Can an individual entrepreneur be the founder of an LLC? Is it necessary to be the founder general director or just a director. Ministry of Finance: the director - the only founder should not pay himself a salary

The situation when the CEO and founder are the same person is not uncommon. This is not prohibited by law: one person can establish a company. How to formalize labor relations? Is it necessary to conclude employment contract? How to pay for labor and not make mistakes with taxes? Question from a webinar participant about cash transactions: in a company, the general director and the founder are the same person. How to conclude an employment contract. Is it obligatory to accrue and pay the salary of the general director? Is it possible to take the CEO's salary as an expense? Should the salary be the minimum, or whatever the company can afford? Webinars for accountants at Kontur.School: changes in legislation, features of accounting and tax accounting, reporting, salaries and personnel, cash transactions.

Advantages of an LLC with one founder - he is also the director

Management in an LLC Can a founder be a director of an LLC Founder and general director in one person: employment contract Law enforcement practice: TD with a director in an LLC with one participant (aka director) Founder and director - one person: risks Sole founder - general director in 2 companies Management in an LLC The Civil Code of the Russian Federation directly provides for both the possibility of establishing an LLC by one founder, and the admissibility of the operation of an LLC, initially founded by several persons, later with one participant. This can happen either as a result of the departure of the remaining founders from the LLC over time, or in the event of one person acquiring 100% of the shares of the LLC (Part 2 of Article 88 of the Civil Code of the Russian Federation). If in business practice the term “founder of an LLC” is usually used, the legislator prefers to use the term “member of an LLC”.

Is it necessary to appoint a general director in an LLC?

Any audit will reclassify such payment of dividends as salary with all the ensuing tax consequences. How to take into account the cost of the founder's director's salary? Is it possible to take into account the salary of the founding director as part of wage expenses, because, as for general cases, the accrued salary is taken into account as part of expenses (Clause 1 of Article 255 of the Tax Code of the Russian Federation)? The fact is that labor relations take place, since the employee is actually allowed to work, regardless of whether the contract is concluded “on paper” or not (Part 2 of Article 16, Article 19, Part 2 of Article 67 of the Labor Code of the Russian Federation) . Therefore, it can be assumed that this point Tax Code applicable in this case, even if a written agreement with general director- was not the sole founder.

If the agreement is concluded, then wage must be specified in the contract. Therefore, it can also be taken into account in labor costs.

What is the difference between a director and a CEO

Attention

In practice, this body/position is most often referred to as “general director,” although other names are also found.

A sole executive body together with a collegial executive body (usually called “board” or “directorate”).
A management company is another legal entity that performs the functions of an executive body.

the most important issues

limited liability

A number of issues fall within the exclusive competence of the OSU, i.e. their resolution cannot be transferred to another body of the LLC by the company’s charter.

Founder and leader rolled into one

The issue of delimitation of competence is resolved as follows:

the powers of the participant are determined by the charter of the LLC;
all other issues are resolved by the General Director on a residual basis (if there is no board of directors in the management system).

For an LLC with one participant (aka director), the rules of Law No. 14-FZ on interested-party transactions and major transactions do not apply (Part 1, Clause 5, Article 45 and Part 1, Clause 9, Article 46 of the said law). In LLC with the only participant there is no conflict of interest, it is easy to administer and from a management point of view resembles an individual entrepreneur. However, legally there are significant differences between an individual entrepreneur and such an LLC.
IMPORTANT! The advantage of an LLC over an individual entrepreneur is limited liability. When creating an LLC, an individual transfers part of his property to him, and with this property the LLC is liable for its debts.

General Director of LLC: issues of registration, registration, shift

The important ruling of the RF Armed Forces dated February 28, 2014 No. 41-KG13-37 concluded that such labor relations are regulated general provisions Labor Code (remember that Chapter 43 of the Labor Code does not regulate them). This point of view is confirmed in paragraph 1 of the Supreme Arbitration Court Resolution No. 21 dated June 2, 2015). A number of court decisions concluded that labor decisions arise on the basis of the decision of a single participant, and registration of a TD is not required (Determination of the Supreme Arbitration Court of June 5, 2009 No. VAS-6362/09).

