Remuneration to the board of directors. Payments to the board of directors: what are they taxed and how are they taken into account Tax and accounting of payments to members of the board of directors

In April, remuneration was paid to the Board of Directors. Since the Board of Directors is a management body that is elected by the general meeting. Accordingly, there are no civil contracts, let alone employment contracts, with members of the Board of Directors. Thus, these payments are not subject to insurance premiums. Consequently, the organization did not charge insurance premiums. But there was a ruling of the Constitutional Court of the Russian Federation No. 1170-O dated 06/06/2016, according to which it is necessary to charge insurance premiums for remuneration to the Board of Directors. Please provide clarification on whether we need to charge insurance premiums for the corresponding payments. Thank you!

The Russian Ministry of Labor has repeatedly stated that remuneration to the Board of Directors outside the framework of civil or employment contracts is not subject to insurance contributions.

However, during inspections, PFR employees charge additional insurance premiums for payments to members of the board of directors. The inspectors have this explanation. Payment of remuneration to members of the board of directors is related to their performance of management functions. This means that the relationship between the board of directors and the organization is essentially civil law. Therefore, such amounts are subject to pension and medical contributions. This point of view is also supported by the highest judicial authorities (for example, the ruling of the Constitutional Court dated June 6, 2015 No. 116-O and 1170-O, the Supreme Court of the Russian Federation dated October 29, 2015 No. 303-KG15-13555, the Supreme Arbitration Court of the Russian Federation dated December 5, 2013 No. VAS- 17574/13).

Thus, if you are guaranteed to avoid claims from inspectors, it is safer to immediately charge contributions for pension and health insurance. In addition, this way the organization will be able to avoid penalties and fines.

Rationale
(Information that will help you make the right decision is highlighted in color)

How to pay and account for remuneration to members of the board of directors

Situation: Is it necessary to charge insurance premiums for remuneration to members of the board of directors?

No no need.

The fact is that the basis of the relationship between the organization and the members of the board of directors is not labor or civil law relations, but the provisions of the charter. Accordingly, the amount of payments to members of the board of directors is determined not by employment (civil law) contracts, but by the general meeting of shareholders in joint stock companies and the general meeting of participants in limited liability companies (clause 2 of article 64 of the Law of December 26, 1995 No. 208- Federal Law, paragraph 6, paragraph 2, article 32 of the Law of February 8, 1998 No. 14-FZ).

The object of taxation of contributions for compulsory pension (social, medical) insurance are payments and other remunerations accrued within the framework of:

· labor relations;

· civil contracts for the performance of work and provision of services;

Contributions for compulsory insurance against accidents and occupational diseases are subject to payments and remunerations that are accrued within the framework of labor relations and civil contracts (only if these contracts oblige the organization to pay contributions). Such rules are established by paragraph 1 of Article 20.1 of the Law of July 24, 1998 No. 125-FZ.

Thus, remunerations to members of the board of directors are not recognized as subject to insurance premiums, since they are paid outside the framework of labor or civil law relations. And if so, regardless of the taxation system that the organization uses, do not accrue the following on the amount of remuneration to members of the board of directors:

· contributions for compulsory pension (social, medical) insurance (Part 1 of Article 7 of the Law of July 24, 2009 No. 212-FZ);

· contributions for insurance against accidents and occupational diseases (clause 1 of article 20.1 of the Law of July 24, 1998 No. 125-FZ).

Similar conclusions can be found in letters from the Ministry of Labor of Russia dated August 22, 2014 No. 17-3/B-400 and the FSS of Russia dated April 14, 2015 No. 02-09-11/06-5250.

The chief accountant advises: it is safer to charge contributions for payments in favor of members of the board of directors. The fact is that during inspections, PFR employees charge additional insurance premiums for payments to members of the board of directors.

The inspectors have this explanation. Payment of remuneration to members of the board of directors is related to their performance of management functions. This means that the relationship between the board of directors and the organization is essentially civil law. Therefore, such amounts are subject to pension and medical contributions. This follows from Part 1 of Article 7 of the Law of July 24, 2009 No. 212-FZ.

Moreover, the judges agree with the controllers. This is evidenced by: rulings of the Constitutional Court of the Russian Federation dated June 6, 2016 No. 1169-O and No. 1170-O, the Supreme Court of the Russian Federation dated October 29, 2015 No. 303-KG15-13555 and the Supreme Arbitration Court of the Russian Federation dated December 5, 2013 No. VAS -17574/13, resolution of the Arbitration Court of the Far Eastern District dated August 13, 2015 No. F03-3163/2015, FAS of the Ural District dated November 5, 2013 No. F09-9127/13, etc.

Thus, if you are guaranteed to avoid claims from inspectors, it is safer to immediately charge contributions. In addition, this way the organization will be able to avoid penalties and fines.

But social insurance contributions do not need to be calculated due to paragraph 2 of part 3 of article 9 of the Law of July 24, 2009 No. 212-FZ. Yes, and contributions “for injuries” are paid only if this is provided for in a civil contract.

LETTER OF THE MINISTRY OF LABOR OF THE RF DATED 02.26.2016 No. 17-4/OOG-318

The Department of Social Insurance Development has considered the appeal on the issue of charging insurance contributions to state extra-budgetary funds for remuneration to members of the board of directors and the audit commission of the joint-stock company and reports the following.

Part 1 of Article 7 and Part 1 of Article 8 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 referred to as Federal Law N 212-FZ ) it is stipulated that the object and basis for calculating insurance premiums for organizations that make payments and other remunerations to individuals are payments and other remunerations accrued, in particular, within the framework of labor relations and civil contracts, the subject of which is the performance of work, provision of services.

