Direction of workers to another locality to a new place of work.

REIMBURSEMENT OF EXPENDITURES AT THE MOVEMENT OF THE EMPLOYER TO A NEW PLACE OF WORK

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The article reviews and presents recommendations for the order of sending employees to a new place of work and ways of reimbursing expenses related to moving to another locality.

Key words: sending workers to another locality, temporary transfer, expenses when moving an employee, payments to employees, rotation, lifting.

Keywords: the worker in another area, the temporary relocation, relocation expenses, when the employee benefits to employees, rotation, lifting.

1. 1. Rotation of specialists.

Each organization aimed at dynamic development, the development of new regions and markets, when opening its units, sooner or later faces a shortage of qualified personnel. In order to ensure the timely opening, smooth and efficient operation of new units, often located in another locality, it becomes necessary to send specialists trained for corporate requirements and standards for an extended period. Often, the interests of business development entail changing the place of their residence.

Thus, the conditions for the development of the organization provide, and, in some cases, require activities to rotate employees, i.e. Sending them to a new place of work. This management decision, as a rule, is conditioned by two basic conditions:

- staffing of the staff of the opening unit by employees who have completed corporate training but who have no practical experience, and other situations that require the direct presence of highly skilled professionals with experience to assist and mentor;

- the availability of a vacant post with the dismissal of an employee who previously held this position during the search and appointment of a new full-time employee.

1. 2. The consequences of a "quick" solution.

As practice shows, many employers decide to change the working conditions of this category of workers by increasing their wages. Including, the increases are made up of the cost of living, travel, cellular communications, and sometimes daily allowances and are paid in the form of surcharges or other incentive payments. The amounts are included in the cost of the organization's labor, are taxed on the income of individuals (hereinafter referred to as personal income tax) and are recorded for profit tax purposes.

Applying this decision, additional expenses are incurred on the shoulders of the employer for payment of compensation in the amount of compensation increased by the amount of the personal income tax (hereinafter referred to as personal income tax) withheld from the employee, to be withheld from beneficiaries, to transfer insurance premiums from these amounts. With an extensive network of units, the control of payments and their justification is effectively lost. These accruals also increase the average earnings of the employee, calculated and paid to the employee in specified cases.

In addition, this situation may be conflicting in terms of tax and labor legislation. According to paragraph 1 of Art. 252 of the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation ), expenses that are taken into account for profit tax purposes must be economically justified, documented, formalized in accordance with the current legislation, and produced for the purpose of earning income. Also, the specialists of the financial and tax departments (letters No. 03-03-06 / 1/115 of the Ministry of Finance of Russia and No. 2011-01 of the Federal Tax Service of Russia No. KE-4-3 / 5165) consider the amount of remuneration fixed if the terms of the employment agreement Employee is determined what amount of payment is due to him for the work actually performed. That is, the terms of the employment contract for a particular job should be set to a specific amount of payment in cash or in kind.

An open list of labor costs that are taken into account for profit tax purposes is given in art. 255 of the Tax Code. Thus, any payment to an employee for these purposes can be taken into account if it:

- established by the system of labor remuneration;

- provided for by a labor or collective agreement;

- meets the requirements of art. 252 of the Tax Code.

Sometimes in practice, the provision of long-term leave without pay and the internal consistency of the staff sent. Proceeding from the documents drawn up in these cases, this area has signs of a business trip, which is partially confirmed by the nature of expenses and registration of the "Official assignment for business trip". In the event of controversial judicial situations, these facts will serve as the basis for the emergence of additional monetary obligations of the organization to the employees being sent. To prove the target nature of the payments made will be impossible because of their inclusion in the composition of wages.

In the example given, it is practically impossible to fulfill the requirements of the tax authority without the relevant local acts developed in the organization. In addition, with reimbursement of the organization's expenses for the payment of sickness cards, the Social Insurance Fund, these expenses may not be taken into account on lawful grounds.

3. Application of the norms of labor legislation.

Direction of workers to another locality.

