to their performance of control functions. Therefore, insurance premiums are charged on the disputed amounts (determination of the Supreme Court of November 25, 2015 No. 309-KG15-11902).

CC decision

The Constitutional Court put an end to this dispute, pointing out the following. In accordance with Federal Law No. 208-FZ of December 26, 1995 “On Joint Stock Companies”, members of the Board of Directors and the Audit Commission assume the responsibility to perform the function of managing and (or) controlling the activities of the company. In essence, we are talking about the conclusion of an agreement between the company and members of the board of directors and the audit commission. Paragraph 2 of article 64 and paragraph 1 of article 85 of Law No. 208-FZ provide for two types of payments to members of the board of directors and the audit commission: compensation for expenses associated with the performance of a person's functions and remuneration.

Compensation of expenses is not a consideration for the members of the board of directors or the audit commission for the performance of their contractual duties; it is designed to compensate for the actual expenses (costs) incurred by these persons in connection with the implementation of their activities. Such payments are not subject to insurance premiums on the basis of Article 9 of the Federal Law of July 24, 2009 No. 212-FZ.

But remuneration is paid in connection with the performance of duties by members of the board of directors and the audit commission, which characterizes it as a counter provision of the company for the performance of these duties by persons. Relations between the board of directors of the company, as well as the audit commission and the company are civil law. Thus, remuneration to members of the board of directors and the audit commission in connection with the performance of their duties of managing and controlling the activities of the company is subject to insurance premiums. Moreover, regardless of whether the condition for the payment of this remuneration is contained in the contract concluded between the member of the relevant body and the JSC, the high court pointed out.

For remuneration to members of the board of directors and the audit commission (remuneration is accrued monthly)?

On this issue, we take the following position:

Payments to members of the board of directors and the audit committee are generally subject to insurance premiums.

Position justification:

According to paragraph 1 of Art. 64 of the Federal Law of December 26, 1995 N 208-FZ "On Joint-Stock Companies" (hereinafter - Law N 208-FZ), the general management of the company's activities is carried out by the board of directors (supervisory board) of the company (with the exception of resolving issues referred by Law N 208-FZ to competence of the general meeting of shareholders).

Clause 2 of this article provides for the possibility of paying members of the board of directors during the period of their performance of their duties remuneration or compensation for expenses related to the performance of their functions as members of the board of directors of a joint-stock company, based on a decision of the general meeting of shareholders. The amounts of such remunerations and compensations are also established by the decision of the general meeting of shareholders.

To exercise control over the financial and economic activities of the company, the general meeting of shareholders in accordance with the charter of the company elects an audit commission (auditor) of the company. By decision of the general meeting of shareholders, members of the audit commission (auditor) of the company during the period they perform their duties may be paid remuneration and (or) reimbursed for expenses related to the performance of their duties. The amount of such remuneration and compensation is established by the decision of the general meeting of shareholders (clause 1, article 85 of Law N 208-FZ).

In accordance with Part 1 of Art. 5 of the Federal Law of July 24, 2009 N 212-FZ "On insurance contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund" (hereinafter - Law N 212-FZ) organizations making payments and other remuneration to individuals persons are recognized as payers of insurance premiums.

The object of taxation of insurance premiums for them are, among other things, payments and other remuneration accrued in favor of individuals in the framework of labor relations and civil law contracts, the subject of which is the performance of work, the provision of services (part 1 of article 7 of Law N 212 -FZ). In accordance with Part 1 of Art. 8 of Law N 212-FZ, the basis for calculating insurance premiums for paying organizations is determined as the amount of payments and other remunerations provided for in Part 1 of Art. 7 of Law N 212-FZ, accrued for the billing period in favor of individuals, with the exception of the amounts specified in Art. 9 of Law N 212-FZ. Remuneration to members of the Board of Directors and the Audit Commission in the list of payments named in Art. 9 of Law N 212-FZ, are not included.

Thus, the answer to the question of the accrual of insurance premiums on the benefits in question will depend on whether they are recognized:

Payments made within the framework of an employment relationship;

Payments made under civil law contracts, the subject of which is the performance of work, the provision of services.

