Is the commercial director an employee? If the CEO is a foreigner

The sole founder is the director of the LLC: is he an employee of the organization and should he receive a salary?

The topic of today’s article has come up more than once in questions from our readers, and now it’s time to clarify one of the most common questions: can an LLC not have employees?

First, perhaps, let's speculate a little. In what situation would you even be interested in this question? When the LLC does not have a single employee hired under an employment contract. But what about the director, who is also the head of the organization? Why is he not an employee? What if the founder of the LLC is at the same time a manager who carries out all the necessary activities himself, and simply does not need employees? Is he an employee or not an employee? And if you are an employee, do you have to pay him a salary?

Let's consider different situations

Let's look at the situation a little more broadly. An LLC always has founders, either several of them or one. Now about each situation in order.

Situation 1: several founders (or one founder), the director is an outsider.

In this case, the general director is clearly recognized as an employee of the LLC, with whom the founders must enter into an employment contract. There may be no other employees in the company, since all the work, for example, is done by the founders themselves. The director, as an employee of the organization, must receive a salary, and insurance premiums must be paid for him. The founders receive income in the form of dividends.

Situation 2: several founders, the director is one of them.

In this case, an employment contract must also be signed with the founder, who is entrusted with the responsibilities of the head of the company - that is, he is recognized as an employee of the organization. The signature on the employment contract on the part of the employer is placed by another founder. It is impossible not to appoint a director; the company must have a director who is needed at a minimum to sign documents. The founder, appointed director, must receive a salary and insurance premiums must be paid for him. In addition, he has the right, like the other founders, to claim dividends.

The only conclusion regarding these two situations is this: the head of the organization is recognized as its employee, and accordingly, the LLC has at least one employee - its director!

Situation 3: one founder is also a manager.

This case is the most interesting and problematic. There are a lot of cases when an LLC is founded by one person. It is quite natural that in most of these cases, the sole founder assumes the responsibility for managing the company himself - this is not prohibited by law. What about the employment contract here?

The main problem of this situation is that it is impossible to sign an employment contract, since the same person will sign it on both sides, and this, as you understand, is somehow wrong. On this issue, the opinions of government agencies still do not coincide, and there is still no single and unambiguous answer. But in general we can say the following:

1. The absence of a contract does not mean the absence of an employment relationship;
2. Labor relations arise both at the time of signing the employment contract and at the time the employee is actually admitted to his duties;
3. Relations arising as a result of the appointment of a director are characterized as relations based on an employment contract.

It turns out that such a founder leader is an employee of the organization on the basis of a decision to assign these responsibilities to himself. It is recommended to formalize this fact by order.

The next problem: should such a manager receive a salary? In theory, according to Art. 21 of the Labor Code of the Russian Federation, must. The amount of remuneration is usually reflected in the employment contract, but in the situation described, this document is missing. What should I do? In this case, the salary amount can be indicated in the staffing table - this document must be drawn up in any case. By the way, let’s immediately answer the question: why do you need a staffing table in an LLC with one employee, who is also its founder? It is very important to prepare personnel documents in a timely and correct manner. Those who say that they can do without this will change their minds after the first inspection by the labor inspectorate.

Now let's talk about this. The founder and general director in one person can receive both a salary and dividends.

1. And many people think this: since there is no employment contract, the salary is not fixed anywhere, then you don’t have to pay wages, you don’t have to pay contributions either (they are calculated from your salary), but you only receive dividends - previously the personal income tax rate on them was lower, then This approach was beneficial in that the tax amounts were lower. But this approach can lead to not very pleasant consequences:
   • They are paid no more than once a quarter from the net profit that remains after paying all taxes. The payment is made on the basis of the founder’s decision, which must be drawn up on paper in the form of an order, and not “if he wanted, he paid”;
   • Payment of dividends is possible only when the authorized capital of the LLC is fully paid, the company has no signs of bankruptcy, and the amount of net assets after the planned payments does not decrease below the amount of the authorized capital (to which, if any, a reserve fund is also added).
2. If the above conditions are not met, and dividends are paid according to the “as desired” scheme, then the tax authorities will simply reclassify these amounts into wages. What will happen next?
   • Now the personal income tax on wages is 13%, a similar rate is used for taxation of dividends - if the rate on dividends was 9% as before, then you would have to pay additional tax;
   • Insurance premiums are paid from wages, but dividends are not paid - the amounts will be recalculated for you into funds.

