Can the founder sign enterprise agreements? Ministry of Finance: the director - the only founder should not pay himself a salary. Can the founder sign documents for the CEO?

The main condition for carrying out 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 society with limited liability.

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 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 established only for a legal entity that 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 serve as chief accountant.
• An LLC with one founder can be registered at home address 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 of 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 adopted unanimously by a decision of the 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 Company participant. 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.

“Can an LLC operate without a CEO?” is a question that often comes up on the Internet, in numerous business forums and communities. It is not always clear what such activities entail, whether it is possible to work without a manager, and what the legislation says in this regard.

The operation of an LLC without a director can complicate the work of the company, because this person, according to the law, has the right to act on behalf of the organization without issuing a power of attorney. Otherwise, submitting reports to the Federal Tax Service, drawing up a new agreement with clients or partners, hiring an employee or dismissing them - all this causes problems.

The theoretical mentioned manipulations can also be carried out by LLC employees, but only if they have a power of attorney issued personally by the director of the company. The document clearly states what actions a person has the right to carry out, and for what period the document will be valid.

It is worth noting that the person who was appointed general director for the first time is reflected in the Unified State Register of Legal Entities until he is elected new manager. This is due to the fact that the state register must contain information about the director of the LLC.

The above means that it is advisable for the company to choose a new leader as quickly as possible. If the founders cannot decide on a candidate for a long time, an acting person may be appointed for this period. At the same time, there is no need to notify the Federal Tax Service about this or make adjustments to the Unified State Register of Legal Entities. At least, there is no such position in Russian legislation.

Features of the manager's design

To understand whether an LLC can exist without a director, it is worth understanding the principles for appointing an official. Thus, the head of a company has a dual status. On the one hand, he is an employee of the LLC, and on the other, he is its executive body, which solely fulfills management responsibilities. From the position of director, he makes decisions regarding management and business issues. As an employee, he must act within the limits of the agreement and comply with the company's rules.

The appointment process follows the usual algorithm. The LLC makes a decision to appoint a new director to the position. It can be adopted by the board of directors or the general meeting of founders. In the latter case, a protocol is drawn up in which the decision made by the participants is recorded.

If the organization has only one owner, the CEO must be appointed after the decision of one shareholder. Before concluding an agreement with a new manager, it is recommended to check how correctly the appointment procedure is organized. It is important that the decision is made taking into account the recommendations of the law and is correctly formalized.

To make sure that the decision is correct, you need to refer to the charter of the LLC and check which body has the right to form an executive body in the form of a director. In addition, it is worth checking that the procedure for convening the meeting was strictly followed and that the decision was made correctly (based on the fact of quorum). Here it is worth finding out who should make the decision on the appointment of a director and sign the document.

If a person who is not one of the company’s employees is applying for a position, it is necessary to check the applicant to determine whether his name is in the register of disqualified participants. To solve this problem, a request is prepared in paper or electronic form, after which it is sent to the Federal Tax Service. If the request is prepared in in electronic format, it can be transmitted through the official resource of the tax service of the Russian Federation or the portal of municipal services.

The paper version can be submitted to any Federal Tax Service in several ways - with the help of a company representative or by mail. The principles for processing requests are spelled out in detail in the order of the Federal Tax Service dated March 6, 2012. For the transfer of the data of interest, it is necessary to make a payment in the amount of one minimum wage. If it turns out that the employee has previously been disqualified, he is prohibited from holding a management position for 6-36 months. If an employee who has been disqualified is in the position, criminal liability is possible, and the employment agreement with such an employee must be terminated.

Features of the employment contract

Another important point the question of whether it is possible to register an LLC without a director concerns the subtleties of drawing up an employment agreement. The latter has a number of features, namely:

• It can be issued for a certain period, which is prescribed in the constituent papers of the company, specified in the norms of the Federal Law or an agreement of the parties. The longest period is five years.
• May contain a condition implying the presence probationary period up to 6 months. The probation clause is often established only in a situation where the director is appointed, and not elected through a competition.
• May include a number of additional conditions for termination.

In addition, it is mandatory to include in the agreement provisions regarding responsibility for maintaining data confidentiality. An order for the appointment of a director of an LLC is issued using a single form T-1.

Features of the Federal Tax Service notification

If the head of the company is replaced, it is necessary to inform the Federal Tax Service about this within 3 days, because it is the director who has the right to act on behalf of the LLC, and information about him is contained in the Unified State Register of Legal Entities. Therefore, new data must be entered in a compressed period. The notification is issued in the form of a statement, which can be signed by new director OOO. If the Federal Tax Service is not informed of the changes, the director may be fined, and all transactions made by the new director may be cancelled.

Results

After the old general director is removed from office, a new person must be appointed in his place. At the same time, the law does not provide for the period that an LLC can exist without a manager. Yes, there is no need for this, because conducting activities without a director or someone performing such duties is impossible. Shifting authority to other employees is a temporary measure that cannot be used permanently.

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Can an LLC operate without a CEO?

About the responsibility of founders and managers of LLC

He is appointed by the meeting of founders. The legislation provides the founders with the opportunity to create the Management Board of the company and the Board of Directors.

But the creation of these bodies is not a mandatory requirement.

To create or not to create them is the right of the LLC founders. The mandatory body of the company is the Audit Commission. The composition of the commission is approved at the general meeting of founders.

The commission exercises control over the financial activities of the LLC and the safety of its property. Responsibility of LLC founders by Law No. 14-FZ of February 8, 1998

Responsibility of the founder for the activities of the LLC in 2018

Both a citizen of the Russian Federation and a non-resident have the right to found an LLC.

Restrictions on establishing an LLC exist for military personnel, deputies and other officials state power. Responsibility within the authorized capital The conditions under which the founder of an LLC is responsible for the obligations of the organization are described in Law No. 14-FZ dated 02/08/1998, as well as in the Civil Code of the Russian Federation.

Thus, Article 1 of this code provides that in the event of liquidation or bankruptcy of an organization, the shareholder of the LLC is liable exclusively with the property and assets of this organization. That is, in the event of a financial collapse of an enterprise, when the company’s debts to creditors and counterparties exceed the actual value of the authorized capital and all property (both movable and immovable), the owner of such an enterprise legally has the right not to cover the difference in debt with personal funds or property.