Info

The founder and director are one person: risks What should an entrepreneur do in such a situation? There is no clear answer. But we believe that the risk of adverse consequences is much higher in the absence of a TD with the director. Rostrud, which is a control body in the labor sphere and is authorized to conduct inspections and impose administrative penalties, as mentioned above, often changes its point of view on this issue.

Can the founder of an LLC be a director?

Law No. 14-FZ, the sole executive body of the company (general director, president and others) is elected by the general meeting of the company’s participants for a period determined by the company’s charter. The sole executive body of the company may also be elected from outside its participants. An agreement between the company and the person performing the functions of the sole executive body of the company is signed on behalf of the company by the person who chaired the general meeting of the company's participants, at which the person performing the functions of the sole executive body of the company was elected, or by a participant of the company authorized by the decision of the general meeting of the company's participants.

Thus, the assumption by the sole founder of a company of the functions of the executive body of the same company does not contradict either legal norms or the provisions of the company’s charter.
How to “call” the head of an enterprise There are contractual relations between the head of the enterprise and the enterprise. They are regulated by federal laws, including: the Labor Code of the Russian Federation, federal laws “On joint stock companies”, “On limited liability companies”, as well as other regulatory and legal documents and acts approved by a subject of the Federation or a territorial body of local government. The constituent documents of the organization and, in particular, its charter must state the name of its leader - an individual who exercises leadership and performs the functions of the sole executive body, as defined by Article 273 of the Labor Code of the Russian Federation.

According to it, the founders can choose any name: director, general director, chairman or president - there is no difference, it does not change the essence in any way, the rights and obligations of the director also do not depend on this. An individual elected to the position by the general meeting or who occupied it on a competitive basis is appointed as the head of the organization. Therefore, you can choose any name, but you should still take into account the specifics of the work, area of activity and production volumes of this particular organization.

If it is small, its leader can be called a director without any damage to his authority. But in the case when this is a fairly large enterprise, which has, for example, several branches and subsidiaries, their managers may be called directors, and the general will be the one who carries out general management.

Is it necessary to be a founder general director or just a director?

We note that this department in currently does not exist, and its legal successor, the Ministry of Labor, did not give an official explanation (there are only the above-mentioned consultations from Rostrud, a service subordinate to the Ministry of Labor and Social Protection).

The Ministry of Finance believes that in this situation the TD is not concluded (letters dated 02/19/2015 No. 03-11-06/2/7790, dated 10/17/2014 No. 03-11-11/52558). At the same time, accrued wages cannot be included in expenses that reduce the tax base. The first of these letters is applicable to organizations that are on the simplified taxation system (simplified taxation system), the second - for enterprises paying the Unified Tax System (Unified Tax System) (agricultural tax).
The judicial authorities are of the opinion that in such a situation, labor relations arise (resolution of the FAS ZSO dated November 9, 2010 in case No. A45-6721/2010 and also whole line precedents).

Thus, in this case, an employment contract with the general director as an employee is not concluded. The Ministry of Health and Social Development of Russia, in letter dated August 18, 2009 No. 22-2-3199, takes the same position: from the norm of Article 273 Labor Code It follows that signing an employment contract both on behalf of the organization and on one’s own behalf is impossible, since there cannot be the same signature on both sides, and the organization does not have another owner. But there are also court decisions. For example, in the FAS resolution Northwestern district dated May 19, 2004 No. A13-7545/03-20 it is stated that in accordance with Art. eleven Federal Law dated 02/08/1998 No. 14-FZ “On Limited Liability Companies” (hereinafter referred to as Law No. 14-FZ), the decision to establish a company can be made by one person. According to paragraph 1 of Art.

The simplest form of a company is the so-called “one person company”, when founder and director perform in one person. In this case, an organization, such as an LLC, is created and managed by the same an individual. At the same time, despite the simplicity of creating and managing such a company, from a legal point of view the situation is by no means simple, and requires proper registration of the relations arising here.