Conclusion

In this situation, the best solution would be to pay both salaries and dividends. The founder assumes the functions of managing the company by issuing an appropriate order; the salary for calculating wages is reflected in the staffing table. To minimize taxes, the salary can be set in the amount of the minimum wage - it cannot be less than that. By the way, do not forget that the minimum wage changes annually, so you will have to index your own salary every year. Director = founder will receive a salary from which insurance premiums will be paid, as well as dividends in the manner prescribed by law. The payment of dividends must be formalized by an appropriate order. The amounts of salaries and insurance contributions can be taken into account as part of the expenses of the LLC on the basis of an existing order on the assignment of powers, staffing schedule, pay slips and other documents. Naturally, dividends cannot be taken into account in the company's expenses.

Conclusion

Well, finally, some advice: if you are the only founder of an LLC and at the same time its director, and also carry out all the activities independently, then you are probably now thinking, is it possible to do without all these paperwork, controversial issues and problems? You can, for this you had to register as an individual entrepreneur. Therefore, before you go to register an LLC, think about whether you really need it?

Entrepreneurial activity is an independent activity carried out at one’s own risk and aimed at making a profit from the use of property, sale of goods, performance of work or provision of services to persons (Civil Code of the Russian Federation, Art. 2). One way or another, it is associated with the risk of losses in the course of the financial and economic activities of the company and the owners of the company (founders, shareholders) are, of course, responsible for minimizing them.

But at a certain period in the development of any company for the position of executive body(general director, director, manager, etc.) people “from outside” can be hired. The need for them may arise due to the expansion of the scope of professional interests, the desire to develop new areas of business, or the desire of the owners to “step away from business.” Executive agency elected to office by the general meeting of founders (shareholders) or appointed by a decision of the sole participant (shareholder) in accordance with Art. 40 Federal Law “On LLC”, for the period established by the company’s charter.

As is known, in accordance with Art. 16 of the Labor Code of the Russian Federation, labor relations between an employee and an employer arise based on an employment contract concluded in accordance with the Labor Code of the Russian Federation. The appointed managing person is responsible for his actions (inactions) to the Company within his competence. The list of powers within the competence of the manager is determined by the company's charter.

Several types of responsibility are assumed: responsibility provided for by labor legislation; liability provided for by civil law; subsidiary liability; liability provided for by administrative legislation; liability provided for by criminal law.

Responsibility provided for by labor legislation

According to the labor legislation in force in our country, the manager, like other employees, bears disciplinary and financial responsibility. If a hired director (head of a department or division) violates laws, does not comply with the terms of a collective agreement or other labor regulations, then the collective of employees has the right to write a statement to the employer (represented by the organization itself or an individual entrepreneur). After confirmation of the violation, material or disciplinary sanctions may be applied to the manager, up to and including dismissal (types of disciplinary sanctions are specified in Article 192 of the Labor Code of the Russian Federation).

Issues arising in connection with the proceedings by courts about financial liability certain categories of workers are considered in Resolution No. 52 “On the application by courts of legislation regulating the financial liability of employees for damage caused to the employer,” adopted at the Plenum of the Supreme Court of the Russian Federation on November 16, 2006. However, even the presence of this document does not always help in practice.

Existing norms are largely contradictory. On the one hand, they establish a general rule that the manager must compensate his employer for losses. But, for example, losses of limited liability companies can be compensated only when other federal laws do not specify other grounds and the amount of financial liability of the manager.

The Labor Code of the Russian Federation, Art. 277 of which provides that, as a general rule, the head of an LLC bears full financial liability only for direct actual damage caused to the organization. And compensation for losses to them is allowed only in cases provided for by federal laws. The paradox is that Federal Law No. 14-FZ of February 8, 1998 does not establish such cases.

An interesting situation arises with the financial liability of deputy managers and chief accountants of the organization. The Plenum of the Supreme Court of the Russian Federation also did not exclude the full financial liability of these persons, even when the employment contracts do not stipulate the obligation to compensate for direct actual damage to property in full. The specified liability, however, may arise for these employees under other provisions provided for in Art. 243 of the Labor Code of the Russian Federation on grounds, including on a legally concluded written agreement on full financial liability.

As for such sanctions as dismissal of a hired manager, then it can be applied in the following cases:

• adoption of an unfounded decision by the head of the organization, which entailed a violation of the safety of property, its unlawful use or other damage to property (clause 9 of Article 81 of the Labor Code of the Russian Federation);
• a one-time gross violation by the head of the organization of his labor duties (clause 10 of article 81 of the Labor Code of the Russian Federation);
• violation of the rules specified in the employment contract (clause 13 of article 81 of the Labor Code of the Russian Federation).