There is virtually no risk of losing bank assets, real estate, cars and other personal possessions. This legislative norm is confirmed by the Civil Code of the Russian Federation.

Responsibility of the CEO of an LLC: how to protect yourself

To avoid abuse, the labor code establishes that a person holding the position of general director must be responsible for damage caused to the organization as a result of erroneous actions.

The financial liability of the general director of an LLC extends not only to direct losses arising through his fault, but also to profits lost due to his inaction. In the first case, we mean actual material damage: compensation for the value of lost property; compensation for costs incurred by a person to restore rights that the manager is guilty of violating.

In the second - lost income that the company could have earned if the director had taken all possible steps for this, timely and sufficient.

Who is responsible director or founder

The speakers were representatives of the Economic Court of Minsk, as well as the Department of Rehabilitation and Bankruptcy.

The main topic of questions that bankruptcy trustees and practicing lawyers asked the judges was the application of the laws on subsidiary liability. Photo from the site gerontonews.com It is well known that 5 and 10 years ago, bringing the director and founder of a bankrupt company to subsidiary liability was the exception rather than the rule.

Is the director of an LLC (hired) responsible for the activities of the company during its liquidation if he was fired on the eve of liquidation (removed from the Unified State Register of Legal Entities)?

are not its officials.

Disciplinary liability can only be applied to an employee who has a valid employment relationship with the organization. Accordingly, in in this case it is not applicable. According to Art.

44 Federal Law “On Limited Liability Companies” members of the board of directors (supervisory board) of the company (can be elected from among the founders), the sole executive body of the company (director) are liable to the company for losses caused to the company by their guilty actions (inaction), if other grounds and amount of liability are not established by federal laws.

Responsibility of the director and founders of the LLC

Officially, the founder is a so-called manager, that is, in his hands are actually the main levers of managing the company and personnel (whether he used this right is his business).

Therefore, certain types of liability may also be applied to the LLC founder.

It all depends on what function he performed at the enterprise, and whether his actions/inactions were lawful and aimed at the well-being of the organization.

Director's liability If in the case of the founders the liability was limited only to the invested share, then with the director such a number will not work.

Responsibility of a participant for the debts of the LLP

The management structure of an organization may include the positions of director and general director. Could this suggest significant differences between the responsibilities of employees working in the respective positions?

Facts about the position of "CEO"

Collocation "CEO" in Russia it is used to name the sole management body of a commercial company - for example, JSC or LLC. The general director is not necessarily the owner of the organization. He may be exclusively an employee and not have, in principle, any participation in the share capital of the company.

Abroad, consonant terms (such as, for example, General Director) correspond to the highest executive position, usually in non-profit organizations. In English-speaking countries, the person who solely heads the governing body commercial organization, is called the Chief Executive Officer, or CEO. This term - CEO - is widespread, although in unofficial use, also in Russia.

In some cases, the phrase “CEO” may be replaced by other terms - for example, “president”. At the same time, the second name of the managerial position is most often used in the context of a group of companies. While the term "CEO" is generally used to refer to the sole governing body in stand-alone firms.

Facts about the position of "director"

Term "director" in some cases it can be synonymous with the one discussed above. For example, in the provisions of the Federal Law “On Joint-Stock Companies” there is a rule according to which the sole management body of a company can be referred to by both the first and second terms. But in Russian enterprise management practice, the term “director” is most often used:

• to designate a position responsible for the development of any functional area of ​​business (for example, “marketing director”, “commercial director”);
• for the purpose of designating the highest management position in non-profit organizations(for example, “school director”, “museum director”).

Regarding the designation of functional positions in non- commercial structures, in this case the phrase “deputy director” is most often used.

For example, “deputy school director for educational work" Although, of course, in commercial structures “deputies” are a fairly common position.

A remarkable fact is that some companies form so-called Boards of Directors. However, the directors themselves, whether the CEO or functional managers, may have nothing to do with such management bodies.

The Board of Directors often includes people who do not work for the company at all. A synonym for the term in question is “Supervisory Board”.

Can an LLC operate without a director?

It can form additional structures - such as committees.

Comparison

The fundamental difference between a general director and a director should be sought not from a legal point of view, but in the aspect of the practical use of relevant terms to designate certain positions in the company. The scope of the organization’s activities also matters - business or non-profit activities.

Thus:

• key figure in the management structure of Russian commercial companies- as a rule, “general director” (or, informally, CEO), non-profit organizations - “director”;
• functional managers in commercial firms are usually “directors” (marketing, personnel, etc.)

  d.), in non-profit organizations - deputies.

In the structure of the Board of Directors of businesses, those people who occupy any of the positions noted above may not be present at all.

Table

Having considered the difference between a CEO and a director, we will reflect the key criteria that we have identified in the table.

Responsibility of the General Director

The general director (director, president) is elected by the general meeting of the company's participants for a period determined by the company's charter.

A company without a director: is it possible and necessary?

The General Director (director, president) can also be elected from outside its participants. The General Director, as an employee, is subject to all relevant requirements of labor and migration legislation. It is obvious that the activities of the General Director are associated with increased risk, because he independently makes decisions, including on the management of the property of the Founders.

Responsibility in LLC

In addition, the obligations extend to other areas of the Relationship. The founder is the person(s) who signed the agreement on the establishment of the Company and provided all the necessary documentation.

After registration, they automatically become equal participants.

the ability to manage the affairs of the organization; have access to the Company’s books and documentation, receive any information about its activities; take part in the distribution of profits; can leave the LLC on their own initiative; have the right to sell or alienate their share of the Authorized Capital in any other way; may claim part of the organization’s property after its liquidation; other rights established by the Charter and legislation of the Russian Federation.

Timely contribution of your share to the authorized capital.

What is the CEO of a Russian company responsible for?

Continuing the conversation about the civil liability of the director, let us turn to such a basis as the insolvency (bankruptcy) of the company through the fault of persons who have the right to give instructions mandatory for this legal entity or otherwise have the opportunity to determine its actions.

In accordance with Article 2 of the Federal Law of October 26, 2002 N 127-FZ “On Insolvency (Bankruptcy)” (hereinafter referred to as “Law No. 127-FZ”), this is a person who has or had for less than two years before the decision by the arbitration court applications for declaring the debtor bankrupt, the right to give instructions that are binding on the debtor organization.

What are the responsibilities and penalties of the LLC director and founder for non-payment of wages and debts?