Simultaneously Art. 72 of the Labor Code of the Russian Federation (hereinafter referred to as the RF LC) defines the concept and conditions for the transfer of workers to another job as a permanent or temporary change in its functions and (or) structural subdivision. Including the concept of temporary transfer (Article 72.2 of the LC RF). Thus, the labor law provides for the possibility of temporary transfer of an employee to another job from the same employer for up to one year by a written agreement of the parties. If, at the end of the agreed term, the employer does not offer, and the employee does not require the provision of previous work, the temporary transfer will be considered permanent. The conditions are exhaustive and, by definition, include cases of moving by prior agreement with the employer's employee to work in another locality.

It is necessary to distinguish a temporary transfer to another job from a business trip. The first thing: a business trip is a trip of an employee under the order of the employer for a certain period of time for the performance of an official assignment outside the place of permanent work (Article 166 of the Labor Code of the Russian Federation). It is obligatory for the employee, and unreasonable refusal of the employee from her is a violation of labor discipline, and temporary transfer is possible only with the consent of the employee (by agreement of the parties). Second: unlike a business trip, a temporary transfer can be carried out in the same locality and at the place of work. Third: when sending a business trip, the employee performs a specific service assignment, and not assigned other duties. Temporary transfer (including when the consent of the employee is not required) means that he must regularly perform his / her work function during the entire period of transfer at the time set for him / her. It is not always possible to determine the period of referral of these specialists to another locality and the deadline for the fulfillment of their assigned tasks.

Guarantees for retaining a previously held position and other provisions that meet the interests of the parties, it is advisable to provide for the terms of an additional agreement on the transfer of an employee.

Reimbursement of expenses for hiring (sub-rent) of housing.

The most costly is paying the cost of hiring (sub-renting) of living quarters for workers who have moved to another locality. The cost of hiring (sub-housing) of housing, on average, amounts to 88% of the total amount of "compensatory" payments to employees, the category in question.

In practice, employers with local acts provide for compensation to employees for sublease of housing when they move to a new place of work as part of their wages.

However, according to experts of the Federal Tax Service, such payments do not meet the requirements of Art. 255 of the Tax Code of the Russian Federation and are not payment for performance of labor functions by employees. In this connection, are subject to consideration as payments to the benefit of employees who, on the basis of cl. 29, Art. 270 of the Tax Code can not be taken into account for the purpose of taxing the profits of the organization (letter of the Federal Tax Service of Russia from 12.01.2009 N BE-22-3 / 6 @).

By the same letter, the Federal Tax Service of the Russian Federation allows accounting for the purposes of taxation of profits as part of labor compensation, the expenses of the organization for the provision of apartments for the residence of employees, subject to the employer's obligation to pay part of the salary in a non-monetary form (with a specific definition of the size of this part) fixed in the employment contract.

Judicial practice in some cases differs from the opinion of experts of the Federal Tax Service. So, by the decision of the Federal Antimonopoly Service of the Moscow District of 21.03.2011, No. KA-40 / 1449-11, on the suit (petition) of OAO Gazpromgeofizika against the Moscow Interregional Inspectorate of the Federal Tax Service of Russia for the largest taxpayers in the Moscow Region, the action of the plaintiff on attributing the costs of renting housing to non-resident employees Expenses related to the production and sale and reducing the tax base for corporate income tax are recognized as legitimate. Payment by the company of residence (rent and payment for housing and communal services) of out-of-town workers for the duration of the employment contracts is attributed to compensation when moving to work in another locality (articles 165, 169 of the LC RF). The requirements of the Federal Tax Service for the payment of personal income tax in these cases were unlawful.

Art. 169 of the LC RF obliges the employer to transfer the employee to another locality to compensate his expenses for moving and settling when moving to a new place of residence. According to the definition of art. 129 of the Labor Code, these payments are not wages and are compensatory. As noted by experts of the Ministry of Finance in a letter dated 03.03.2006 No. 03-03-04 / 2/72, such costs are not included in labor costs, since for taxation purposes, separate regulation is applied to them. They are qualified as "lifting" and are taken into account when calculating the profit tax as part of other expenses related to production and sales, on the basis of cl. 5 p. 1 tbsp. 264 of the Tax Code.

At present, the size of the "lifting" is not legally defined, except for budgetary institutions. The costs of moving and arranging an employee may be included in other expenses related to production and sales, within the limits determined by the parties to the employment contract and subject to compliance of these expenses with the provisions of cl. 252 of the Tax Code of the Russian Federation (letter of the Ministry of Finance of Russia dated July 23, 2009 No. 03-03-05 / 138). Obligatory condition - the availability of formalized labor relations at the time of the transfer of an individual with this employer.