In addition, Art. 278 of the Labor Code of the Russian Federation provides additional grounds for terminating an employment contract with the head of an organization, namely:

• removal from office of the head of the debtor organization in accordance with insolvency (bankruptcy) legislation;
• adoption by the owner of the organization of a decision on early termination of the employment contract.

In the mentioned cases, the law does not oblige the owner to give any reasons for his decision to terminate the contract.

Liability under civil law

In practice, hired managers are rarely subject to civil liability. However, recently there has been a tendency towards its formation. There can be two grounds for bringing managers to civil liability: 1) violation of the principle of good faith and reasonableness in managing the company; 2) non-compliance with certain rules of law.

Violation of the principle of good faith and reasonableness when managing a company. The hired manager must respect the interests of the company, be loyal to its policies and conduct business in accordance with Russian legislation. The responsibility of the manager is spelled out in Art. 71 of the Law “On Joint Stock Companies” and Art. 44 of the Law “On Limited Liability Companies”: for violation, the manager is obliged to compensate the company for losses caused.

The total cost of losses caused consists of direct damage and lost profits. The amount of direct damage cannot be limited by contract or company charter (Article 277 of the Labor Code of the Russian Federation). Regardless of who makes a claim for compensation against the manager, it can be paid exclusively in favor of the company itself.

Attention! For damage caused to the company, the manager bears full financial responsibility both under the Labor Code (Article 277 of the Labor Code of the Russian Federation) and under the Civil Code. The difference is that according to the Civil Code, not only direct damage is subject to compensation, but also the profit lost by the legal entity. Naturally, the director does not face double compensation for damage; he will compensate it only on the basis of one code.

Failure to comply with certain rules of law. An example of a violation: a hired manager signs a securities prospectus that contains unreliable, incomplete and (or) misleading information (clause 3 of article 22.1 of the Law “On the Securities Market”, clause 4 of article 5 of the Law “On the Protection of Rights and legitimate interests of investors in the securities market"). In this case, the manager is responsible for damage caused not only to the actual shareholder or bondholder, but also to the potential buyer of the securities.

Vicarious liability

Vicarious liability is the responsibility of the manager, founder and other individual for improper fulfillment of obligations to creditors established by law or contract. According to clause 4, art. 10 of the Federal Law “On Insolvency (Bankruptcy)”, the persons controlling the debtor are jointly and severally liable for the monetary obligations of this very debtor - first of all, this is the head of the organization, the chief accountant and the person who had the right to dispose of more than half of the shares or shares of the company.

Examples from judicial practice on bringing to subsidiary liability:

Determination of the Moscow City Court dated April 30, 2009. in case No. 33-10268. In this case, the arbitration manager, who actively defended the interests of the tax inspectorate, proved the existence of a cause-and-effect relationship between the actions of the manager and the occurrence of tax debts and, as a consequence, the bankruptcy of the legal entity. The owner of the company was brought to subsidiary liability and the court decided to collect from him, as an individual, all tax debt in the amount of 15 million rubles.

Resolution of the Federal Antimonopoly Service of the Ural District dated December 24, 2003 in case No. F09-1180/03-GK. The general director of the LLC, also registered as an individual entrepreneur, made an interested party transaction - he sold himself premises belonging to the company. Company approval for such a transaction was not received. Because of this, the arbitration court declared the transaction invalid, and the premises were returned to the company. In a separate claim, damages in the form of lost profits were recovered from the general director.

Resolution of the Federal Antimonopoly Service of the North Caucasus District dated May 27, 2003 in case No. F08-1555/2003. An agreement was concluded with the construction company on behalf of the general director of the LLC for carrying out repair work. Payments for the contractor's work were accrued regularly over six months. However, the repair work itself was not carried out. The deal with the construction organization was declared sham by the arbitration courts. The court recovered damages in the amount of the amount transferred to the builders from the general director.

Responsibility provided for by administrative legislation

Administrative legislation provides for liability for violations in a variety of sectors of a company’s financial and economic activities: from environmental safety to payment of taxes.

• In the field of labor relations

According to Part 1 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, a person who violates labor and labor protection legislation may be fined in the amount of 5 to 50 minimum wages. If a person has previously been subjected to a similar administrative punishment, then he faces disqualification for a period of one to three years (Part 2 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation). In accordance with Art. 5.28 of the Code of Administrative Offenses of the Russian Federation, the employer bears administrative responsibility for evading participation in negotiations on the conclusion of a collective agreement, as well as for violating the deadline for its conclusion.

Sanctions are imposed for failure to provide information necessary for collective bargaining and for unreasoned refusal by the employer or his representative to conclude an agreed upon collective agreement. For failure to fulfill obligations or their violation, a fine is established in the amount of 30 to 50 minimum wages (Article 5.31 of the Code of Administrative Offenses of the Russian Federation).