First of all, the question arises about the mandatory registration labor relations with the director

(the position of the head of the company may be called differently, for example, general director, president, etc.) “company of one person,” and if so, how to formalize these relationships correctly.

Founder and director rolled into one.

At one time, in a letter from the Ministry of Health and Social Development of Russia dated August 18, 2009 No. 22-2-3199, it was explained that the management activities of the head of the organization in this case are carried out without concluding any agreement (labor contractor a civil law agreement). This was justified by the fact that an agreement cannot be concluded with oneself, and in the case where the founder and director are the same person, this is exactly what happens.

At the same time, judicial practice has taken the path of recognizing the legality of concluding such employment contracts. After which the approach of officials changed. The order of the Ministry of Health and Social Development of Russia dated 06/08/2010 No. 428 provided clarifications regarding compulsory social insurance in case of temporary disability and in connection with maternity. As the Ministry of Health and Social Development explained, the head of an organization, when he is its sole founder (participant), is classified as a person working under an employment contract and is subject to compulsory social insurance.

Thus, in order to avoid disputes with regulatory authorities, it is advisable for the founder of an LLC or another company of one person, who is also its director, to draw up an employment contract with himself (it will be signed, on the one hand, by the sole founder, and, on the other hand, by the employee, that is, the head of the organization), which reflects all the conditions mandatory for such contracts, including the procedure and amount of wages. It will also be necessary to fulfill other requirements provided for by labor legislation: make an entry in work book, issue, get a personal card for the employee, etc. That is, in this case, the director has the status of an employee and the organization (employer) must fulfill all the requirements stipulated by law in relation to him.

It should also be taken into account that salary payments must be made in favor of the director, and income tax must be withheld from the amounts of these payments. In addition, in off-budget funds should be done. Failure to comply with these responsibilities may result in prosecution.

FAQ (frequently asked question – Frequently asked question: Can the head of a “one person company” work for free? Having said that, no. Since the manager is an employee from the point of view of labor legislation, he must receive a salary for the work performed. Non-payment of wages to an employee can only occur in cases provided for by law, for example, when the employee is granted leave without pay.

Taxes must be paid on the income received by the organization. Personal income tax and insurance contributions to extra-budgetary funds must also be withheld from the income received by the director of the company. At the same time, it may be beneficial for the founder and director of a “one-person company” to calculate and pay salaries to himself. The fact is that amounts paid to the manager, provided they are justified and have proper documentary evidence, can be taken into account as part of the organization’s expenses when paying income tax. At the same time, the organization must withhold personal income tax in the amount of 13% from payments to its employee, and the tax rate when paying corporate income tax is, as a general rule, 20%. However, disputes with tax authorities are possible.

So, as you can see, the situation when the director and the founder are the same person can cause some difficulties, which, however, can be overcome if everything is done correctly.

At the same time, in a company of one person you can do without paying a salary. How? See below.

The main condition for the implementation economic activity in our country is the creation of an enterprise. At this stage, the issue of choosing a form of ownership for the business becomes important for every entrepreneur. Many of them stop at opening a limited liability company.

Who can be the Founder of an LLC

According to current legislation, participants (founders) of a limited liability company may be:

adult, capable individuals - citizens of the Russian Federation;
foreign citizens (including stateless persons);
Russian and foreign legal entities.

Each set of founders has its own procedure for registering an enterprise and its own nuances:

If the participants of a limited liability company are legal entities, they are obliged to notify the tax inspectorate of this fact within a month from the date of commencement of participation.
If a foreign citizen is going to become a founder, then first he must receive everything Required documents, which allow him to stay and work in Russia. These documents include a visa and a work permit in the Russian Federation, which are issued by the migration department. All copies of identification documents must be translated into Russian and notarized.

The decision or agreement on establishment (depending on who is the participant - an individual individual or legal entities) determines the period during which the share in the company is paid. It cannot exceed one year from the date of state registration.

If this obligation is not fulfilled, the following sanctions apply:

the unpaid share passes to the enterprise - in case of incomplete payment on time;
fine (penalty), if provided for in the agreement on establishment;
The founder has the right to vote at General Meetings of Participants in proportion to the paid share;
Joint and several liability to the extent of the unpaid portion of capital.