It forms the directions of activity of a legal entity, personnel policy, and also resolves many other issues related to the activities of the LLC, representing its interests. The director can be from among the founders, or appointed from outside. In this matter, it is necessary to describe the provisions of the Labor Code of the Russian Federation, the Civil Code of the Russian Federation, the Criminal Code of the Russian Federation, the Code of Administrative Offenses, and the Tax Code of the Russian Federation.

In addition, to Article 14-FZ of 1998. As an executive body acting individually, the director of the LLC is responsible to contractors, partners, and the state for committing illegal manipulations.

Who is responsible director or founder

This, in fact, is what makes LLC convenient.

After all, it turns out that a participant in a legal entity risks only his share in the authorized capital, which, as a rule, amounts to no more than 10,000 rubles.

Also, the participant risks the Company’s property, but how much property is on the balance sheet of the enterprise? As a rule, it is quite small, especially if the company operates using not entirely legal methods.

That is why LLC is one of the most popular organizational and legal forms. However, there are some exceptions to this provision.

The director of an LLC is hired by the founders to manage the enterprise, and his fate (in terms of liability) is unenviable.

If something happens, he bears full legal responsibility - financial, criminal, and administrative.

The manager's guilt must be proven in court. Moreover, the founders of the company can sue the director. We can immediately say that in terms of liability, the founders of an LLC are protected by law.

What rights and responsibilities do the founders of an LLC have?

This means that the founder can transfer his share to third parties (unless otherwise provided by the organization’s Charter), alienate it depending on external circumstances, and also demand that the Company buy out his share; Receive your share upon exit or collapse; Appoint and remove the management of the Company in accordance with its Charter. Exit at any time after fulfilling your obligations and the mandatory exit procedure. These are, so to speak, the legal rights of the participant.

In accordance with Art.

9 of the Law “On Insolvency and Bankruptcy”, the head of the debtor is obliged to submit an application from the debtor to the arbitration court if the debtor meets the criteria of insolvency and (or) signs of insufficient property; foreclosure on the debtor’s property will significantly complicate or make it impossible economic activity debtor, etc.

Can an organization operate without a leader?

According to the current legislation (Article 40 of the Law on Limited Liability Companies), one of the management bodies of the company is the sole executive body (director, general director, president and others).
Guided by subparagraph “l” of part 1 of Art. 5 of the Law on State Registration of Legal Entities, the Unified State Register contains information about “the last name, first name, patronymic and position of a person who has the right to act on behalf of a legal entity without a power of attorney, as well as passport data of such a person or data of other identification documents in accordance with with legislation Russian Federation, and taxpayer identification number, if available.”
Thus, in accordance with the current legislation, the Unified State Register of Legal Entities contains sufficient and comprehensive information about the executive body (other management bodies are not provided for by the Law on LLC).

However, the executive body has the right to delegate part of its powers as an executive body to another person (based on a power of attorney).

So part 1 tbsp. 185 of the Civil Code of the Russian Federation provides that “A power of attorney is recognized as a written authority issued by one person to another person for representation before third parties,” and part 5 of this article establishes that “A power of attorney on behalf of a legal entity is issued signed by its head or another person authorized to do so.” its constituent documents, with the seal of this organization attached.

A power of attorney on behalf of a legal entity based on state or municipal property to receive or issue money and other property assets must also be signed by the chief (senior) accountant of this organization.”

In this regard, in order for the executive director to exercise the powers entrusted to him to carry out actions to conclude contracts, it can be executed by an appropriate power of attorney (the requirement for notarization of this power of attorney is not mandatory in nature, with the exception of transactions requiring a notarized form of power of attorney)

For reference: I draw your attention to the following fundamental fact: the executive director in this case is a hired employee who is not part of the management body, in accordance with current legislation, although he performs part of the functions of this body. When appropriate changes are made to the company's Charter, the structure of the company's management bodies must be changed.

The procedure for appointing the general director of an LLC with one or more founders is very similar.

Can an organization exist without a director?

The main difference is on the basis of what document personnel changes occur. If the organization has only one founder, then he makes the sole decision. If there are several founders, then the minutes of the general meeting are drawn up.

Step-by-step instruction

So, the organization decided to change the CEO. For this procedure to be legal, it is necessary to act in strict accordance with Russian legislation and the organization’s Charter. The procedure will be as follows:

1. First, an applicant for the post of general director must declare his desire to obtain the position. This must be done in writing. Moreover, the document is drawn up not in the name of the current general director, but in the name of the chairman of the general meeting of founders (in the case of one founder - in his name).
2. If, during the consideration of the application, the founders at the general meeting decide that the candidacy of the potential director is suitable for them, then the question of removing the current general director from the post is raised. Moreover, he can not only be fired, but also transferred to some other position. At the same meeting, the issue of hiring a new person to the post of general director is decided. All personnel changes must be recorded in the protocol and signed properly.
3. The new director receives a number of powers. Thus, he can make decisions regarding the activities of the company without a power of attorney. Therefore, you need to enter information about the new manager in the Unified State Register of Legal Entities, thereby notifying the tax service. The newly appointed director can deal with this issue by submitting an application and other documents to the Federal Tax Service.
4. Within 5 days, the director will receive an extract from the Unified State Register of Legal Entities with all changes.

By the way, a person can begin his activities as a general director even before all information about him is transferred to the tax service.

List of required documents

Hiring a person to the post of general director requires drawing up a series of mandatory documents, namely:

A job description must be drawn up, which must be familiarized to the person taking up the position. It must specify the rights, duties and powers of the person holding the post of general director.

Personnel nuances

CEO - most important person companies. Therefore, his hiring must be carried out in strict accordance with Russian legislation. Thus, some LLCs use a standard form for hiring a general director. But this is not entirely true, because the document must indicate that the basis for hiring is the decision of the general meeting or the sole founder. The order must also contain the date of employment, details of the protocol (its number and date of preparation).

The list of required documents for employment may vary. But it definitely includes a passport, work book, educational documents. Additionally, the founders can request certificates of completion of courses, recommendations from other places of work, proof of knowledge foreign languages, software or something else.

How long is a CEO hired for?

If you follow the rules labor law, we can immediately say that a contract can be concluded with the new general director for a specified period or for indefinite time. A specific decision is made in accordance with:

• decision of the board of directors;
• LLC Charter.