• In the field of tax and customs law

For violation of the deadline for registration with the tax authority, a fine of 30 minimum wages is provided (Article 15.2 of the Administrative Code). A similar sanction is also provided for evasion of registration (Article 15.3 of the Administrative Code of the Russian Federation), violation of deadlines for submitting information on opening/closing bank accounts (Article 15.4 of the Administrative Code of the Russian Federation) and tax returns (Article 15.5 of the Administrative Code). A fine of up to 15,000 rubles is imposed for gross violation of the rules for accounting for income and expenses, as well as objects of taxation. Offenses in the field of customs are prescribed in Chapter. 16 Code of Administrative Offenses of the Russian Federation.

• In the field of economic activity

First of all, it is worth paying attention to Chap. 14 Code of Administrative Offenses of the Russian Federation “Offences in the field of entrepreneurial activity”. It, for example, prescribes liability for the lack of a license to conduct business (Article 14.1), for violation of advertising legislation (Article 14.3), for the sale of goods, works and services of inadequate quality or in violation of sanitary standards (Article 14.4), for conducting business without a cash register (Article 14.5), for deception and violation of consumer rights (Articles 14.7 and 14.8), for violating the rules for the sale of certain goods, as well as alcoholic beverages (Articles 14.15 and 14.16).

Offenses in the field of rules for the use of natural resources (in particular, land), the subjects of which are often officials, are described in Chapter. 8 Code of Administrative Offenses of the Russian Federation

Liability under criminal law

If you carefully study the criminal and administrative codes, you will easily notice the similarity of some articles. The main difference is the scale of the violations committed and the amount of harm caused (the potential for it to occur). Thus, double liability of a director for one offense is impossible.

Now we will indicate the most common crimes, the subject of which may be the head of an organization.

In the field of labor relations. According to Art. 143 of the Criminal Code of the Russian Federation, a violation of labor protection rules that results in harm to health or death of a person is considered a crime. A manager is prosecuted under this article when he fails to ensure compliance with the rules when carrying out specific work or fails to eliminate violations of which he was aware.

Such actions of a hired director as refusal to hire a pregnant woman or a woman with children under three years of age are criminally punishable; non-payment of wages, pensions, scholarships, benefits and other payments. However, if non-payment of wages occurs due to the difficult financial situation of the enterprise, then the director is not responsible.

In the field of economic relations. We can distinguish the following most common crimes, the subjects of which may be hired heads of organizations:

• carrying out business activities without registration or in violation of registration rules (Article 171 of the Criminal Code of the Russian Federation);
• production, acquisition, storage or sale of unmarked goods and products that are subject to mandatory labeling (Article 171.1 of the Criminal Code of the Russian Federation);
• legalization (laundering) of funds or other property acquired by criminal means (Article 174, 174.1 of the Criminal Code of the Russian Federation);
• illegal receipt of a loan and malicious evasion of repayment of accounts payable (Articles 176 and 177 of the Criminal Code of the Russian Federation);
• coercion to complete a transaction or refusal to complete it (Article 179 of the Criminal Code of the Russian Federation);
• illegal receipt and disclosure of information constituting a trade secret (Article 183 of the Criminal Code of the Russian Federation);
• failure to return funds in foreign currency from abroad and evasion of customs duties (Articles 193, 194 of the Criminal Code of the Russian Federation);
• unlawful actions in bankruptcy (concealment of property, information about property, its size, location or other information about property; transfer of property to other possession, alienation or destruction of property; concealment, destruction, falsification of accounting and other accounting documents, etc.), fictitious and deliberate bankruptcy (Articles 195 - 197 of the Criminal Code of the Russian Federation);
• evasion of taxes and fees, as well as concealment of property at the expense of which taxes should be collected (Articles 199, 199.1, 199.2 of the Criminal Code of the Russian Federation).

Art. deserves special attention. 201 of the Criminal Code of the Russian Federation “Abuse of power”. The basis of such a crime is the presence of a goal of obtaining profit or any advantages. For example, this can happen through the conclusion of a contract that is obviously unfavorable for the organization; lending to obviously insolvent partners; preferential lending to persons who do not have the right to it; concealment of property shortages, etc. Damage caused to a commercial organization is subject to criminal prosecution only upon the application of this organization or with its consent.