In accordance with Article 64 of the Federal Law of December 26, 1995 N 208-FZ “On Joint-Stock Companies” (hereinafter referred to as Federal Law N 208-FZ), the board of directors (supervisory board) of the company is the management body responsible for the general management of the company’s activities.

According to Article 85 of Federal Law N 208-FZ, the audit commission of the company is the body for monitoring the financial and economic activities of the company.

Based on these articles, by decision of the general meeting of shareholders, members of the board of directors, members of the audit commission of the company, during the period of performance of their duties, may be paid remuneration and (or) compensated for expenses associated with the performance of their functions as members of the board of directors of the company, members of the audit commission. The amounts of such remuneration and compensation are established by a decision of the general meeting of shareholders.

As a result, the joint stock company cannot guarantee mandatory payment of remuneration to members of the board of directors and the audit commission.

In this regard, it should be noted that in accordance with paragraph 1 of Article 420 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code), a civil contract is an agreement of two or more persons to establish, change or terminate civil rights and obligations.

Moreover, according to paragraph 3 of Article 154 of the Civil Code, in order to conclude an agreement, it is necessary to express the agreed will of two parties (bilateral transaction) or three or more parties (multilateral transaction).

In addition, in accordance with paragraph 1 of Article 779 of the Civil Code, under a contract for the provision of paid services, the contractor undertakes, on the instructions of the customer, to provide services (perform certain actions or carry out certain activities), and the customer undertakes to pay for these services.

However, the provisions of Federal Law No. 208-FZ do not provide for the obligation to pay remuneration to members of the board of directors and members of the audit commission of a joint-stock company for the performance of managerial and, accordingly, control functions.

In addition, remuneration to members of the board of directors and members of the audit commission is paid by decision of the general meeting of shareholders of the company, which appoints them. Therefore, such remuneration is not payment for work or services.

In the case under consideration, the criterion for the provision of services under a civil contract representing a bilateral or multilateral transaction in accordance with the provisions of the Civil Code is not met.

In relation to members of the board of directors of a joint-stock company and members of the audit commission, only a unilateral expression of the will of the general meeting of shareholders occurs.

Thus, in our opinion, the relations between members of the board of directors of the company, members of the audit commission and the company itself cannot be considered as relations existing within the framework of civil contracts, the subject of which is the performance of work or the provision of services.

Article 11 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code) provides that labor legislation and other acts containing labor law norms do not apply to members of the board of directors of organizations (with the exception of persons who have entered into an employment contract with this organization).

The board of directors is a superior authority to the general director of the organization. Members of the board of directors are paid remuneration, not wages, which depends on the employee’s qualifications, working conditions and performance results.

Therefore, the legal relationship between members of the board of directors and the head of the organization cannot be classified as labor relations, which is enshrined in the provisions of Article 11 of the Labor Code.

It should also be noted that the positions of members of the audit commission, in accordance with the provisions of Federal Law N 208-FZ, are elective, and the election of persons occupying these positions is carried out by the highest management body of the company - the general meeting of shareholders in order to control the financial and economic activities of the company , which cannot be related to the work activities of auditors in the joint-stock company itself.

In connection with the above, since remuneration to members of the board of directors and members of the audit commission of a joint-stock company are made on the basis of a decision of the general meeting of shareholders of the company, and not in accordance with employment contracts or civil contracts, the subject of which is the performance of work, the provision of services, then on the basis provisions of Part 1 of Article 7 of Federal Law N 212-FZ, such remuneration is not subject to insurance contributions.

The above position on the issue of charging insurance contributions to state extra-budgetary funds for remuneration to members of the board of directors and the audit commission of a joint-stock company was sent by letter of the Ministry of Labor of Russia dated December 18, 2015 N 17-4/10/B-9648 to the Pension Fund of the Russian Federation with instructions to bring it to information from all territorial bodies of the Pension Fund.

Director of the Department
development of social insurance
L.Yu. Chikmacheva

Good afternoon, the question is the following: We are planning to introduce remuneration for members of the board of directors of LLCs. Is it possible to do this if the LLC has an executive body in the form of a General Director? How much reward can I bet? Who can be a member of the board of directors - any individuals or only LLC employees? Are insurance premiums calculated on remuneration? If contributions are accrued, how can they be taken into account (postings and income tax)?

The General Director is the sole executive body. The board of directors is the supervisory board. These are two different bodies that have the right to exist simultaneously. The amount of remuneration is adopted by the general meeting of LLC participants; it can be any, regardless of salary. The following may become a member of the board of directors of an LLC: a member of the company; another person, if he is not on the list of disqualified persons and he can hold such a post.