Law N 208-FZ does not directly provide that a company and a member of the board of directors should be bound by civil law or. According to Art. 11 of the Labor Code of the Russian Federation, labor legislation does not apply to members of the board of directors (supervisory boards) of organizations (with the exception of persons who have concluded an employment contract with this organization). Based on Art. 56 of the Labor Code of the Russian Federation, an employment contract is an agreement between an employer and an employee, according to which the employer undertakes to provide the employee with work according to the stipulated labor function, to ensure working conditions provided for by labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations and this agreement, timely and in full pay the employee wages, and the employee undertakes to personally perform the labor function defined by this agreement, to comply with the internal labor regulations applicable to this employer.

A member of the board of directors does not perform labor functions, and the company is not an employer for him. Mention in Art. 11 of the Labor Code of the Russian Federation of an employment contract means only that a person acting as a member of the board of directors may be in labor relations with the company on other grounds, and the norms of labor legislation are applied to such labor relations. Thus, the activities of members of the board of directors are not regulated by labor legislation. Therefore, payments to members of the board of directors cannot be called payments made within the framework of an employment relationship.

Unlike members of the board of directors, members of the audit commission art. 11 of the Labor Code of the Russian Federation are not directly excluded from the number of persons who are not subject to the norms of labor legislation. At the same time, a cumulative analysis of the provisions of the Labor Code of the Russian Federation and Law N 208-FZ allows us to conclude that payments to members of the audit commission are also not payments made within the framework of labor relations. So, for example, Art. 15 of the Labor Code of the Russian Federation establishes that labor relations are relations based on an agreement between an employee and an employer on the personal performance by an employee of a labor function for payment. That is, a person who is in an employment relationship with an employer is required to pay wages, from paragraph 1 of Art. 85 of Law N 208-FZ it follows that remuneration to a member of the audit commission may be paid by decision of the general meeting, that is, a member of the audit commission, in principle, may not receive the specified remuneration. In addition, the same Art. 15 of the Labor Code of the Russian Federation provides for the obligatory subordination of the employee to the rules of the internal labor schedule when the employer ensures working conditions. Law N 208-FZ does not impose such obligations on the members of the audit commission.

Thus, in our opinion, remuneration to members of the Board of Directors and members of the Audit Commission is not paid within the framework of labor relations. At the same time, it does not matter that the persons who are members of the board of directors and audit commissions are at the same time in labor relations with the company.

As for civil law relations, in judicial practice the opinion prevails that the relations arising between the company and members of the board of directors, the audit commission are civil law. At one time, the Presidium of the Supreme Arbitration Court came to this conclusion in relation to the UST (paragraph 2 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of March 14, 2006 N 106) (see also the decision of the Leningrad Regional Court of October 6, 2010 N 33-4866 / 2010, section Code of the Russian Federation" Certificate of the Kemerovo Regional Court dated March 15, 2007 N 01-19 / 150 on the practice of considering civil cases by the courts of the region in 2006 on the basis of cassation and supervisory data).

At the same time, the courts consider that the payment of these remunerations is connected with the performance of managerial functions by members of the board of directors, and with the performance of control functions by members of the audit commission on the basis of a civil law contract for the provision of services. In favor of this point of view is the definition of the concept of "service", given in Art. 2 of Law N 212-FZ, is an activity, the results of which do not have a material expression, are realized and consumed in the process of carrying out this activity. Hence, accordingly, it is concluded that the remunerations in question are subject to insurance premiums (determination of the Supreme Arbitration Court of the Russian Federation dated 05.12.2013 N VAC-17574/13, decisions of the Arbitration Court of the Far Eastern District dated 08.13.2015 N F03-3163/15 in case N A73-849 / 2015, the First Arbitration Court of Appeal dated 04/06/2015 N 01AP-1221/15, the Seventeenth Arbitration Court of Appeal dated 03/16/2015 N 17AP-1438/15, dated 02/25/2015 N 17AP-526/15, FAS of the Ural District dated 05.11. 2013 N F09-9127 / 13 in case N A50-25124 / 2012, dated 19.08.2013 N F09-7396 / 13 in case N A07-17492 / 2012 and others). Important, in our opinion, is the fact that in the situations considered by the courts, it was about the payment of monthly remuneration to members of the board of directors and the audit commission. And, when making decisions, the judges considered "the specific factual circumstances and the evidence presented by the parties in their totality and interconnection." The decisions were made taking into account the circumstances of "the systematic nature of the payments, the circle of persons to whom they were made."