Let's sum it up

The position of a manager implies not only various attractive opportunities, wealth and social status, but also a high level of responsibility. The last circumstance should be taken into account if you do not want to one day find yourself liable to the owners. For company owners wishing to use the services of a hired manager, I recommend:

• Reflect the competencies of the executive body in the company's charter.
• Introduce regulations on the executive body, where its functions and responsibilities are spelled out in detail, and also do not forget about control mechanisms by the company owner and regular reports.
• Conclude with the executive body not a framework employment agreement (contracts), but develop an agreement that meets the requirements of labor legislation and includes references to financial responsibility in full.
• Determine the amount of a major transaction in the company's charter.
• Introduce provisions for concluding large transactions, etc.

And finally, I would like to recommend making it a habit to use such an effective procedure as an internal audit (a kind of internal audit) when dismissing the previous manager and appointing a new one.

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Founder and director are the same person

General Director and Founder

I am the founder and CEO

1. The founder of the company (100%), for a legal LLC company, where I am a hired director, buys a share of another legal company. At the notary's office, I and the director of the company being purchased participate in the transaction. I can’t understand what the danger of such a deal is for me, as a hired director?

1.1. Why did you decide that there was some danger in the transaction for you? You, as the head of the company, are involved in registering the transaction.

1.2. Marina, there is no danger for you, except that you, as the general director of the now LLC-founder of another legal entity, will have to accept and understand all the actions and decisions that you will carry out in relation to the subsidiary.
You participate in the transaction as the buyer, since only you can sign the agreement without a power of attorney.

All the best.

1.3. Hello.
In this case, it is necessary to study the purchase and sale agreement itself, the responsibility section, whether this section includes the responsibility of the manager directly.
Any acquisition of an LLC share is determined by some purpose, mainly obtaining more profit. The founders set the task for the director (who signs the agreement) to check the acquired LLC (share) - debts, fines, income, etc. The director engages an auditor, lawyer, etc. to check. depending on the specifics of the LLC. If the inspection is poor, the founders may file claims against the director.

2. The LLC income minus expenses organization was registered in 2009. Activities (earning profits and accounting for expenses since 2017), the founder and the General Director are one person, wages were not accrued or paid to him. There were no hired workers. Now they are registering hired workers with wages. Question: is it necessary to conclude an employment contract with the director and assign him a salary?

2.1. Irina, good day! An employment contract must be concluded with the director, the condition of which is the calculation of wages. And when electing a director, the decision or protocol (depending on the number of participants in the LLC) must contain a clause on concluding an employment contract with the director. This issue is regulated by the norms of the Labor Code of the Russian Federation, the Law “On Limited Liability Companies” and other norms of the current legislation of the Russian Federation.

3. Do I fall into the category of legal entities whose installation of cash registers was delayed until 2021? On May 23, 2019, amendments were made to the law and the installation of cash registers was delayed for individual entrepreneurs who do not have hired employees. I have a travel agency without hired employees, but a legal entity. The form is not an individual entrepreneur, but an LLC (I am the only founder and general director in one person). Is it possible for me to also get a deferment from installing a CCP until 2021?

3.1. No, in this case you do not have any deferment. Because there is no reason. You do not fall under the exceptions specified in the law. You are not an individual entrepreneur, but an LLC, the amendments do not apply to you. The fact that you have an LLC travel agency without hired employees does not provide such a basis. Federal Law "On the use of cash register equipment when making payments in the Russian Federation" dated May 22, 2003 N 54-FZ (latest edition), clause 1.2

3.2. Hello Alena! No, because in accordance with the amendments to the Federal Law “On the use of cash register equipment when making payments in the Russian Federation,” deferment of the installation of cash registers is provided exclusively to individual entrepreneurs. You can only liquidate the LLC and register an individual entrepreneur to postpone the installation of a cash register, or install a cash register in accordance with the requirements of current legislation.

3.3. Good afternoon According to the Information of the Federal Tax Service dated June 10, 2019 “CHANGES IN THE PROCEDURE FOR APPLICATION OF ONLINE CASH CARDS”,
In accordance with the document HOA, SNT, housing cooperatives may not
apply CCP if the services of these organizations, as well as utilities
were paid in cashless form.
Educational institutions are also exempt from using online cash registers.
organizations, cultural institutions, medical organizations and
physical education and sports organizations, if all payments are non-cash.
In the field of transport, when selling travel tickets by drivers and
conductors are asked to print a unique link or code on the ticket,
according to which the client will be able to receive his check the next day.
It is allowed to use “cloud” cash registers in the courier sector
delivery and other mobile commerce, transport and other services,
provided outside of retail outlets (home services: manicure, haircut from
salon). In such cases, cash register users instead of issuing a cash receipt
has the right to limit itself to demonstrating the QR code on any computer
device (tablet, phone, etc.).
In addition, the transition to online cash registers for
individual entrepreneurs without employees. Upon conclusion of the first
employment contract, the individual entrepreneur must register the cash register within 30 days.
In addition, the deferment applies only to those individual entrepreneurs who sell
goods of own production (confectioners, artists, tailors, etc.)
or personally provides services, such as consulting or guiding
online seminars.
Your category is not in this list.