Remuneration for members of the board of directors

Council members can work both on a paid and unpaid basis. As for the members of the board of directors of an LLC, the provisions on remuneration are fixed in the company’s charter, and decisions on the amount of payments can be made by the general meeting of the company’s participants (clause 2 of article 32 of the Law on LLC).
As a rule, an organization that has a board of directors (supervisory board) within its structure pays remuneration to the members of this body for the performance of their functions. Additionally, members of the board of directors may also be compensated for expenses associated with the performance of their duties. The amounts of such remuneration and compensation are established by the general meeting of shareholders (participants) (see, for example, paragraph 2 of Article 64 of Law No. 208-FZ, paragraph 2 of Article 32 of Law No. 14-FZ).
As a general rule, according to clause 48.8 of Art. 270 of the Tax Code of the Russian Federation, amounts of payments in favor of members of the board of directors are not taken into account when calculating income tax.
At the same time, if employment contracts have been concluded with members of the board of directors and payments are made within the framework of these contracts, the organization can take these amounts into account as expenses on the basis of clause 1 of Art. 255 Tax Code of the Russian Federation. In the case of concluding civil contracts, the basis for reflecting such payments as expenses will be clause 21 of Art. 255 of the Tax Code of the Russian Federation (clause 41, clause 1, article 264 of the Tax Code of the Russian Federation - if a member of the board of directors has the status of an individual entrepreneur).
At the same time, it is obvious that the subject of such agreements should differ from the issues referred by law and the company’s charter to the competence of the board of directors (supervisory board). If the labor duties coincide with the duties of a member of the board of directors, provided for by Laws N 208-FZ and N 14-FZ, the costs of paying remuneration cannot be taken into account. The same conclusions follow from Letters of the Ministry of Finance of Russia dated 05/22/2009 N 03-03-07/12, dated 03/19/2009 N 03-03-06/1/166, dated 03/12/2009 N 03-03-06/1/123 .
From numerous letters from the Ministry of Finance it follows that remunerations to members of the board of directors and the audit commission of the company are subject to insurance contributions for compulsory pension insurance and compulsory medical insurance at the appropriate rates established by Art. 426 of the Tax Code of the Russian Federation, namely:
— on OPS — 22% within the established limit of the base, above it — 10%;
— for compulsory medical insurance — 5.1%.
Moreover, it does not matter whether there are labor and civil law contracts concluded with them.
The company's expenses in the form of amounts of accrued dividends are not taken into account for profit tax purposes (Clause 1, Article 270 of the Tax Code of the Russian Federation).

The amount of remuneration to a member of the board of directors, as well as insurance premiums accrued to him (as described in the section “Insurance premiums”) can be taken into account as part of expenses for ordinary activities (as management expenses), provided that the competence of the board of directors includes issues relating to ordinary activities of the company (clauses 5, 7 of the Accounting Regulations “Expenses of the Organization” PBU 10/99, approved by Order of the Ministry of Finance of Russia dated May 6, 1999 N 33n).
At the same time, if the issues of company management, which are within the competence of the board of directors, are not directly related to the normal activities of the company, then the costs of paying remuneration to members of the board of directors, as well as insurance premiums accrued to it, can be taken into account as part of other expenses (clause p. 4, 11 PBU 10/99).

In accordance with paragraph 4 of Art. 65.3 of the Civil Code of the Russian Federation, along with the sole executive body(s), a collegial management body (supervisory or other board, although the legislator does not distinguish between these concepts) can be formed in a corporation. Cases of formation of such a body are established by the charter or law.

The Law on Limited Liability Companies does not regulate the procedure for the formation and activities of the company’s board of directors (supervisory board), leaving this issue to the discretion of the company’s participants, who establish the relevant provisions in the charter and other internal documents. Members of the company's collegial executive body cannot constitute more than one-fourth of the composition of the board of directors (supervisory board) of the company. A person performing the functions of the sole executive body of a company cannot simultaneously be the chairman of the board of directors (supervisory board) of the company.
By decision of the general meeting of the company's participants, members of the board of directors (supervisory board) of the company during the period of performance of their duties may be paid remuneration and (or) compensation for expenses associated with the performance of these duties. The amounts of these remunerations and compensations are established by a decision of the general meeting of the company's participants.

The Ministry of Finance substantiates its position by reference to the definitions of the Constitutional Court of the Russian Federation dated 06.06.2016 N 1169-O and N 1170-O, which indicate: remunerations made to members of the board of directors and the audit commission in connection with the fulfillment of the duties assigned to them for management and control of activities companies are subject to insurance premiums, regardless of whether the condition for the payment of this remuneration is contained in the agreement concluded between a member of the relevant body and the company, and such payments are considered to be made within the framework of civil law contracts.
Similar explanations were given by the Ministry of Labor (Letter dated November 15, 2016 N 17-4/B-448).
In accordance with clause 48.8 of Art. 270 of the Tax Code of the Russian Federation, expenses in the form of amounts of remuneration and other payments made to members of the board of directors are not taken into account for the purpose of taxing the profits of organizations. At the same time, the amounts of insurance premiums accrued from these payments are taken into account as part of other expenses on the basis of paragraphs. 1 clause 1 art. 264 of the Tax Code of the Russian Federation (letters of the Ministry of Finance of Russia dated 02/27/2017 N 03-15-06/10836, dated 10/14/2016 N 03-03-06/1/60067).
The RF Armed Forces have repeatedly pointed out the obligation to charge insurance premiums, noting that the 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 the performance of control functions (determination dated November 25, 2015 N 309-KG15-11902 in case N A50-22819/2014, dated 02.02.2016 N 309-KG15-19048 in case N A50-4019/2015).

Risks:
The fine for non-payment of taxes and insurance premiums is 20% of the amount not paid as a result of underestimating the base or other incorrect calculation. And if the non-payment is intentional - 40% of this amount (clauses 1, 3 of Article 122 of the Tax Code of the Russian Federation, Article 26.29 of Law No. 125-FZ).
In addition to the fine, if taxes (contributions) are not paid, penalties will also be assessed.

POSSIBILITIES!
If necessary, you can develop a special internal document - Regulations on the payment of remuneration and compensation to members of the Board of Directors. This document regulates the calculation procedure, terms of payment of remuneration, as well as compensation for expenses actually incurred by members of the board of directors of the LLC (travel, accommodation, entertainment expenses).

After being elected to the board of directors, board members do not have any labor responsibilities. But for participation in the work of the council, the organization can pay them remuneration and reimburse expenses associated with their activities. The amount of such payments is determined by the general meeting of shareholders in joint stock companies and the general meeting of participants in limited liability companies (clause 2 of article 64 of the Law of December 26, 1995 No. 208-FZ, paragraph 6 of clause 2 of article 32 of the Law of 8 February 1998 No. 14-FZ).