At the same time, the official position is the opposite - these remunerations are not subject to insurance premiums (see, for example, paragraph 1 of the letter of the Ministry of Labor of Russia dated 02.09. 2015 N 02-09-11/06-5250). A similar approach was also previously presented in the letters of the Ministry of Health and Social Development of Russia dated 05.08.2010 N 2519-19 (paragraph 6 of the letter), dated 07.05.2010 N 1145-19, dated 01.03.2010 N 421-19: due to the fact that remuneration members of the board of directors are not made on the basis of labor or civil law contracts, the subject of which is the performance of work, the provision of services, but on the basis of a decision of the general meeting of participants in the joint-stock company, such remuneration is not subject to insurance premiums. It should be noted that the positions that the activities of the members of the audit commission are not based on labor or civil law contracts were also adhered to by specialists of the Ministry of Finance of Russia, explaining the taxation of their UST (letters of the Ministry of Finance of Russia dated April 16, 2007 N 03-04-06-02 / 72 , dated 02.03.2006 N 03-03-04/1/166).

Thus, the question of accruing insurance premiums for payments to members of the board of directors and the audit commission currently does not have a clear answer * (1), at least due to the fact that the actual circumstances of the case for policyholders may develop differently (periodicity of payments, the existence of labor relations with members of the board of directors and the audit commission when they are employed in other positions in the company, etc.).

For example, the payment of monthly remuneration to such persons may indicate civil law relations related to the performance of managerial functions, which may be subject to insurance premiums. A risk factor is also the payment of remuneration systematically (as in the case of bonuses) and in the manner established for the payment of wages for work in other positions in the organization. It was with this kind of information in mind that the above judgments were made. The same conclusions in a situation where payments were made monthly and were of a systematic nature are presented in the decisions of the Eighteenth Arbitration Court of Appeal dated 12/19/2013 N 18AP-11924/13, FAS of the Ural District dated 04/16/2014 N F09-1602/14 in case N A07 -10812/201. It is interesting that, for example, in the decision of the Sixth Arbitration Court of Appeal dated 01.06.2015 N 06AP-2262/15, the arguments of the company, given in the appeal, about the unreasonable non-use by the court of the previous instance of the letters of the Ministry of Health and Social Development, that the considered payments cannot be an object and the basis for calculating insurance premiums were the subject of research and received a proper assessment, with which the court found no reason to disagree, concluding that it was necessary to calculate insurance premiums.

At the same time, in another case, the court upheld the insured. So, in the decision of the Seventeenth Arbitration Court of Appeal dated April 23, 2014 N 17AP-4750/14, the basis for additional accrual of insurance premiums for 2010-2012. was unlawful, in the opinion of the PFR Department, non-inclusion in the taxable base for insurance premiums of the remuneration paid to the secretary of the board of directors on the basis of a decision of the general meeting of shareholders. The court concluded that the nature of the relationship between the payer and the employee was decisive for determining the taxable base for insurance premiums, therefore, payments to the secretary of the Board of Directors of the company are not subject to insurance premiums, as those made on the basis of a decision of the general meeting of shareholders outside the framework of labor relations. The fact that the specified person was also an employee of the company does not change the legal nature of the payments, since the functions of the secretary of the Board of Directors were performed outside the scope of the employment contract, are not related to the conclusion of a civil law contract, the subject of which is the performance of work, the provision of services; The payment was made from net income. An example of a decision in favor of the payer of insurance premiums is also the decision of the Sixth Arbitration Court of Appeal dated April 6, 2012 N 06AP-971/12, which considered the situation of paying remuneration to members of the board of directors, members of the audit commission, the secretary of the board of directors based on the decision of the general meeting of shareholders. The remuneration was paid on the basis of an order following the results of the general annual meeting of the JSC.

In our opinion, payments to members of the board of directors can be qualified as payments in the framework of civil law relations related to the provision of services for the management of the organization, which entails the need to tax them with insurance premiums, with the exception of payments to members of the board of directors specified in Part 1 of Art. 2 tbsp. 9 of Law N 212-FZ. If payments to members of the board of directors are of a compensatory nature in connection with the performance of their respective functions, then the provisions of paragraphs. "g" p. 2 h. 1 art. 9 of Law N 212-FZ, on the basis of which the expenses of an individual in connection with the performance of work, the provision of services under civil law contracts are not subject to insurance premiums. The indicated expenses must be documented (letters of the Ministry of Labor of Russia dated February 26, 2014 N 17-3 / B-80, the Ministry of Health and Social Development of Russia dated August 6, 2010 N 2538-19 (paragraph 6 of the letter)).