3.4. Will not work. IP only. The law on deferment of online cash registers until July 1, 2021 for individual entrepreneurs without employees has been adopted and entered into force. If you are an individual entrepreneur without employees with whom employment contracts have been concluded and at the same time:
- sell goods of your own production; - or perform work;
- provide services.
Then you have a deferment on the use of online cash registers until July 1, 2021 in relation to the above types of activities.

Federal Law No. 129-FZ dated 06.06.2019 “On amendments to the Federal Law “On the use of cash register equipment when making payments in the Russian Federation”.

3.5. Good day Alena

Based on the amendments made to Federal Law-54 “On the Application of CCP”, they allow you, as an LLC without hired employees, to take advantage of the deferment
In mid-2018, on the basis of Federal Law No. 192-FZ dated 07/03/18, organizations and entrepreneurs also received a deferment until July 2019 - which means they fell into the “third wave” when making: settlements with individuals who are not entrepreneurs, by bank transfer (except for payments using electronic means of payment); calculations when accepting payments for residential premises and utilities, including contributions for major repairs; offset and return of prepayment and (or) advances; operations to provide loans to pay for goods, works, services; operations to provide or receive other consideration for goods, works, services; sales of travel documents (tickets) and coupons in the vehicle interior.

3.6. On June 7, the following law came into force. So, CCT is not needed when:
- Individual entrepreneurs without employees sell goods of their own production, perform work or provide services (temporary exemption, until July 2021);
- shoe covers are sold at retail (including through vending machines);
- Individual entrepreneurs rent out residential premises along with parking spaces in an apartment building;
- An HOA or housing cooperative accepts money from individuals by bank transfer (except when the client has presented a bank card) for utilities or for services provided to members of this organization;
- organizations provide services in the field of education, culture, sports and receive payments from individuals by bank transfer (except when the client has presented a bank card);
- Individual entrepreneurs sell tickets to the state or municipal theater by hand or from a tray without the use of communication networks.

As you can see, the provisions of this law do not apply to travel agencies, so unfortunately you do not have the right to a delay in installing a cash register.
You should register as an individual entrepreneur as quickly as possible - this will take three working days and conduct your activities as an individual entrepreneur. At the same time, you will need to make a decision to liquidate your legal entity
Federal Law No. 129-FZ dated 06.06.2019 “On amendments to the Federal Law “On the use of cash register equipment when making payments in the Russian Federation”.
Article 2

1. Establish that individual entrepreneurs who do not have employees with whom employment contracts have been concluded, when selling goods of their own production, performing work, or providing services, have the right not to use cash register equipment when paying for such goods, work, services until July 1, 2021 .
2. The individual entrepreneurs specified in part 1 of this article, in the event of concluding an employment contract with an employee, are obliged to register cash register equipment within thirty calendar days from the date of conclusion of such an employment contract.

4. There is a hired director in an LLC, he wants to become a member of this LLC, in which there is only one founder. How to fill out an application correctly and to whom does he submit it?

4.1. Veronica, hello!
In this case, the purchase and sale of a share in the authorized capital is formalized in accordance with the Charter and Federal Law-14 on LLC. The contract is certified by a notary. Changes on the sale of shares and the number of participants in the LLC are made to the Unified State Register of Legal Entities by submitting the relevant documents to the Federal Tax Service.

5. There is an LLC. All signs of insolvency. There is no money for bankruptcy. The only founder left in the LLC. The director was hired and resigned. The founder did not manage the LLC and did not receive any income. Activities have stopped. What should the LLC founder do and what kind of liability should he expect based on the latest, new laws on bankruptcy and subsidiary liability outside of bankruptcy?

5.1. Alexey, hello.
Do you have any debts to the state? Taxes, insurance premiums, rent payments?
And what is the total amount of debt owed to all creditors?

5.2. If an organization does not conduct business for 12 months, does not submit tax reports and there is no cash flow through the account, then the tax authority makes a decision to exclude the LLC from the Unified State Register of Legal Entities; for the founder and manager there are a number of legal consequences such as the impossibility of 3 years from the date of exclusion from the Unified State Register of Legal Entities becomes participants and managers of other legal entities, also the fact that the director resigned and did not report this to the tax office, that is, he is currently recorded as a director, also does not exempt from legal consequences, but if after the decision is made about the upcoming exception (which is published in the newsletter), creditors will appear and file a claim against the LLC, then it is quite possible that the creditor may initiate bankruptcy proceedings (for debts over 300,000) and if he proves that you or the manager, through your actions, led to the situation that the LLC is more is not solvent, then it is possible to bring the responsible persons to subsidiary liability.