Rewards and compensation accrued to members of the board of directors are not salaries. Labor legislation does not apply to council members, and the organization does not enter into employment contracts with them (Article 11 of the Labor Code of the Russian Federation). The only exception is if full-time employees of the organization or people working under civil contracts are elected to the board of directors. In this case, labor or civil relations between them and the organization are preserved. However, within the framework of these relationships, employees can receive remuneration only for the performance of their labor (contractual) duties. Payments and compensation for serving on the board of directors are not included in these remunerations.

Accounting

The activities of the board of directors are not directly related to the manufacture and sale of products, performance of work, provision of services, acquisition and sale of goods. Therefore, remuneration to members of the board of directors is not an expense for ordinary activities and is included in other expenses:

Debit 91-2 Credit 76

- remuneration accrued to a member of the board of directors;

Debit 91-2 Credit 73

- remuneration was accrued to a member of the board of directors - an employee of the organization.

This procedure follows from paragraphs 5, 11 of PBU 10/99 and the Instructions for the chart of accounts.

Personal income tax and insurance premiums

Withhold personal income tax from remuneration to members of the board of directors (clause 1 of article 210 of the Tax Code of the Russian Federation).

Situation: is it necessary to charge insurance premiums for remuneration to members of the board of directors?

Answer: no, it is not necessary.

The object of taxation of contributions for compulsory pension (social, medical) insurance are payments and other remunerations accrued within the framework of:

Labor relations;

Civil contracts for the performance of work and provision of services;

contributions for compulsory pension (social, medical) insurance (Part 1, Article 7 of Law No. 212-FZ of July 24, 2009);

contributions for insurance against accidents and occupational diseases (clause 1 of article 20.1 of the Law of July 24, 1998 No. 125-FZ).

Similar conclusions can be found in letters from the Ministry of Labor of Russia dated August 22, 2014 No. 17-3/B-400 and the FSS of Russia dated April 14, 2015 No. 02-09-11/06-5250. This approach is also confirmed by arbitration practice (see, for example, the decision of the Sixth Arbitration Court of Appeal dated April 6, 2012 No. 06AP-971/2012).

However, there are examples of court decisions with opposite conclusions. Namely, that for payments to members of the board of directors it is necessary to accrue contributions for compulsory pension (social, medical) insurance (see, for example, the determination of the Supreme Arbitration Court of the Russian Federation dated December 5, 2013 No. VAS-17574/13, the resolution of the Federal Antimonopoly Service of the Ural District dated November 5, 2013 No. F09-9127/13, dated August 19, 2013 No. F09-7396/13, Seventeenth Arbitration Court of Appeal dated July 11, 2013 No. 17AP-6557/2013-AK). This position is based on the fact that the payment of remuneration to members of the board of directors is related to the performance of their managerial functions. This means that the relationship between the board of directors and the organization is essentially civil law. Consequently, for payments to members of the board of directors, the organization must accrue contributions for compulsory pension (social, medical) insurance (Part 1, Article 7 of Law No. 212-FZ of July 24, 2009).

Thus, inspectors from local funds can oblige the organization to accrue contributions to compulsory pension (social, medical) insurance for payments to members of the board of directors. And then you will have to defend your right not to charge contributions in arbitration court. Considering the official position, which is reflected in the letters of the Ministry of Labor and the Federal Social Insurance Fund of Russia on this issue, the organization has a chance to win the case.

The calculation and payment of other taxes depend on the taxation system that the organization applies.

BASIC

When calculating income tax, do not take into account the amount of remuneration and other payments to members of the board of directors (clause 48.8 of Article 270 of the Tax Code of the Russian Federation, letter of the Ministry of Finance of Russia dated November 2, 2011 No. 03-03-07/49).

An example of how payment of remuneration to a member of the board of directors is reflected in accounting and tax purposes

By decision of the general meeting of shareholders, Alpha Joint Stock Company pays a monthly remuneration of 12,000 rubles to the chairman of the board of directors.

Every month, Alpha’s accountant makes the following entries in accounting:

Debit 91-2 Credit 76
- 12,000 rub. - remuneration was accrued to the chairman of the board of directors;

Debit 76 Credit 68 subaccount “Personal Income Tax Payments”
- 1560 rub. (RUB 12,000 × 13%) - personal income tax withheld (deductions are not provided);

Debit 76 Credit 51
- 10,440 rub. (12,000 rubles - 1,560 rubles) - remuneration to the chairman of the board of directors was transferred to a bank card.

When calculating income tax, Alpha's accountant did not include remuneration paid to a member of the board of directors as expenses.

In addition, for this amount he did not accrue contributions for compulsory pension (social, medical) insurance and insurance against accidents and occupational diseases.

Situation: how to reflect in accounting and taxation payments for mobile communications to members of the board of directors?

In accounting, reflect the costs of paying for mobile communications as part of other expenses. Such costs cannot be taken into account when calculating income tax. Withhold personal income tax from the cost of paid mobile communications. Do not charge insurance premiums for the amount of paid mobile communications.

Accounting

In accounting, the costs of paying for mobile communications to members of the board of directors are other expenses (clause 11 of PBU 10/99). Take into account the costs on the date when you receive an invoice from the telecom operator (clause 18 of PBU 10/99). Reflect this operation with wiring:

Debit 91-2 Credit 76

- expenses for mobile communications to members of the board of directors are reflected.

Income tax

Such expenses cannot be taken into account when calculating income tax. The fact is that payments in favor of members of the board of directors are expenses that do not reduce the tax base (clause 48.8 of article 270 of the Tax Code of the Russian Federation).