It is also necessary not to forget about the presence of federal laws in various industries that determine the maximum terms for holding the position of general director. For example, in the agricultural sector it cannot exceed 5 years.

When setting a specific deadline, the founders of the company must be guided by several criteria:

• should not be too long (most often set at 2 - 3 years);
• should allow the general director to fully fulfill the tasks assigned to him.

What else needs to be done?

When a person is hired, you need to inform the bank about the change of director. If a current account is opened there, you will also have to provide the institution with the originals of the employment order and the decision of the meeting of founders. Sample signatures of the new general director are also required.

A number of powers may not be specified in the employment contract and job description. To expand the range of actions of the new employee in this case, you will need to draw up a power of attorney and have it certified by a notary.

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A participant in a limited liability company, sometimes called a founder (and sometimes erroneously), is, according to Article 7 of the Federal Law “On LLC,” an individual or legal entity participating in the LLC. This can be a citizen of the Russian Federation, a foreign citizen, and, if we are talking about legal entity- it can also be a resident or non-resident of the Russian Federation.

The concept and characteristics of a founder, who can become a founder

The founder of an LLC is the one who establishes it. Essentially, it looks like this: a group of people gathers, decides to create a company, approves the charter of this company, enters into an agreement on establishment among themselves, where they describe how they will manage it, as well as who, how much, and when invests in the authorized capital , and ultimately carry all the documents for state registration. The sole founder does all this alone, and does not enter into an agreement with anyone, he simply makes a decision.

The founder may be another legal entity. person, and even the Russian Federation represented by the Federal Property Management Agency. And if everything is clear with the Russian Federation, then for individuals. persons and legal entities persons have a number of criteria according to which they can act as founders:

The difference between a participant and a founder

What is participation in an LLC and how does it differ from a foundation? The founder, as mentioned above, establishes, that is, and after that becomes a participant. Or another person invests in this LLC, or more precisely in its authorized capital, money or property, and also becomes a participant, but at the same time it is incorrect to call him a founder - he did not establish this company.

However, for example, in non-profit organizations there are no participants, there are only founders.

How to become a founder of an LLC

To become a founder of an LLC, you must meet the above criteria. Everything else is simple. A decision is made to establish, the charter is approved, payment is made, and an application is drawn up in form P11001. All this is submitted to the registration authority (Federal Tax Inspectorate), and after state registration you become a participant in the LLC, while being its founder (since you created it).

Number of founders in the company

There can be no more than 50 founders in an LLC. If there are more of them, it must be transformed into a production cooperative or a joint-stock company. Or, if this is not done, liquidate.

Rights and obligations of the founder

The rights and obligations of LLC participants are specified in Article 8 of the Federal Law “On LLC”. In particular, these are:

• participation in managing the affairs of the society;
• obtaining information about the activities of the company and familiarization with its documents;
• taking part in the distribution of profits;
• the right to withdraw from the LLC, if it is in the charter;
• receiving part of the property in the event of liquidation of the LLC.

The articles of association may provide for additional rights.

Establishment agreement

The establishment agreement governs. It is concluded between the founders when their number exceeds one. The form is simple written. According to Part 5 of Art. 11 Federal Law “On LLC”, the agreement on establishment determines:

"the procedure for their implementation joint activities on the establishment of the company, the size of the authorized capital of the company, the size and nominal value of the share of each of the founders of the company, as well as the size, procedure and terms of payment for such shares in the authorized capital of the company.”

Founders meeting

The meeting of founders is held at any address. Before the meeting, it is necessary to record the attendance and credentials of each of them (usually this is done by one of them, or a specially invited person; sometimes a notary).

The founders' decision to create a company is recorded in the form of minutes of the meeting; all decisions must be made unanimously.

Founder's responsibility

According to Part 6 of Art. 11 Federal Law “On LLC”,

“The founders of the company bear joint liability for obligations related to the establishment of the company and arose before its state registration. The company is liable for the obligations of the founders of the company related to its establishment only if their actions are subsequently approved by the general meeting of the company's participants. In this case, the amount of liability of the company in any case cannot exceed one fifth of the paid-up authorized capital of the company.”

Director and founder in one person, do I have to pay a salary?

• 10/20/2017  
• Accounting  
• Staff   

Should a manager sign a contract with himself? How to avoid mistakes with taxes when calculating the salary of such a director? Below we will try to answer each of these questions.

Employment contract with the founder-director

The legislation of the Russian Federation does not give a direct answer to the question of whether a company should draw up an employment contract in such a situation. federal Service for Labor and Employment believes that a contract is not required. In letter of Rostrud No. 2262-6-1 dated December 28, 2006 it is stated that the work of the director is regulated by the 43rd chapter of the Labor Code. Article 273 of the Labor Code of the Russian Federation indicates that the requirements of this chapter do not apply to the head of the company if we're talking about about its only owner.

Article 56 of the Labor Code of the Russian Federation states that an employment contract is signed by the employer and the employee, that is, the labor relationship is bilateral. In the situation we are considering, this is impossible. The same person cannot sign a contract on behalf of both the employee and the company. From this it is concluded that in our case there is no possibility of signing an agreement.

This point of view is also shared by the Ministry of Health and Social Development of the Russian Federation. Letter No. 22-2-3199 dated August 18, 2009 states that having the same signature on both sides is unacceptable (according to Article 273 of the Labor Code of the Russian Federation). Thus, if the company does not have another founder, an agreement is not needed.

There is also a different view of the situation. Thus, the Federal Arbitration Court Northwestern district confirmed that according to Art. 11 of the Law “On Limited Liability Companies” dated 02/08/1998 (Law No. 14-FZ), a citizen can establish a company alone. In accordance with the first paragraph of Article 40 of this law, general meeting The founders of the company are elected by its sole executive body (this may be the general director, president, etc.) for the period determined in the charter of the LLC.

This person is not necessarily a co-founder of the company. The agreement between the company and the manager is signed on behalf of the LLC. This must be done by the person leading the general meeting of participants where the election took place. Besides, labor contract The general director can be signed by a member of the company who is authorized for this by a decision of the general meeting of founders.

That is, the situation when the sole owner of a company assumes the functions of the head of the same company does not run counter to legal norms and the charter of the company. The position of the court is set out in the resolution of the Federal Antimonopoly Service of the North-West District dated April 19, 2004 No. A13-7545/03-20.