Who cannot be the founder of an LLC

The legislation of the Russian Federation clearly establishes who cannot be among the founders of an LLC:

Military personnel;
Government officials;
Deputies of the State Duma;
Members of the Federation Council;
Civil servants;
Government bodies (except for cases provided for by law);
Local governments (default).

Cannot be the only founder and other business enterprise, if it consists of only one person.

Number of founders

A limited liability company can be established by one person. In this case, the LLC will sole founder. It can be established by any number of individuals and legal entities, the number of which should not exceed 50.

If there are more participants, the enterprise is obliged to openly Joint-Stock Company or a production cooperative. If this norm is violated, forced liquidation is carried out on the basis of Art. 61 and 88 of the Civil Code of the Russian Federation. The initiative comes either from the Federal Tax Service or from local governments.

Sole member of the LLC

The legislation provides for the right of one person to be a founder. Subsequently, this will be the only participant in the LLC. The restriction is only for legal entity, which has one participant. In this case, he is prohibited from establishing an LLC on his own. There are no restrictions regarding individuals. The sole founder can be either a capable citizen of Russia or a foreign person.

The features of establishing a sole proprietorship LLC are as follows:

Creation of a legal entity, changes, all appointments, etc. are formalized not by Protocols, but by the Decision of a single participant.
There is no Agreement on the establishment of the Company.
One founder has the right to simultaneously perform the duties of chief accountant.
An LLC with one founder can be registered at the home address of the general director. The term of office of the director is established as unlimited.

The sole participant of the Company cannot leave the enterprise. If it is necessary to replace it, this happens in one of the following ways:

Alienation of a share through a purchase and sale transaction, after which the legal entity is re-registered: changes are made to the charter, which are approved by the tax office.
Introduction of a new person who buys part of his share from the only participant, after which the latter leaves the Company.
, after which it is entered new member with an additional contribution to which 100% of the share is transferred.

The sale of a share with a single participant occurs through a purchase and sale agreement, which is certified by a notary. Then a General Director is appointed, who makes changes to the constituent documents. An application in the established form is submitted to the State Registrar, changes are made to the Unified State Register legal entities.

Two founders

If an LLC has two founders, then the Charter of the legal entity clearly defines the procedure for their interaction. The document specifies the possibility of free ownership, mechanisms, indicates the right of priority to buy out a part of the disposed share, describes the procedure for setting the price for the share, the possibility of alienating it to third parties, the terms and procedure for paying the cost.

New LLC member

A new participant can join the Society in two ways:

Contribute to the authorized capital through the procedure for increasing it. In this case, the interested person submits an application for acceptance, which indicates the size of the contribution, the timing of its payment, the size of that share authorized capital, which a new LLC member would like to have. Consent to admit a new participant by increasing the authorized capital is made unanimously by decision General meeting. At the same time, a decision is made to amend the constituent documents, which must be registered in the manner prescribed by law no later than six months.
Buy out the share of a member of the Company. The purchase and sale agreement must be notarized.

Founder's responsibility

The founder is liable for the obligations of the Company within the limits of the share in the authorized capital. There is an exception: if at the time of the start of the bankruptcy procedure the company does not have enough property to cover its debts, the founders may be subject to subsidiary liability.

Even if this clause is not specified in the company’s charter, the founders will be held liable along with the debtor. To do this, it is necessary to prove that the bankruptcy of the enterprise occurred as a result of their fault. Such actions include decisions that were inconsistent with:

principles of reasonableness and good faith;
provisions of the charter;
legal norms.

As practice shows, it is not yet possible to impute subsidiary liability to the founders of an LLC.

With an answer to the popular question: “Can a former general director become a manager of an individual entrepreneur? And how to do everything beautifully? Of course, from fresh experience court decision. You never know what has changed... But this question is in second place in the ranking of frequently asked questions.