6. The director of the ANO, who is also the founder without employees, does not receive a salary, submits zero reports to the Social Insurance Fund and Pension Fund, is already a pensioner, receives a pension. Is he a working pensioner and is he entitled to indexation of his pension?

6.1. Our pension is formed from contributions to the Pension Fund of the Russian Federation; deductions are not made, therefore indexation is not required.

7. Please tell me, is it possible to reissue the guarantee to the founder? And how to do it. He agrees. I'm a hired director.

7.1. If the question is about a bank loan, then this can only be done with the consent of the bank.

If you find it difficult to formulate a question, call the toll-free multi-line phone 8 800 505-91-11 , a lawyer will help you

Publication

My own director

Vladimir N., together with his partner, were the founders of the Limited Liability Company “M...”, which was engaged in the production of printing products. Vladimir assumes the functions of the head of the organization, and his companion is the chief accountant. The company's staff was small: in addition to the manager and chief accountant, there were 10 workers engaged in production.

One day an inspector from the State Labor Inspectorate came to the office of M... LLC. Looking through the company's documents, the inspector did not find among them an employment contract with the head of the organization. At the same time, there was an order issued and signed by Vladimir N., stating that he was assuming the position of general director. But the order did not contain any information about the manager’s salary. Vladimir explained that he does not pay himself a salary, since he is the founder of the company, and not an employee. However, this explanation did not satisfy the inspector. The inspector issued an order obliging the company to conclude an employment contract with the general director, which would reflect the amount of his salary and other necessary conditions in accordance with Article 57 of the Labor Code.

What salary should be set for the CEO?

Many executives find it absurd that a founding CEO should be paid a salary. After all, he, as a business owner, receives dividends from the profits from the organization’s activities, which are his main income. Nevertheless, the director performs a labor function. This means that you need to conclude an employment contract with him and, on its basis, pay the employee wages. The agreement on behalf of the organization is signed by one of the founders on behalf of the other owners (an explanation on this matter is given in the letter of Rostrud dated December 19, 2007 No. 5205-6-0). In this situation, Vladimir’s partner will act on behalf of the company.

Document	Will help you
Chapter 43 of the Labor Code	Correctly conclude an employment contract with the founding CEO
Federal Law “On Limited Liability Companies” dated February 8, 1998 No. 14-FZ;	Draw up regulations on the general director and his job description. Assess the role of the general director as the sole executive body of the company and correlate it with the norms of labor legislation
Letter of Rostrud dated December 28, 2006 No. 2262-6-1; Letter of the FSS of Russia dated June 27, 2005 No. 0218/06-5674	To defend the position that there is no need to conclude an employment contract with the general director - the sole founder
Resolution of the Federal Antimonopoly Service of the North-Western District dated May 19, 2004 No. A1Z-7545/03-20; Ural District dated September 17, 2007 No. F09-2855/07-S1; West Siberian District dated December 5, 2007 No. F048301/2007(40653-A45-25)	Defend the position that an employment contract with the general director - the sole founder - must be concluded

But taxes must be deducted from the director’s salary, the amount of which depends on the amount of earnings. Therefore, Vladimir had a question: is it possible to avoid overpayments and assign the minimum salary to the founding general director? And how can you legally set a salary below the minimum wage? 1

If an employee is assigned a part-time working day, week or shift, then payment for his work is made in proportion to the time worked or the amount of work performed (Article 93 of the Labor Code of the Russian Federation), which means it may well be lower than the minimum wage. Thus, if you set the director’s working hours, say, one or two hours a day, his monthly earnings will be small. Do not forget that in this case, in the time sheet you need to put not “eights”, but the corresponding number of hours of daily work.

Does the sole founder need an employment contract?

Often, in practice, the head of a company is its sole founder. Is he obligated to have an employment contract and must he pay his own salary? There are two opposing points of view on this issue in the personnel community.

The first point of view is shared by officials, and arbitration practice has developed in support of the second. Which of these two positions to adhere to is up to you. But given the controversial nature of the issue, be prepared to prove to inspectors from the State Labor Inspectorate or tax authorities the validity of your decision.

If a limited liability company consists of one participant, he himself performs the functions of the general meeting of company participants, including appointing a general director (Article 39 of the Law “On Limited Liability Companies”)

Professional dispute
Do I need an agreement with the director - the sole founder?