When drawing up an employment contract with the general director, whose role is the sole owner of the company, you must remember the following:

• The CEO must be elected by the board of directors. However, in our case, when there are no other participants in the company, and the employment contract is signed on behalf of the company by one owner, the Company itself acts as the employer;
• Directors are hired for general principles, in accordance with Art. 68 Labor Code of the Russian Federation. The decision of the sole founder of the LLC to appoint a manager forms the basis of the employment order. This order must be signed by the manager himself.

Payroll for the founder-director

Wages are defined in labor legislation as remuneration for work that took place under the relevant contract. If the general director is the sole owner of the company and there is no formal employment contract, the amount of his salary can be indicated in the staffing table.

If an employment contract is concluded, it must contain a condition regarding the payment of labor to the manager-owner (in accordance with Article 57 of the Labor Code of the Russian Federation). It is important to take into account that wages for one full working month (entire time worked and fulfilled labor standards) must exceed the minimum wage (minimum wage) or be equal to it (Article 133 of the Labor Code of the Russian Federation).

In addition to the salary, the general director-owner has the right to a portion of the profits. If there is no employment contract, he can work without salary or bonuses, receiving only dividends. There are several factors to consider when calculating these payments:

• Payment of dividends is permitted no more than once a quarter;
• The dividend amount is calculated based on net profit company, that is, after payment of all obligatory payments;
• The basis for accrual of dividends in each specific case must be the decision of the owner.

Calculating dividends monthly is a fairly common accounting mistake. In this case, a check of the company’s financial statements will perceive it not as dividends, but as wages, which will entail corresponding tax consequences.

How to keep track of the salary expenses of the founding director?

According to paragraph 1 of Art. 255 of the Tax Code of the Russian Federation, accrued wages are part of labor costs. Should the owner-director's salary be included in this category?

Answer to this question depends on availability/absence employment contract. If there is a contract, then it must indicate the salary amount. Accordingly, it can be posted as labor costs.

In the absence of an agreement, you can act at your own discretion. However, here it is necessary to take into account that if an employee de facto works, labor relations exist, even if they are not “on paper” (Part 2 of Article 16, Article 19, Part 2 of Article 67 of the Labor Code of the Russian Federation). In this case, it is appropriate to assume that paragraph 1 of Art. 255 of the Tax Code of the Russian Federation is also applicable in the absence of a contract with the owner-director.

Founder and director in one person: how to pay salaries and is it necessary to conclude an agreement?

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 an 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?

Employment contract with the founding director

The question of whether it is necessary to conclude an employment contract with the director or not does not have a clear answer among specialists. There was an explanation from Rostrud on this matter. Letter No. 2262-6-1 dated December 28, 2006 states: the specifics of regulating the work of the head of an organization are provided for in Chapter. 43 Labor Code of the Russian Federation. According to Art. 273 of the Labor Code of the Russian Federation, the provisions of this chapter do not apply to the head of the organization if he is the only participant (founder) of the organization.

According to Art. 56 of the Labor Code of the Russian Federation, an employment contract is concluded between an employee and an employer. In this situation, in relation to the general director, his employer is absent.

Signing an employment contract by the same person on behalf of the employee and on behalf of the employer is not allowed. 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 No. 22-2-3199 dated August 18, 2009, takes the same position: from the norm of Article 273 of the 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 one and the same signature on both sides, but the organization does not have another owner.

But there are also court decisions. For example, the resolution of the Federal Antimonopoly Service of the North-Western District dated May 19, 2004 No. A13-7545/03-20 states 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. 40 of 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.

So, if an organization enters into an employment contract, then the following should be remembered.

• The board of directors decides on the election of the general director. The employment contract with the general director is signed by the only participant on behalf of the company, since there are no other participants. In this case, the employer will be a Limited Liability Company.
• The hiring of the general director of the company is formalized in the usual manner, in accordance with Art. 68 Labor Code of the Russian Federation. Based on the decision of the sole participant of the LLC to appoint a general director, a hiring order is issued, which will be signed by the general director.

Founding director salary

If the manager is the only participant, in the absence of a written employment contract, the amount of his salary can be provided for in the staffing table.

If there is an employment contract, then according to Art. 57 of the Labor Code of the Russian Federation, the condition on remuneration of the employee must be included in the employment contract. According to Article 133 of the Labor Code of the Russian Federation, the monthly salary of an employee who has fully worked during this period the standard working hours and fulfilled the labor standards ( job responsibilities), cannot be lower minimum size wages (minimum wage).

In addition, the director, who is the sole founder, may receive dividends and not receive a salary. But when paying them, the following rules must be observed:

• pay dividends no more than once a quarter;
• pay from the organization’s net profit remaining after paying all taxes;

The most common mistake when paying dividends is paying them monthly. 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 was not concluded with the general director - the sole founder.

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

Webinars for accountants at Kontur.School: changes in legislation, features of accounting and tax accounting, reporting, salaries and personnel, cash transactions.

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Can a founder (not a director) be an employee of the company?

Can the founders of an LLC be full-time employees of the company? In this case, we are not talking about the general director, who is also the founder, but about the other founders (of which there are several); is the organization obliged to hire them as staff?

To answer the question, the following documents and regulations were used:

• Constitution of the Russian Federation;
• Labor Code of the Russian Federation (LC RF);
• Civil Code of the Russian Federation (Civil Code of the Russian Federation);
• Code of the Russian Federation on Administrative Offenses (COAP RF);
• Federal Law of 08.08.2001 No. 129-FZ “On state registration of legal entities and individual entrepreneurs»;
• Federal Law of December 6, 2011 No. 402-FZ “On Accounting”;
• Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”;
• Resolution of the Supreme Court of the Russian Federation dated February 28, 2006 No. 59-ad06-1;
• Resolution of the Federal Arbitration Court of the North-Western District dated February 18, 2009 in case No. A56-7625/2008;
• Resolution of the Federal Arbitration Court of the North-Western District dated December 20, 2010 in case No. A21-13642/2009;
• By the decision of the Third Arbitration Court of Appeal dated January 21, 2011 in case No. A33-7629/2010.

Based on the information provided, we consider it necessary to report the following.

The issue of state registration of a limited liability company upon creation is regulated by the norms of the Civil Code of the Russian Federation and the Federal Law of 08.08.2001 No. 129-FZ “On state registration of legal entities and individual entrepreneurs”, and issues of labor relations and other legal relations related to labor, — Labor Code of the Russian Federation.