In conclusion, we give clarifications from the letter of the Ministry of Labor of Russia dated August 22, 2014 N 17-3 / B-400: if members of the board of directors are in labor relations with the company and manage the current activities of the company (, lawyer, etc.), then the employment contract only payments are provided for the performance by these persons of work in the relevant positions according to the staffing table. An employment contract cannot provide for an employer's obligation to pay remuneration to an individual as a member of the board of directors. Therefore, these payments should be differentiated. And, since remuneration to members of the board of directors is made on the basis of a general meeting of shareholders of the company, and not in accordance with labor agreements or civil law contracts, the subject of which is the performance of work or services, then on the basis of the provisions of part 1 of Art. 7 of Law N 212-FZ, such remuneration is not subject to insurance premiums.

The foregoing can be applied to payments in favor of the members of the Audit Commission.

Thus, in each specific case, when deciding on the issue of accruing contributions, one must proceed not only from the fact that the person receiving the payment is a member of the board of directors or the audit commission, but precisely from the essence of the existing relationship.

Note:

The fulfillment by the payer of insurance premiums of written explanations of the authorized body on the procedure for calculating and paying insurance premiums given personally to him or to an indefinite circle of persons excludes the possibility of holding him liable (fines) for non-payment of insurance payments and charging him penalties (part 9 of article 25, paragraphs 3 part 1 article 43 of the Law N 212-FZ). However, despite the explanations provided, the presence of court decisions shows that the territorial bodies of the PFR, when conducting inspections of insurers, upon discovering certain circumstances, insist on the need to include payments in the form of remuneration to members of the board of directors in the base taxed with insurance premiums. When deciding whether or not to impose insurance premiums on payments to members of the board of directors and the audit commission, we recommend that organizations in this situation send a request to the territorial offices of the funds and check with them whether they agree with the above explanations of the Ministry of Labor of Russia and the FSS of Russia.

Encyclopedia of solutions. Accounting for remuneration to members of the board of directors.

Prepared answer:
Legal Consulting Service Expert GARANT
Volkova Olga

Response quality control:
Reviewer of the Legal Consulting Service GARANT
auditor, member of MoAP Melnikova Elena

The material was prepared on the basis of an individual written consultation provided as part of the Legal Consulting service.
*(1) The same conclusion and all the above arguments are also valid with regard to insurance premiums for compulsory social insurance against industrial accidents and occupational diseases (hereinafter referred to as contributions from the National Assembly and the PZ). These contributions are calculated in accordance with the Federal Law of July 24, 1998 N 125-FZ "On Compulsory Social Insurance against Industrial Accidents and Occupational Diseases" (hereinafter - Law N 125-FZ).

According to paragraph 1 of Art. 20.1 of Law N 125-FZ, payments and other remunerations made by policyholders in favor of the insured within the framework of labor relations and civil law contracts are recognized as the object of taxation of contributions from the NC and PZ, if in accordance with the civil law contract the insured is obliged to pay insurance premiums to the insurer.

That is, the object of taxation with insurance premiums for insurance against the National Assembly and PZ is determined in the same way as the object of taxation with insurance premiums in the Pension Fund of the Russian Federation, the FSS of the Russian Federation and the Compulsory Health Insurance Fund, provided for by Law N 212-FZ. At the same time, if we talk about a civil law contract, then, as it directly follows from paragraph 1 of Art. 20.1 of Law N 125-FZ, the object of taxation of contributions from the National Assembly and the PZ arises only if the agreement between the parties provides for the payment of these contributions. We believe that in the situation under consideration there is no need to talk about compliance with this condition, in connection with this we believe that contributions from the NC and PZ for remuneration to members of the board of directors and the audit commission are not accrued.