Personal income tax

Payment for mobile communications to members of the board of directors is income in kind (clause 1 of article 210 of the Tax Code of the Russian Federation). Therefore, personal income tax must be withheld from this amount. Withhold tax from any compensation paid to a board member. In this case, the withheld tax amount cannot exceed 50 percent of the remuneration amount. This is stated in paragraph 4 of Article 226 of the Tax Code of the Russian Federation.

Let’s say it’s impossible to withhold personal income tax. In particular, this is possible if a member of the board of directors does not receive monetary payments from the organization at all, but only receives income in kind or in the form of material benefits. About such an event notify the tax office before February 1 of the following year .

Insurance premiums

As for insurance premiums, in this case there is no need to charge them. The fact is that payments to members of the board of directors are not remuneration under employment or civil law contracts. Therefore, the object of taxation by insurance premiums does not arise. This follows from Part 1 of Article 7 of the Law of July 24, 2009 No. 212-FZ and paragraph 1 of Article 20.1 of the Law of July 24, 1998 No. 125-FZ.

simplified tax system

The tax base of organizations on a simplified basis does not reduce the amount of remuneration and other payments to members of the board of directors (clause 1 of Article 346.18, clause 2 of Article 346.16, clause 1 of Article 252, clause 48.8 of Article 270 of the Tax Code of the Russian Federation).

UTII

The object of UTII taxation is imputed income (clause 1 of Article 346.29 of the Tax Code of the Russian Federation). Therefore, the amount of remuneration and other payments to members of the board of directors will not affect the calculation of the tax base.

OSNO and UTII

Organizations that combine a general tax system and UTII must keep separate records of income and expenses received from different types of activities (clause 9 of Article 274 of the Tax Code of the Russian Federation).

The amounts of remuneration and other payments to members of the board of directors are not taken into account when calculating income tax (clause 48.8 of article 270 of the Tax Code of the Russian Federation). The object of UTII taxation is imputed income (clause 1 of Article 346.29 of the Tax Code of the Russian Federation). The organization's expenses also do not affect the calculation of this tax. Thus, for tax purposes, there is no need to distribute expenses related to the payment of remuneration to members of the board of directors among various types of activities.

ON THE. Matsepuro, lawyer

In LLCs and JSCs, in addition to the executive body, a board of directors or a supervisory board (hereinafter referred to as the Board of Directors) can be created (and in a JSC with 50 or more shareholders, it must) be created. clause 2 art. 103 Civil Code of the Russian Federation; clause 1 art. 64 of the Law of December 26, 1995 No. 208-FZ (hereinafter referred to as Law No. 208-FZ); clause 2 art. 32 of Law No. 14-FZ dated 08.02.98 (hereinafter referred to as Law No. 14-FZ). Let's remember how much it costs companies to maintain board members in terms of paying taxes and fees.

It is possible that soon the creation of a board of directors will be mandatory for all public joint-stock companies, regardless of the number of shareholders. That is, for those joint-stock companies whose shares and securities convertible into shares are publicly placed or traded. Such amendments are being adopted in the Duma (bill No. 47538-6), and they could come into effect as early as next year.

Status of members of the Board of Directors

In a JSC, members of the Board of Directors are elected by the general meeting of shareholders, and in an LLC, elections take place in the manner prescribed by the charter clause 1 art. 47, paragraph 1, art. 66 of Law No. 208-FZ; clause 2 art. 32 of Law No. 14-FZ. Relations with members of the board of directors are regulated by civil law, the company's charter and decisions of shareholders (participants). The norms of the Labor Code do not apply to members of the Board of Directors Articles 11, 17 of the Labor Code of the Russian Federation. Therefore, an employment contract with them to perform such functions is not concluded and they do not have the right to the labor guarantees and compensations due to employees (vacation, sick pay, etc.).

And this is logical. After all, concluding an employment contract with members of the board of directors would mean their subordination to the manager. In reality, on the contrary, the manager must be accountable to the BoD clause 1 art. 64, paragraph 1, art. 69 of Law No. 208-FZ; clause 4 art. 32 of Law No. 14-FZ.

At the same time, members of the board of directors are not prohibited from simultaneously working in the company, for example, as chief accountant, deputy director, or head of a branch. And this is already an employment relationship. The restriction on combining functions is established only for the chairman of the board of directors - he cannot simultaneously hold the position of director (general director) clause 2 art. 66 of Law No. 208-FZ; clause 2 art. 32 of Law No. 14-FZ.

“Salary taxes” on payments to members of the Board of Directors

For their work on the Board of Directors, its members may receive remuneration, as well as compensation for expenses in connection with the exercise of their powers. Such remunerations and compensations are paid to them based on the decision of the general meeting clause 2 art. 64 of Law No. 208-FZ; clause 2 art. 32 of Law No. 14-FZ.

Rewards for working in the Board of Directors

The amounts of remuneration of members of the board of directors are subject to personal income tax. Therefore, when paying them, you must withhold tax and transfer it to the budget. subp. 6 clause 1 art. 208, paragraphs. 1, 6 tbsp. 226 Tax Code of the Russian Federation. And at the end of the year - submit a certificate for each member of the Board of Directors to your inspectorate in form 2-NDFL (income code - 2001) clause 2 art. 230 Tax Code of the Russian Federation; Appendix No. 3 to the Order of the Federal Tax Service dated November 17, 2010 No. ММВ-7-3/611@.

But members of the board of directors do not need to pay insurance premiums, including “for injuries”, on the amounts of remuneration. After all, there are no labor relations and the basis for payment of remuneration is the decision of the general meeting of shareholders (participants) (hereinafter referred to as Law No. 212-FZ);. Regulatory authorities think the same clause 6 Letter of the Ministry of Health and Social Development dated 05.08.2010 No. 2519-19.