As follows from the provisions of Articles 48, 52, 53, 56, 57, 59, 61 of the Civil Code of the Russian Federation and Articles 5, 9, 20, 23 of the Federal Law of 08.08.2001 No. 129-FZ “On state registration of legal entities and individual entrepreneurs ” and others, the terms “participant” and “founder” are equivalent for the legislator in the event that the person (persons) who participated in the establishment of the company acts as a participant in the legal entity. If a person acquired shares in a legal entity after its state registration, such a person cannot be called a founder and is a participant.

The most common case of labor participation of founders (participants) in their own LLC is their involvement as the sole executive body (president, director, general director, manager, etc.) or chief accountant. In small organizations, management responsibilities accounting often takes over the sole executive body, which is allowed by Part 2 of Art. 19 of the Federal Law of December 6, 2011 No. 402-FZ “On Accounting”.

The law establishes that the property of the founders of a limited liability company and the property of the company are divided. The founders (participants) of the company are not liable for the obligations of the company, and the company is not liable for the obligations of the participants, which follows from Art. 87 Civil Code of the Russian Federation.

In accordance with Article 37 of the Constitution of the Russian Federation, everyone has the right to independently choose in which work activity to apply their strength. Forced labor is prohibited. Work must be paid. The employment contract, in accordance with Art. 56 of the Labor Code of the Russian Federation recognizes an agreement between an employee (individual) and an employer, according to which the employer is obliged to provide the employee with the opportunity to perform any labor function and pay for the employee’s work, and the employee must perform this function personally and has the right to remuneration for his work. The employee must follow the rules labor regulations, valid for the employer.

On behalf of the employer (limited liability company), employment contracts are concluded by the sole executive body of the organization as a person authorized to enter into external relations on behalf of the company without a power of attorney, which is confirmed judicial practice, for example, by the decision of the Third Arbitration Court of Appeal dated January 21, 2011 in case No. A33-7629/2010, by the decision of the Federal Arbitration Court of the North-Western District dated February 18, 2009 in case No. A56-7625/2008. An exception is made only for the sole executive body of the company; in some cases, an employment contract may not be concluded with him.

According to Art. 67 of the Labor Code of the Russian Federation, an employment contract must be drawn up in writing no later than three days from the moment the employee is actually admitted to work, which is also confirmed by the opinion set forth in the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation Labor Code of the Russian Federation".

Failure to conclude an employment contract through the fault of the organization entails administrative liability under Art. 5.27. Code of Administrative Offenses of the Russian Federation (resolution of the Supreme Court of the Russian Federation dated February 28, 2006 No. 59-ad06-1).

The property of a limited liability company is separated from the property of its founders. Citizens have the right to independently choose whether to work or not to work in an organization of which they are founders. Naturally, this applies only to individual founders. Founders - foreign citizens, in order to work for the organization they founded, in established cases, are required to obtain a document giving the right to work on the territory of the Russian Federation.

Labor legislation specifies that any employment relationship must be formalized by an employment contract, which is concluded in writing no later than three days from the date of the employee’s actual admission to work. Exceptions are possible only in a number of cases of registration of work in the company by its sole executive body. At the same time, the sole executive body still has an employment relationship with the company.

The current legislation does not contain any exceptions regarding the formalization of relations between founders and a limited liability company. Thus, the labor relationship between the founding employee of the company and the limited liability company must be formalized by an employment contract in writing. For an LLC’s evasion from concluding employment contracts, administrative liability is provided in the form of a fine and disqualification (if the offense is repeated). Employment contracts on behalf of a limited liability company are signed by the sole executive body of the company (president, manager, director, etc.)

At the same time, a different form of relations between the founder and the established company is possible. But this requires a different content of the relationship between these persons. The relationship between the parties should not be an employment relationship. The conditions that allow a relationship to be classified as labor are set out in Art. 56 Labor Code of the Russian Federation. Another option for cooperation between an organization and a founder is civil law relations, i.e. conclusion of a civil law contract, relations under which are not regulated by labor legislation (Article 11 of the Labor Code of the Russian Federation). In other words, it is necessary that the actually existing relations do not repeat the relations of the parties in connection with the conclusion of an employment contract, only under a different “sign”. Thus, the court may not recognize the existing relationship as an employment relationship in cases where it does not follow from the concluded contract that the employee undertakes to obey the internal labor regulations of the employer, if the contract was concluded for the performance of one-time work and it does not follow from the contract that the organization provides an individual with a workplace , tools and materials for work (i.e. the contract is executed by the dependent individual). This conclusion follows, for example, from the decision of the Federal Arbitration Court of the North-Western District dated December 20, 2010 in case No. A21-13642/2009.

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What is the best way to resolve the issue of the salary of the company’s founding general director?

Ekaterina Gosteva
tax consultant 1C-WiseAdvice

In practice, there are often situations where the general director is the only founder. At the stage of development of a company, you always want to save money, including on paying yourself a salary and “salary” taxes, as well as by drawing up zero reporting, so as not to spend money on complex accounting.

But if you pay wages even at the “minimum wage” (in Moscow – 16,500 rubles), then taking into account income tax and contributions to funds, “salary” costs will amount to about 23,500 rubles. For many at the stage of business formation, even this amount is quite significant. In addition, when calculating salaries, there can be no talk of any “zero” reporting - reporting will have to be prepared, not only for the Federal Tax Service, but also for funds (FSS and Pension Fund). And this will lead to additional financial costs.

In this regard, the question arises: does the sole founder, who is the CEO, need to enter into an employment contract and pay himself a salary, or can this be somehow done without?

Let's start with the fact that the legislation of the Russian Federation does not provide for any clause or article that directly states that the sole founder-general director is allowed not to pay a salary. However, the legislation does not contain a rule obliging it to be paid. All justifications for the possibility of not paying wages are based on the interpretation of legal norms and explanatory letters from departments.

There is no provision in the legislation obliging the payment of salaries to the sole founder-general director. Justifications for the possibility of not paying wages are based on the interpretation of legal norms and explanatory letters from departments

Do you need an employment contract?

Let us turn to Chapter 43 of the Labor Code of the Russian Federation “Features of labor regulation of the head of the organization and members of the collegial executive body of the organization.”