With enviable regularity, readers ask: “Can a founder be a manager of an individual entrepreneur?” The answer lies in Resolution of the Arbitration Court of the North-Western District dated August 30, 2018 in case No. A66-11895/2017: "No no and one more time no". Especially “no” when everything is make-believe... When there is no limit to impudence, when management, which can hardly be called management, exists only on pieces of paper. And that’s not for everyone... When the founder-manager receives fabulous money, and whose value is 132 times greater than all the employees combined.

So, closer to case No. A66-11895/2017. Let's start in order. 5 months after registration as a legal entity, the company decided to transfer the powers of the sole executive body to the Managing Individual Entrepreneur. Of course, in order to improve management efficiency. To whom? The founder is the sole participant and concurrently the general director of the company. The ground was prepared in advance: a couple of months before the “change of management,” the founder-director registered an individual entrepreneur. One day the general director ceased to exist and a managing individual entrepreneur appeared.

So, what rights and responsibilities were given to the new executive body?

Manage the company (manage, represent the interests of society, make decisions, issue powers of attorney, issue orders, etc.);
Provide an annual report on the work done at the request of society participants (i.e. demand a report from yourself, or rather report to yourself);
Receive an annual remuneration of at least 6,000 rubles, but not more than 45% of the company’s gross profit. By agreement of the parties, advance payments may be made.

In total, over 2 years the manager earned 53.3 million rubles. (40% of gross profit). Well, how did you earn it? The company took into account the entire amount of remuneration as part of income tax expenses, but in fact transferred only 9.9 million rubles to the individual entrepreneur. In turn, the manager, in accordance with paragraph 1 of article 346.17 of the Tax Code of the Russian Federation did not reflect the accrued remuneration in full when calculating the tax according to the simplified tax system... Such confusion... Obviously for a reason. And the tax office found out why for a reason. And why is there an unreasonable tax benefit:

Interdependence of the company and the manager of the individual entrepreneur;
Registration of an individual entrepreneur shortly before the conclusion of a company management agreement;
Receipt to the individual entrepreneur's current account Money for services rendered only from the company;
Long delay in payment for manager’s services;
Lack of reports on the work done to manage the company;
Lack of specification in acts of services rendered: “what specific actions were carried out by the manager during the reporting period, from their content it is impossible to determine the actual volume and nature of the work done by the manager”.

Tax officials reasoned logically: “You are the owner of an LLC, and you manage this LLC, being the manager of an individual entrepreneur. First, justify why you delegated authority to yourself? Secondly, why can't you pay yourself a reward? After all, you, whatever one may say, are in charge everywhere... Thirdly, show me, what are the differences between your functions as a general director and as a manager of an individual entrepreneur?” Neither the court nor the inspectorate heard reasonable reasons and true goals...

In addition, the manager turned out to be very valuable (from the word “price”). More valuable than all the employees combined. His reward 132 times higher than the wage fund all employees of the company and 6 times the size net profit : « At the same time, the courts noted that during the disputed period, the salary of the Company’s full-time employees was set at 6,000 rubles, the applicant’s statement that the purpose of concluding the agreement was to stimulate the manager for more effective management, since the amount of his remuneration was set depending on the indicators of economic activity Society, unfounded. As the courts indicated, the remuneration of the manager, who was at the same time the only participant in the Company, was 6 times greater than the size of the Company’s net profit (RUB 8,534,000) and 132 times the wage fund of all the applicant’s employees (RUB 402,448).”

The judges agreed with the inspectorate that the conclusion of the management agreement did not have a reasonable business purpose or intention to obtain an economic effect, but was aimed only at minimizing the company's tax obligations.

Yulia Baranova

Lawyer and senior tax consultant at Turov and Partners:

I repeatedly repeat to my clients that it is impossible to conclude a management agreement for an LLC if its sole founder intends to become the manager of an individual entrepreneur. This goes against the norms of the Civil Code of the Russian Federation.

From a legal and technical point of view, this agreement for the management of the company will be signed, in fact, by the same individual. Moreover, based on the representative status of the sole founder for his company, the transaction will be considered invalid:

Clause 3, Article 182 of the Civil Code of the Russian Federation:

“A representative cannot carry out transactions on behalf of the represented person in relation to himself personally, as well as in relation to another person whose representative he is at the same time, except in cases provided for by law.”