Keep in mind that contributions from remuneration are not paid even if an employment or civil contract is concluded with a member of the board of directors to fill this position. After all, the decision on the payment of remuneration and its amount was initially made by the general meeting.

Compensation of expenses

Expenses reimbursed to members of the Board of Directors in connection with participation in the work of the Board of Directors (for example, travel to the meeting place and back, accommodation) are not taxed:

nor personal income tax, because when expenses are compensated, members of the board of directors do not receive any economic benefit, which means they do not have any income Art. 41, paragraph 3 of Art. 217 Tax Code of the Russian Federation;
nor insurance premiums, including “injury” premiums, since due to the lack of labor relations the object of taxation of contributions does not arise Part 1 Art. 7 of Law No. 212-FZ of July 24, 2009 (hereinafter referred to as Law No. 212-FZ); clause 1 art. 20.1 of the Law of July 24, 1998 No. 125-FZ.

But it is important that the expenses reimbursed to the members of the board of directors are named in the decision of the general meeting and supported by documents.

Tax and accounting of payments to board members

Whether it be remuneration to members of the Board of Directors or compensation for their expenses in connection with work in the Board of Directors, these payments are not taken into account as part of tax expenses either by the general regime, or by simplifiers and clause 48.8 art. 270, Art. 346.16 Tax Code of the Russian Federation. Even if labor contracts have been concluded with members of the Board of Directors Letters of the Ministry of Finance dated May 22, 2009 No. 03-03-07/12, dated March 19, 2009 No. 03-03-06/1/166 or civil contracts for the performance of such functions.

WE TELL THE MANAGER

All payments to members of the board of directors, associated with their participation on the board are made at the expense of the company’s net profit.

Naturally, this does not apply to remunerations and compensation paid to them for the performance of duties other than those of members of the Board of Directors Letters of the Ministry of Finance dated 03/05/2010 No. 03-03-06/1/116, dated 03/12/2009 No. 03-03-06/1/123. You recognize such expenses as tax expenses in general. clause 1 art. 252 Tax Code of the Russian Federation. For example, you can take into account the costs of business trips of members of the board of directors on the basis of agreements concluded with them for the provision of services. clause 21 art. 255, sub. 49 clause 1 art. 264 Tax Code of the Russian Federation.

Costs for organizing the work of the Board of Directors (in particular, for renting premises for holding a meeting, office supplies, secretarial services, communications and mail, etc.) can be taken into account for tax purposes clause 1 art. 252, sub. 18 clause 1 art. 264 Tax Code of the Russian Federation; Resolution 20 AAS dated March 25, 2012 No. A68-4766/2011.

Due to the different recognition of costs depending on whether they are related to the activities of the board of directors or not, it is advisable to keep separate accounts for them. That is, for tax accounting purposes, divide all amounts paid to the members of the board of directors into payments related to:

with the exercise by an individual of the powers of a member of the Board of Directors (participation in meetings of the Board of Directors to resolve issues within the competence of the Board of Directors by the company’s charter);
with the same individual performing other functions (job duties and obligations under civil contracts).

In accounting, remunerations and compensations paid to members of the board of directors in connection with activities in the board of directors can be reflected as part of other expenses in account 91-2

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

Novinsky D.Yu

The board of directors as a company management body is not a permanent executive body. IN joint stock companies(both open and closed types) he carries out 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 referred to as 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 for the development of the joint-stock company;
conclusion and termination of contracts with a management company, specialized depository, appraiser, 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;
increasing the authorized capital of the company by placing an additional issue of shares and their category, if this issue falls 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 issue-grade securities;
formation of a permanent executive body and early termination of its powers, if this issue falls within 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 company’s internal documents, which are within its competence by the Charter;
creation of branches and representative offices of the company;
approval of major transactions within its competence;
approval of the registrar of the company and the terms of the agreement with him, as well as termination of the agreement with the registrar;
making decisions on participation and/or termination of the company’s participation in other organizations;
other issues referred by the Charter to the competence of the Board of Directors.

Please note that this list is general and “open”.

IN 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 Law No. 14-FZ dated 02/08/1998 “On Limited Liability Companies” (hereinafter referred to as 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 powers of executive bodies of LLC;
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 a general meeting of participants;
resolving other issues provided for by law.

The practice of creating and operating limited liability companies in modern Russia is such that they are created by no more than 5 individuals, in most cases related to each other, which makes the creation of a 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 consistent 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 Board 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/participants 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 general functions related to promoting the interests of society and its positioning in the market, as well as representative functions. In addition, members of the Boards of Directors of companies are top managers of large shareholders who own blocking or controlling stakes, that is, employees of other organizations. And this only complicates the problem.

Two cost accounting positions - two consequences of their use

There are two positions on the issue 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 remaining 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 clear: for several years now, the main financial department has been fighting to increase the revenue side of the budget by any means and considers increasing taxpayer expenses an evil aimed at reducing government revenues. But, despite the understandable inflexibility of the Ministry of Finance on this issue, its position deserves the most detailed consideration, since it will be communicated to the tax authorities as a methodological one and will form the basis for the opinion of tax inspectors when conducting audits.

Firstly, payments of remuneration to members of the Board of Directors are not mandatory and will be made only from net profit (letter of the Ministry of Finance of the Russian Federation dated April 16, 2007 No. 03-04-06-02/72; dated 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 associated with the payment of remuneration provided, other than those specified, in collective (employment) agreements.

Secondly, the activities of the Board of Directors cannot be qualified as activities related to the direct management of the organization or its individual structural divisions (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 position of corporate law, but from the position of applying subparagraph 18 of paragraph 1 of Article 264 of the Tax Code, that is, from the point of view of taxation. It is characteristic that neither in this letter nor in any other this position is supported by references to corporate legislation.