Olga Netrebskaya, HR manager at LVB LLC (Samara)

Believes he is needed

The relationship between the employee and the organization is regulated by this document (Article 16 of the Labor Code of the Russian Federation). When a founder appoints himself to the position of head of an organization, he becomes an employee and begins to perform a labor function. The employer in relation to such a director is not himself as an individual, but a legal entity, that is, an organization. Therefore, the coincidence of employer and employee in one person does not occur. Yes, Chapter 43 of the Labor Code, dedicated to the peculiarities of regulating the work of the head of an organization, does not apply to directors of companies who are the only founders, participants or members of the organization. However, this does not mean that the Labor Code does not apply to such directors at all - its other norms apply to them, including the general provisions on the employment contract (Article 57 of the Labor Code of the Russian Federation).

Viktor Linkov, General Director of Melproduct LLC (Volgograd region)

Believes he is not needed

Confirmation - letter of Rostrud dated December 28, 2006 No. 2262-6-1. In the situation under consideration, there is no employer in relation to the general director, while, according to Article 56 of the Labor Code, the employment contract is concluded between the employee and the employer. Signing an agreement by the same person on behalf of the employee and on behalf of the employer is not allowed. The later published letter of the Ministry of Health and Social Development of Russia dated August 18, 2009 No. 22-2-3199 also confirms the above position. In particular, it says that the management activities of the general director, who is the sole founder, are carried out without concluding any contract, including an employment contract. In addition, the specifics of regulating the work of the head of an organization, established in Chapter 43 of the Code, do not apply to cases where the head is the only founder.

Remember the main thing

Experts who took part in the preparation of the material note:

Anna Filina, lawyer at GSL-Pravo LLC:

Conclude an employment contract with the director, who is appointed to the position by decision of the founders. In addition to the employment contract, an order for the director to take office is required. When the general director needs to go on a business trip or vacation, he will have to order to assign his duties to a deputy or another employee.

Ekaterina Yashina, head of the financial department of JSC Electronics Shopping Center on Presnya:

If you need to minimize payments, pay the CEO in proportion to the time worked. Register a director on a part-time or part-time basis. The salary cannot be lower than the minimum wage only if the employee has worked out the full working hours for the month (Article 1ZZ of the Labor Code of the Russian Federation).

Natalya Mukhina, leading legal consultant of the Legal Department of AGRO-Invet Management Company LLC:

The position that an employment contract cannot be signed by the same person for the employee and the employer is controversial. Yes, there is a rule in the Civil Code that prohibits a representative of an organization from making transactions on behalf of the organization in relation to himself (clause 3 of Article 182 of the Russian Federation). But another rule states that civil law does not apply to other relationships.

1 minimum wage is currently 4,330 rubles (Article 1 of the Federal Law of June 24, 2008 No. 91-FZ). Keep in mind that regions set their own minimum wages, which are usually higher than the federal minimum,

An individual entrepreneur, being an individual, has the right to perform certain functions of a legal entity. In particular, this is hiring. However, can an individual entrepreneur hire an outsider as director of his business? Or, being an individual entrepreneur, is it possible to appoint only yourself to this position?

General Director is a position that cannot be offered to an employee.

According to Article 413 of the Civil Code of the Russian Federation, the law cannot consider any obligations if the creditor and the debtor are the same person. Therefore, an individual entrepreneur cannot appoint himself as a director, since civil obligations in this case do not make sense. Also, an entrepreneur cannot calculate his own salary or enter into a contract with himself. The status of an individual implies that the individual entrepreneur performs his social functions directly, unlike a legal entity, where personification is simply necessary, that is, in order to express its will, the company needs a manager appointed for this.

The order for appointment as a director is signed by both parties, and if the employee requests, he is given a copy. The date in the order is considered the day of taking office.

To avoid further disagreements, accompany this appointment with two more documents:

1. Job description.
2. A standard employment contract, which specifies all the duties of the appointee, his areas of responsibility, work schedule and functions.

Don't forget to equip your employee to perform certain functions, this will make things easier for both of you. And so that there are no problems with payment at the bank (so that your director’s signature on payment documents does not cause disputes), you together draw up a card with sample signatures at the bank.

Don't forget to provide your employee with a power of attorney to perform certain functions, this will make things easier for both of you.

Here is a sample of each of the necessary documents: employment order, order to assume the position of director, job description of the commercial director.

So, you can perform the duties of a director yourself, but you do not have the right to appoint yourself as one. Or you can hire a director for an individual entrepreneur as a manager or executive director. Think for yourself whether you need a person who will share with you all the power.