"Taxes" (newspaper), 2007, N 27
Question: The Chairman of the Board of Directors is paid monthly remuneration for performing the functions of Chairman of the Board of Directors based on the decision of the Board of Directors, as well as travel expenses. Costs are charged to account 91 at the expense of the current year's profit. UST is not taxed. Are our actions legal?
Answer: According to paragraph 2 of Art. 64 of the Federal Law of December 26, 1995 N 208-FZ "On Joint-Stock Companies", by decision of the general meeting of shareholders, members of the board of directors (supervisory board) of the company during the period they perform their duties may be paid remuneration and (or) reimbursed for expenses related to the execution their functions as members of the board of directors (supervisory board) of the company.
The amount of such remuneration is established by the decision of the general meeting of shareholders.
In accordance with paragraphs. 11 p. 1 art. 48 of the Federal Law "On Joint-Stock Companies", the competence of the general meeting of shareholders includes the distribution of profit, that is, the net profit of the joint-stock company remaining after paying income tax, including the possibility of directing part of the company's retained earnings to pay remuneration to members of the boards of directors.
According to paragraph 3 of Art. 48 of this Law, the general meeting of shareholders cannot consider and make decisions on issues that are not within its competence. Making decisions on other payments not from net profit is within the competence of the executive body of the company. Thus, in accordance with civil law, the general meeting has the right to decide on the payment of remuneration to members of the board of directors only from the net profit of the company.
As a result, a joint-stock company cannot guarantee mandatory payment of remuneration to members of the company's board of directors.
In accordance with paragraph 1 of Art. 270 of the Tax Code of the Russian Federation, expenses in the form of amounts of dividends accrued by the taxpayer and other amounts of profit after taxation are not taken into account when determining the tax base for income tax.
In accordance with paragraph 21 of Art. 270 of the Tax Code of the Russian Federation, when taxing profits, expenses in the form of expenses for any types of remuneration provided to management or employees other than remuneration paid on the basis of employment agreements (contracts) are not taken into account.
Thus, payments of any types of remuneration and compensation provided to management or employees can be accepted as expenses taken into account for profit tax purposes only if such payments are provided for by the legislation of the Russian Federation, collective and (or) labor contracts.
In addition, the basis for recognizing for the purposes of taxation profits the costs of wages for employees who are not on the staff of the taxpaying organization for the performance of work by them are civil law contracts concluded with them (paragraph 21 of article 255 and subparagraph 41 of paragraph 1 article 264 of the Code).
It should be additionally taken into account that, according to the Federal Law "On Joint-Stock Companies", the direct management of the current activities of a joint-stock company is carried out by the sole executive body of the company (director, general director) or the sole executive body of the company and the collegial executive body of the company (board, directorate), whose competence is determined by the charter society. The competence of the board of directors (supervisory board) of the company includes resolving issues of general management of the company's activities, which, in the opinion of the Department, cannot be qualified as management of the organization or its individual divisions in the sense of paragraphs. 18 p. 1 art. 264 of the Code.
Thus, the expenses of a taxpayer - a joint-stock company for the payment of remuneration to members of the Board of Directors, made not on the basis of labor or civil law contracts with the company, but on the basis of the company's charter or the decision of the founder, cannot be attributed to the reduction of the tax base when calculating income tax .
As for the issue of paying a single social tax on the payment of remuneration to members of the board of directors, it should be borne in mind that in accordance with paragraph 1 of Art. 236 of the Code, the object of taxation of the unified social tax for taxpayers-organizations is recognized as payments and other remuneration accrued by taxpayers in favor of individuals under labor and civil law contracts, the subject of which is the performance of work, the provision of services (with the exception of remuneration paid to individual entrepreneurs), and also under copyright agreements.
Thus, given that the relationship between the members of the board of directors and the organization (company) is not built on the basis of the above-mentioned agreements, the remuneration paid to the members of the board of directors cannot be the object of taxation by the unified social tax on the basis of the provisions of paragraph 1 of Art. 236, as well as by virtue of paragraph 3 of Art. 236 of the Tax Code of the Russian Federation, as not reducing the tax base for profits.
At the same time, if an employment or civil law contract is concluded with a member of the board of directors, payments and remuneration accrued by him for the performance of his labor duties or the provision of services for managing an organization in accordance with a civil law contract will be taken into account for profit taxation and subject to UST.
However, we draw your attention to the following provision of the Federal Law "On Joint Stock Companies".