This status of the founder is confirmed by judicial practice. The cassation court noted that, within the meaning of articles 179(as amended until 09/01/2013) and 182 Civil Code of the Russian Federation The position of a person who, by virtue of law or the constituent documents of a legal entity, acts on its behalf, and the position of a representative are in many ways similar ( Clause 10 Information letter Presidium of the Supreme Arbitration Court of the Russian Federation dated December 10, 2013 No. 162).

Transactions made by the sole executive body or other representative of a legal entity in relation to himself personally or in relation to another person whose representative (sole executive body) he is at the same time may be challenged in accordance with general rules, provided for in Article 173.1 and paragraph 3 of Article 182 of the Civil Code of the Russian Federation (Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 16, 2014 No. 28 “On some issues related to challenging major transactions and interested party transactions”).

But in in this case, that's not so bad. The manager's remuneration was unreasonably high. Plus, there was no confirmation of the fact and scope of provision of such services, because There were no reports or certificates of services provided.

Dear entrepreneurs, I would like to remind you once again that the basis of any optimization is not only tax benefits, but also the reality of providing services and their confirmation by correct document flow.

By the way, how to introduce an individual entrepreneur manager, how to work, how to report, how much to pay and how to correctly calculate remuneration + selection judicial practice+ step-by-step induction + all-all-all required documentation... All this is contained in implementation kit "Managing IP". The lawyers of the company “Turov and Partners” took into account all the nuances, even the smallest ones, which, among other things, can play a cruel joke on those who are engaged in “amateur activities.” Order and implement.

ORDER THE “MANAGER-IP” SET

Sole founders of enterprises sometimes try to manage them on an equal basis with directors. An example of this is the question asked at the forum regarding the possibility of signing business agreements by the sole founder of an LLC if there is a hired director and the charter is silent on this issue. The forum participants differed in their opinions on this matter.

Position 1. Founder of LLC cannot sign contracts, concluded by LLC, since only the director has the right to sign without a power of attorney on behalf of the legal entity. Any other persons may sign contracts only if this right is given to them by the charter or by the director’s power of attorney.

Position 2. The founder of an LLC, as opposed to its participant, can enter into and sign contracts on behalf of the company, since the possibility of concluding agreements by the founders of the LLC is provided for in Art. 8 of the Law “On Business Companies”. But agreements concluded by the founder must be subsequently approved by the LLC. At the same time, LLC participants cannot enter into such agreements, since concluding transactions is the authority of the company’s management bodies, to which LLC participants do not belong.

Yu&Z's opinion: LLC founders can indeed enter into contracts on behalf of the LLC. But only before registration of a public organizationABOUT. According to Art. 8 of the Law “On Business Companies”, transactions concluded by the founders on behalf of the company before registration are recognized as those concluded with the company, subject to their further approval by the company. Agreements concluded by the founders before the registration of the company and subsequently not approved by the company entail legal consequences only for the founders.

After registering an LLC, only its bodies have the right to conclude transactions on behalf of the company. It is through them that the legal entity, according to Art. 92 of the Civil Code, acquires rights and obligations. The head of the enterprise (director) also belongs to these bodies. And if the charter entrusts him with the obligation to sign contracts on behalf of the LLC without a power of attorney, then the founder cannot take over these powers. By signing an agreement with third parties independently, the founder assigns rights and obligations not to the legal entity, but not to himself.

To change this situation and obtain the right of the founder to sign documents on behalf of the legal entity, it is necessary either to replace the director, electing the founder as such, or to amend the charter, providing for the right to conclude contracts on behalf of the legal entity and for the founder. In the latter case, the founder can act not only as a body of a legal entity, but also as a person who, according to the constituent documents, acts on behalf of the legal entity. Moreover, such changes will need to be registered in the Unified State Register so that third parties know that on behalf of a legal entity, not only the head of the enterprise (its director), but also the founder can sign the agreement.

CONCLUSION:

The founder can sign contracts on behalf of a registered legal entity only if the relevant powers are granted to him by the charter such a legal entity.