According to Article 273 of the Labor Code of the Russian Federation, the provisions of the chapter apply to the heads of organizations, regardless of their organizational and legal forms and forms of ownership, with the exception of those cases when the head of the organization is the only participant (founder).

That is, the law directly states: if the manager is the only founder, then the labor regulations of the head of the organization do not apply to him. Including the provisions of Article 275 of the Labor Code of the Russian Federation on concluding an employment contract with a manager.

It is not very clear what to do with signing an employment contract. In the case where the founder and manager are the same person, it turns out that the general director will have to enter into an employment contract with himself. Indeed, in this case, the signatures on the part of the employer and on the part of the employee will be the same.

Explanations for this situation are provided by Rostrud in letter dated 03/06/2013 No. 177-6-1. And this is how officials reason.
An employment contract is a bilateral agreement between an employee and an employer. Each party to the contract assumes certain obligations. The employee is obliged to perform labor functions in accordance with the established procedure. The employer must provide appropriate working conditions. If one of the parties is absent, the contract cannot be concluded. Therefore, if the founder and manager are the same person, there is no need to conclude an employment contract.

The possibility of not concluding an employment contract was confirmed by the Ministry of Finance of Russia in its letter dated February 19, 2015 No. 03-11-06/2/7790. The department also believes that the director cannot sign an employment contract with himself. And since there is no contract, then there are no grounds for paying wages.

In our opinion, there cannot be a violation of the law if the general director works, but there is no employment contract, since the duties of the director are one thing, and the labor relationship with the employee is another. The General Director is obliged to act on behalf of the organization on the basis of the Charter; for this he does not have to enter into an employment relationship with his company.

In our opinion, the absence of an employment contract is the safest way to avoid paying wages to the director.

The absence of an employment contract is the safest way to avoid paying wages to the director. The general director can perform his functions on the basis of the order to take office and the Charter

Thus, labor relations that involve the payment of wages are not necessary for the general director to perform his functions as a sole executive body. The general director can perform his functions on the basis of the order to take office and the Charter.

If the general director is the sole founder, he is not obliged to enter into an employment contract with his company, obliging himself to perform labor functions and comply with internal labor regulations. He can perform all his functions as a sole executive body at any time, without limiting himself to the confines of a worker.

As for the salary, if it is still planned to be paid, an employment contract can be concluded, because the signing of an employment contract on both sides by the same person does not contradict labor legislation.

No questions arise in a situation where the general director is not the only founder. In such situations, an employment contract can and should be concluded. It can be signed by one of the founders.

How to justify non-payment of wages

So, if there is no employment contract with the CEO who is the sole founder, dividends may be justification for the founder’s source of income. At the same time, the company is not obliged to use all its net profit to pay dividends; some of it can be used to develop the business.

Here are the most common arguments for non-payment of wages.

• Dividends instead of salaries

Quite often the argument is made that the founder-CEO receives dividends instead of salary. However, during the period of its development, until the organization has gained momentum, it may not have a net profit, so there is nowhere to pay either salary or dividends to the founding director.

If a decision is made to pay only dividends to the founding manager, it is necessary to comply general rules for processing such payments. Payments must be made:

no more than once a quarter;

at the expense of the organization’s net profit remaining after paying all taxes;

based on the owner's decision.

If these rules are not followed, then both the tax office and inspectors of extra-budgetary funds will try to prove that these payments are the manager’s salary, and not dividends, and may charge additional insurance premiums.

• All profits go towards development

In the first stages of activity, as a rule, all profits are directed to the development of the company. This legal way reduce the amount of dividends paid.

There is also a way not to pay wages if there is an employment contract, namely:

• Indefinite leave without pay

To do this you will need to fill out:

application by the general director to grant him indefinite leave without pay;

an order granting the general director indefinite leave at his own expense.

At the same time, there are concerns about how a director on vacation can carry out his functions. However, the legislation of the Russian Federation does not provide for the suspension or termination of the powers of the head of an organization during the vacation period. The General Director has the right to exercise the powers of the sole executive body of the organization. And also has the opportunity to provide the range of her interests in relations with third parties, carry out transactions, issue powers of attorney, including during vacation.

Way to save
If an employment contract is concluded and the director’s salary is paid, then you can save money by stipulating in the employment contract the condition of working part-time, i.e. part-time (4 hours instead of 8 hours a day, 20 instead of 40 hours a week). Then the salary can be half as much. True, in this situation it is better to focus not on the regional “minimum wage”, but on the average salary level in your industry. Recently, for tax officials, the compliance of wages with the minimum wage has ceased to be a criterion for the absence of “salary” schemes; they compare company salaries with industry averages.

To summarize the above, I would like to say that in our practice, cases of imposition of penalties in the absence of an employment contract or non-payment of salaries to the director are extremely rare. Therefore, we believe that it is not worth wasting time on registration large quantity unnecessary paperwork and worry about liability when the founding CEO doesn't get paid.

1c-wiseadvice.ru

Ministry of Finance: the director - the only founder should not pay himself a salary

The head of an organization using the simplified tax system, who is its sole founder, cannot calculate and pay his own salary. Accordingly, he does not have the right to take into account wages paid to himself as part of labor costs. The Ministry of Finance of Russia announced this in a letter dated 02/19/15 No. 03-11-06/2/7790, thereby confirming its position on this issue.

Quote (BukhOnline Editorial): The head of an organization on the simplified tax system, who is its sole founder, cannot calculate and pay his own salary. Accordingly, he does not have the right to take into account wages paid to himself as part of labor costs. The Ministry of Finance of Russia announced this in a letter dated 02/19/15 No. 03-11-06/2/7790, thereby confirming its position on this issue.

This decision should be made by you. As for the recommendations and analysis of various legal positions on this issue, they are in the article, a link to which is given in the text of the news:

In addition, it should be remembered that letters from the Ministry of Finance and other executive authorities are not sources of law and do not create legal norms. This is just an interpretation of the law. And an act of interpretation of law is mandatory for application and cannot be challenged only in one case - if this act of interpretation of law is issued Constitutional Court RF.

Accordingly, if you think that it is necessary to conclude an employment contract with the director, the sole founder, and pay him a salary, you have the right to do so. Moreover, as was shown in the article linked, this position is justified and consistent. However, you need to be prepared for the fact that inspectors may read this letter from the Ministry of Finance and be guided by it during inspections. This may result in you having to defend your position in court.