In addition, 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 staff of the 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).

Third, in order to make remuneration payments to members of the Board of Directors, employment or civil law contracts must be concluded with them (letter of the Ministry of Finance of the Russian Federation dated December 8, 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, paragraph 1, Article 264 of the Tax Code of the Russian Federation).

Fourthly, other payments (for example, travel allowances) 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 dated November 13, 2006 No. 03-03-04/1 /755).

To summarize all of the above, we can say that employees of the Ministry of Finance propose that organizations act in the following way: either pay remuneration from net profit (if there is any and the charter provides for this), or enter into labor and civil law contracts with members of the Board of Directors.

The conclusion of employment and civil law contracts requires special consideration. This proposal from the Ministry of Finance contains opportunities for tax optimization. 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 corresponds to Article 85 of the Labor Code; The duties performed must also be indicated. 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, like with any other ordinary employee, then the member of the Board of Directors will be subject to the same “social package” rules as 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 employment contracts with persons who have permanent work in another organization, and in serious positions. How will the work be combined? What will the salary be? When making proposals on the form of payment, the Ministry of Finance omits all such questions and invites taxpayers to figure it out for 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 (board, general director), will be a higher management body and, accordingly , higher officials. And the Ministry of Finance does not comment on this problem in any way. 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 unified social tax and insurance contributions for compulsory 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 unified social tax in accordance with paragraph 1 of Article 236 of the Tax Code. Also, these payments will be subject to taxation of insurance contributions for compulsory pension insurance, in accordance with paragraph 2 of Article 10 of Law No. 167-FZ of December 15, 2001 “On Compulsory Pension Insurance” (hereinafter referred to as 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 pension insurance contributions will not be charged from them (clause 1 of Article 236 of the Tax Code of the Russian Federation). The Ministry of Finance of the Russian Federation adheres to the same position in letter dated October 9, 2006 No. 03-05-02-04/155.

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

Position of YOU

The Supreme Arbitration Court of the Russian Federation takes the opposite position. 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 referred to as Information Letter No. 106) states that “payments made on the basis of paragraph 2 of Article 64 of the Federal Law “On Joint-Stock Companies” in favor of members of the board of directors are subject to 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 performance of their duties in managing 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 key in explaining the position of the Supreme Arbitration Court and it is on it that the 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 (resolutions of the Federal Antimonopoly Service of Ukraine dated May 15, 2006 No. Ф09-3694/06-С7; FAS ZSO dated January 29, 2007 No. Ф04-8917/ 2006(30055-A75-15)).

Judicial and arbitration practice

The resolution of the appeal court 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 “expenses for managing the organization”, which is used by the tax authorities, although this term is specified in subparagraph 18 of paragraph 1 of Article 264. Consequently, there is uncertainty as to whether payments to members of the Board of Directors should be considered expenses for managing the organization or not . The Arbitration Court of the Sverdlovsk Region considered that the Board of Directors is the management body of the company, and its creation in a joint-stock company is mandatory, then this irremovable contradiction of 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 remuneration of members of the Board of Directors, attributable to expenses that reduce the tax base for income tax, is subject to unified social tax. The tax inspectorate tried to challenge this decision, but it was left unchanged by resolution of the Federal Antimonopoly Service UO dated May 15, 2006 No. F09-3694/06-S7.

Even before the release of Information Letter No. 106, a number of federal arbitration courts took a similar position (see, for example, Resolution of the Federal Antimonopoly Service of the Eastern Military District dated May 24, 2004 No. A82-8302/2003-14).

But the described arbitration practice is not based on explaining the “bottlenecks” in the legislation, but on interpreting ambiguities and contradictions in tax legislation in favor of the taxpayer. If the position of the Supreme Arbitration Court changes or changes and additions are made to tax legislation, the situation may change. In addition, the position of the arbitration courts is applicable only to joint-stock companies in which the creation of a 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 an advantageous position only in a limited number of cases.

For questions payment of unified social tax and insurance contributions for compulsory pension insurance The Supreme Arbitration Court of the Russian Federation takes an unambiguous position: all payments and remuneration, 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 subject to 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

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

On the one hand, the tax authorities recognize expenses for the payment of remuneration to members of the Board of Directors as expenses for managing the company in accordance with subparagraph 18, paragraph 1 of Article 264 of the Tax Code, even without concluding employment and / or civil contracts with members of the Board of Directors. To document the validity of expenses, the company will need to present orders, statements and other documents that record the facts of accrual and payment of remunerations (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 profit tax purposes, expenses aimed at paying any remuneration other than remuneration stipulated by employment contracts are not taken into account as expenses (Clause 21, Article 270 of the Tax Code of the Russian Federation). And the basis for including payments as part of labor costs for non-staff employees will be the conclusion of civil contracts with them (letter of the Federal Tax Service for Moscow dated August 28, 2006 No. 21-11/75530@).

If we summarize all the above opinions, the following situation arises. According to the position of the Ministry of Finance, payment of remuneration to members of the Board of Directors of companies won't turn on included in labor costs that reduce the tax base for income tax. Such payments must be made from the net profit remaining at the disposal of the company after paying all taxes and other similar payments. At the same time, the Ministry of Finance indicates that payments to members of the Board of Directors are not subject to unified social tax.

According to the position of the Supreme Arbitration Court and district federal arbitration courts, expenses for payment to members of the Board of Directors can be attributed to but on indirect grounds, to payments related to expenses that reduce the tax base for income tax. The basis for this will be the need to accrue unified social tax 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 two above. 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.