Members of the collegial executive body of the company may not constitute more than one-fourth of the board of directors (supervisory board) of the company. A person exercising the functions of the sole executive body cannot be simultaneously the chairman of the board of directors (supervisory board) of the company.
If a member of the board of directors is also a member of the collegial executive body of the company, only in this case can an employment contract be concluded with him. In all other cases, members of the board of directors cannot be on the staff of the company and an employment contract cannot be concluded with them, since members of the board of directors (with the exception of members of the collegial executive company elected to the board of directors) carry out general management of the company's activities (functions of the supervisory board ).
If members of the board of directors are not on the staff of the organization, then payments made in their favor do not reduce the tax base for income tax in accordance with paragraph 21 of Art. 270 of the Code.
The above opinion is shared by the Ministry of Finance in its Letters: dated 01.26.2007 N 03-04-07-02 / 2, dated 08.12.2006 N 03-03-04 / 1/824, as well as the Federal Tax Service for Moscow dated 13.11.2006 N 21-11/ [email protected]
However, analyzing judicial practice, we come to the conclusion that the issue of attributing the considered remuneration to expenses is currently controversial, but it is he who is decisive for the taxation of the UST.
The Federal Antimonopoly Service of the North-Western District, in Resolution No. A13-5341 / 04-21 of December 10, 2004, concluded that it was legal to include remuneration to the chairman of the board of directors in expenses and that clause 21 of Art. 270 of the Tax Code of the Russian Federation, referring to the following facts. The staffing table of the company provided for the position of chairman of the board of directors, and an employment contract was concluded with the person holding this position. At the same time, wages were paid for the performance of the duties of chairman of the board of directors.
Here is what paragraph 2 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 14, 2006 N 106 "Review of the practice of consideration by arbitration courts of cases related to the recovery of a single social tax" says: "... the activities of the board of directors of a joint-stock company and the relationship between the board of directors of the company and the company itself are governed by the norms of civil law.These relations are civil law ... Therefore, the payment of remuneration to members of the board of directors of the company is associated with their performance of managerial functions.Such activities fall under the object of taxation of the UST, provided for in paragraph 1 of Article 236 NK RF".
At the same time, according to paragraph 3 of Art. 236 of the Tax Code of the Russian Federation, any payments will not be subject to UST, if they are not recognized as expenses for profit tax purposes. Thus, remuneration to members of the board of directors may be subject to UST only if it is recognized as an expense for the purpose of taxing profits by virtue of the provisions of Ch. 25 "Corporate income tax" of the Tax Code of the Russian Federation. At the same time, the nature of payments (systematic or not) in this case does not matter.
However, the Supreme Arbitration Court of the Russian Federation considered the issue of taxing the UST in isolation from income tax. One can only assume that he automatically considered the remuneration of board members as expenses for running the organization. However, such a conclusion, even coming from the Supreme Arbitration Court of the Russian Federation, is highly controversial in the light of the current legislation.
The Federal Antimonopoly Service of the West Siberian District of October 10, 2006 in case N Ф04-8056 / 2005 (27420-А27-32) considered that payments to employees who, along with their main work (under an employment contract), perform additional functions as part of the board of directors, relate to labor costs as an additional payment for combining professions, subject to inclusion in the tax base for the unified social tax. The court assessed the costs of remuneration in relation to travel expenses.
This fact must be taken into account when deciding on the execution of payments to the chairman of the board of directors.
Travel expenses are provided for by labor legislation as compensation for the performance of duties by an employee in accordance with a concluded employment contract.
If an employment contract is not concluded with the chairman of the board of directors, then based on the decision of the board of directors, remuneration and compensation for the performance of the duties of the chairman may be paid, but these payments cannot be attributed to travel expenses provided for by the Labor Code.
Otherwise, the organization faces the risk of qualifying relations with the chairman of the board of directors as labor or civil law.
At the same time, we remind you that in accordance with paragraph 1 of Art. 34.2 of the Tax Code of the Russian Federation, which regulates the powers of financial authorities in the field of taxes and fees:
"The Ministry of Finance of the Russian Federation gives written explanations to taxpayers, payers of fees and tax agents on the application of the legislation of the Russian Federation on taxes and fees, approves tax calculation forms and forms of tax returns that are mandatory for taxpayers, tax agents, as well as the procedure for filling them out."
Accordingly, if an organization decides to keep tax records in accordance with the explanations of the Ministry of Finance, this will save it from penalties during tax audits.
Signed for print
03.07.2007

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