Please read what I wrote just above.

There is enough information in my message to independently accept management decision. And no one will give you ready-made solutions. Conduct an analysis, assessing the ratio of pros and cons different options and then deal with the consequences decisions made- this is your task, not ours and not the Ministry of Finance. We only provide the information necessary to make appropriate decisions and choose a course of action.

Good afternoon
Dear colleagues, let's read the text of the letter.
In the letter, the taxpayer asks: “I am the sole founder of the LLC. At the same time, I appointed myself the director of the enterprise and am the only employee of the enterprise. The LLC is on a simplified taxation system.
Should I pay myself a salary, provided that I still have another permanent job?”
In my opinion it doesn't even matter Additional Information that there is another, permanent place of work.
As I understand it, if you rephrase the question, it could sound like this: “Can I not pay myself a salary?”
And the answer is simple and unambiguous - YOU CAN.
It is not clear why the author of the letter from the Ministry of Finance, Deputy Director of the Department
R.A. Sahakyan categorically concludes that “. The head of an organization, who is its sole founder and member of the organization, cannot calculate and pay wages to himself.
Based on this, the above-mentioned head of the organization does not have the right to take into account as expenses when determining the object of taxation for the tax paid in connection with the application of the simplified taxation system, expenses incurred in the form of paying oneself wages as labor costs.”
Considering that “this letter from the Department does not contain legal norms, does not specify regulatory requirements and is not a regulatory legal act,” let’s not pay attention to it, this letter only once again misleads law-abiding taxpayers.

I myself am the only founder and director of a company using the simplified tax system (income).
I calculate my salary, transfer contributions and reduce the tax on them according to the simplified tax system (within 50%). I don’t see any problems for myself, because... I am confident that I am acting in accordance with the Tax Code and other current laws of the Russian Federation.

Thanks to the editors for the information about the appearance of such a letter from the Ministry of Finance!

www.buhonline.ru

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When a company is created, the director is elected by the general meeting of participants. An employment contract is concluded with the manager. But according to the law, one person can establish a limited liability company. Is an employment contract necessary in this case and how to conclude it correctly? How to pay for the work of such a “sole worker” and not make mistakes with taxes? You will learn about all this from our article.

The general director of the company is elected by the general meeting of its participants (Clause 1, Article 40 of the Federal Law of 02/08/1998 No. 14-FZ “On Limited Liability Companies”; hereinafter referred to as Law No. 14-FZ). The founders can appoint a person to this position, either from among themselves or from outside.

In general, an employment contract () is concluded with the elected manager. The employer in relation to the employee - general director is the organization represented by one of its owners. On behalf of the organization, the agreement is signed by one of the participants to whom the general meeting has granted such powers.

To avoid controversial and dangerous situations, you can pay both dividends and salaries. In this case, the salary may be the minimum, but not lower than the established one or the industry average.

"Salary" taxes

Both salaries and dividends are taxed, but at different rates. Salary - 13%, dividends - 9%.

Dividends are paid from the net profit of the organization to shareholders (participants) if they have a property right to a share in the authorized capital of the organization. Is not work activity. Dividends are also not payments related to the performance of work (services) under any civil contract. Therefore, they are not the basis for the calculation and, accordingly, payment of insurance premiums ().

On a note

In the event of liquidation of an organization, the director, the sole founder, can assert his rights both as a creditor and as a shareholder.

As a creditor, he will secondarily claim payment in the amount of average monthly earnings ().

As a shareholder, he lays claim to the property remaining after satisfying the claims of all creditors ().

When calculating wages, an obligation arises to pay insurance contributions to extra-budgetary funds. They are accrued on all remunerations and payments in favor of the employee made within the framework of labor relations and civil contracts for the performance of work or provision of services (Article 7 of the Federal Law of July 24, 2009 No. 212-FZ “On insurance contributions in Pension Fund Russian Federation, Social Insurance Fund of the Russian Federation, Federal Compulsory Medical Insurance Fund"). This also applies to the payment of salaries to the director - the only founder. For an organization, this is an expense. Money. But for a person it is undoubtedly a positive factor, since he has the right to all types of social insurance benefits - maternity benefits, etc. - on an equal basis with all other employees. This is directly indicated in subparagraph 1 of paragraph 1 of Article 2 of the Federal Law of December 29, 2006 No. 255-FZ “On compulsory social insurance in case of temporary disability and in connection with maternity.”

Thus, the manager has to make a choice and take into account that with the payment of dividends and a lower income tax rate, contributions for the future pension provision he will have to contribute from personal funds.

How to account for expenses

In general cases, accrued wages can be taken into account as part of labor costs (). What about the salary of the director - the only founder? In our opinion, this clause of the Tax Code is applicable in this case, even if a written agreement with the general director - the sole founder was not concluded. After all, labor relations take place, since the employee is actually allowed to work, regardless of whether the contract is concluded “on paper” or not (,).

There is no need to draw up an employment contract with the director - the sole founder. After all, there should not be the same signature on both sides of the agreement, and the organization does not have another owner (letter from the Ministry of Health and Social Development of Russia dated August 18, 2009 No. 22-2-3199)

Paragraph 1 of Article 255 of the Tax Code determines that labor costs include any accruals to employees in cash and in kind related to the maintenance of these employees, provided for by the laws of the Russian Federation, labor or collective agreements. This paragraph refers, in particular, to established standards legislation. And the basic norms of legislation in the field of labor relations and labor contracts are enshrined in the Labor Code.

In addition, in accordance with all expenses must be economically justified and documented. Labor costs, in the absence of an employment contract, can be confirmed by any documents indicating the existence of an employment relationship between the manager and the organization. It can be staffing table, salary slips and so on. That is, this once again confirms that the expenses for the salary of the general director - the only founder - can be taken into account in tax expenses.

And yet you need to take into account that when checking the Federal Tax Service may not agree with such conclusions and this position will have to defend it in court. But there is positive judicial practice for the taxpayer (resolutions of the Federal Antimonopoly Service of the North-Western District dated October 11, 2007 No. A42-5270/2006, East Siberian District dated October 10, 2007 No. A33-15270/06-F02-6504/07, North-Western District dated April 23, 2010 in case No. A13-5979/2009).

O. O. Kruzhilina, for the magazine "Practical Accounting"

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