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

Attributing payments to expenses that reduce the tax base for income tax

In order to include payments of cash 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 aimed at generating income or 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 payments to members of the Board of Directors to be attributed to expenses that reduce the tax base for income tax, tax inspectors will be involved in considering specific situations. And they will begin to consider the situation based on their professional view of the situation. Therefore, it is necessary to especially carefully predict the situation and minimize the risks of claims from the tax authorities for illegally understating the tax base for income tax.

Economic justification of expenses is the most difficult problem in the situation under consideration. 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 and not labor nature.

But it is still not clear how and with whom the members of the company’s Board of Directors will enter into employment agreements? Employees enter into employment contracts with the organization represented by its general director, director, etc. The General Director and/or the management board of the company occupy a subordinate position in relation to the Board of Directors and cannot in any way act as employers. In most cases, members of the boards of directors of companies are managers or top managers of the founding 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 legal and tax risks.

To solve the problem of giving legal status to payments to members of the Board of Directors, it is necessary that the tasks within their competence be enshrined in the company’s Charter. The peculiarity of modern Russian corporate legislation is such that the courts place emphasis specifically on the company’s charter, based on the fact that corporate legislation is of a general nature, and the charter is applicable specifically to a given company. According to Article 65 of Law No. 208-FZ, the Board of Directors may be entrusted with resolving “other issues within the competence of the Board of Directors by the Charter.” 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 provisions 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 members of the Board of Directors to take on official status, it is necessary that these functions be spelled out in the company's charter 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 must reflect the issue of payment 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, agreed upon with the General Director / Chairman of the Management Board, and payments relate to current expenses that reduce the tax base for income tax. It is also possible to make payments based on a decision of the general meeting of shareholders. This option will be the least risky in terms of claims from tax inspectors, but also the most difficult procedurally: in fact, all general meetings of shareholders are held once a year, and convening extraordinary meetings in order to legitimize the fact of payments seems very problematic.

In a large construction company, internal regulations established an investment and financial committee, whose competence included issues of participation in capital, financial investments, and issuing 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. For participation in weekly meetings of the investment and financial committee, he was paid 2,000,000 rubles in 2002–2005. During an audit in 2006, the tax inspectorate recognized the payments as illegal and assessed penalties to the company 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 expenses to be unlawful) and for failure to accrue unified social tax and insurance contributions 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 company's Charter, and it was on this basis that the evidence base of the 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 correspond to the statutory documents.

In cases where members of the Board of Directors are full-time employees of this organization, it is necessary to differentiate 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 differentiated between payments to them as full-time employees and payments to them as members of the Board of Directors (letter of the Ministry of Finance of the Russian Federation dated October 9, 2006 No. 03-05-02-04/155) . The Ministry of Finance even orders 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 officials of the company 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 the most important thing is to fix the issues of performance by members of the Board of Directors of certain functions and payment for this in the company’s charter.

The focus of expenses on generating income or managing 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 the company, its positioning in the market and development.

The only question is which functions will be related to the management of the company and its receipt of income. There is no list of such tasks and functions, and everything will depend on how convincing the arguments and evidence presented by society are. However, the position of the taxpayer organization will be more significant if it turns out that a member of the Board of Directors took part in a road show or a press conference dedicated to the topic of social problems, and not in a social or bohemian event as a representative of the sponsoring organization. In any case, the burden of proof of the reasonableness of the expenditure will be on the public.

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

Consequences 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 unified social tax and the insurance contribution for compulsory 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 unified social tax and contributions to pension insurance are charged, has certain advantages and disadvantages. Let's list them.

TO merits systems include:

Possibility to reduce the tax base for income tax by the amount of labor costs.
An 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:

Lack of an unambiguous and defined regulatory framework on the issue of attributing 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 normative basis, since the Supreme Arbitration Court is not an executive body that has the right to give explanations on methodological issues of taxation.
There is a high probability of risks of claims and fines being imposed by tax authorities, which in their actions will be guided by the methodological position of the Ministry of Finance.
There is a possibility that the tax authorities will take a subjective approach to this problem (and not in favor of the taxpayer), since it is likely that a precedent will be created in terms of justifying an increase in income tax expenses, which can be taken advantage of by other taxpayers.
Despite the position of the Presidium of the Supreme Arbitration Court of the Russian Federation, there are very high risks of losing a lawsuit at the request of the tax authority, 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 unified social tax and mandatory contributions to pension insurance.
Additional immobilization of funds for additional payment of income tax and 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 falls within the competence of the general meeting of shareholders by the Charter of the joint stock company. This payment system 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 contributions to compulsory pension insurance. Also, the organization will not have to justify the need for payments and select the necessary ones that confirm the fact that members of the Board of Directors perform the functions within their competence. It will be enough to establish in the charter the rule on the payment of remuneration to members of the Board of Directors based on the results of the year based on the decision of the General Meeting of Shareholders.

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 of Article 270 of the Tax Code of the Russian Federation). In addition, these payments will not be subject to UST and insurance premiums for compulsory pension insurance will not be charged 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 remuneration payments at a mandatory rate of 13 percent.

This position is supported by 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, unified social tax and pension insurance contributions are not accrued.

However, an organization 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 non-payment of unified social tax and insurance contributions to the Pension Fund of the Russian Federation may be interpreted by the tax authorities as a violation of tax legislation? And can a “permission” letter from the Ministry of Finance save you from claims from the tax inspectorate? This letter, although it is a response to a request from a specific 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 is exempt from a fine only in cases where they are intended for an indefinite number of persons or for a specific user and are based on reliable information. In this case, all letters from the Ministry of Finance are placed in legal reference systems, that is, an unlimited number 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, tax authorities are obliged to follow the opinion of the Ministry of Finance and implement it in accordance with the requirements 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 merits systems include:

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

TO shortcomings systems include:

The need to bring the charter documents into compliance with the proposed payment system: mandatory inclusion in 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 the 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