In accordance with cl. "And" p. 2 of Art. 9 of the Federal Law of 24.07.2009, № 212-FZ and p. 3 of Art. 217 of the Tax Code of the Russian Federation, the payment of insurance contributions and the withholding of personal income tax are not paid from the said amount.

Thus, by applying a system of "lift" payments in relation to the category of employees in question, the organization's expenses can be more efficient and completely directed to the target recipient. There will be no need to increase the amount of payments for the size of the retained personal income tax.

The compensation of expenses provided by the legislation allows simultaneously to compensate the employee who has moved to a new place of work, by agreement:

- living in a new place at the time of housing search;

- the cost of rent of housing for a period previously agreed with the employer;

- The cost of real estate services;

- Other employee costs agreed with the employer.

In addition, taking into account the current legislation, the Company does not bear additional costs for payment of insurance premiums (until 2012, 34% of the payment amount, from 1.01.2012 - 30%). Expenditures for the payment of "lifting" are subject to accounting for the taxation of profits of the organization, as well as fully directed to reimburse the costs of employees without withholding personal income tax.

Taking into account the established practice, the period for sending an employee to a new job is usually agreed in advance. The cost of renting a house can be determined by the data placed in the Internet resources, or, after the employee provides the concluded contract of hiring (sub-rent) of housing.

At the same time, at the stage of concluding an additional labor agreement on the transfer of an employee, it is reasonable to envisage his duty to work for a certain period of time for a new job. And in case of termination of the employment contract in the stipulated period on the initiative of one of the parties (clause 3 and clause 4 of Article 77 of the LC RF) - in proportion to compensate the employer for money spent on paying lifts, which will also affect the growth of economic justification of these expenses.

Reimbursement to employees of the fare and compensation for the costs of using personal transport for business purposes.

The specified payment is made to workers with the purpose of compensation of expenses on travel for official purposes. For example:

- monthly travel of employees temporarily transferred to a new place of work to their place of permanent residence;

- attraction of specialists from nearby settlements to assist and eliminate negative factors in the activities of the unit;

- specifics of transport communications and the length of a number of regions that affect the quality and coverage of units.

Inclusion of expenses for the use of personal transport in the composition of wages is economically ineffective, as in addition to the costs of compensation, the employer made accruals and payment of insurance premiums from these amounts, the personal income tax was withheld from the recipient.

Article 188 of the LC RF provides for the payment of compensation for the use of the employee's personal transportation and reimbursement of costs associated with its use. The amount of reimbursement of expenses is determined by agreement of the parties to the employment contract, expressed in writing. As a general rule, these payments are not subject to personal income tax (Paragraph 9, Clause 3, Article 217 of the Tax Code of the Russian Federation). The payment is exempt from the imposition of insurance contributions on the basis of cl. "And" paragraph 2 of part 1 of Article 9 of the Law on Insurance Contributions (Federal Law No. 212-FZ of 2009). Allows to compensate employees costs:

- on travel in the amount of actual expenses;

- on the use of personal property for official purposes.

As the financial department indicates (letters of the Ministry of Finance of Russia of 28.06.2012 No. 03-03-06 / 1/326, of 27.03.2012 No. 03-04-06 / 3-78, of 31.12.2010 No. 03-04-06 / 6 -327, as of 05/20/2010 No. 03-04-06 / 6-98, as of 03/24/2010 No. 03-04-06 / 6-47), for this purpose the organization must calculate the amount of compensation, as well as documents confirming:

- property belonging to the employee;

- use of property for official purposes;

- the amount of expenses incurred by an individual.

In accordance with paragraph 11 of Art. 264 of the Tax Code of the Russian Federation, the costs of compensation for the use of personal cars for business trips are subject to accounting as other expenses related to production and (or) sale only within the limits established by RF Government Decree No. 92 or 1 300 - 1 500 Rubles per month. The compensation paid to employees for the use of personal property by any standards is not limited, as confirmed in the Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation of 30.01.2007 No. 10627/06.

Compensation of expenses for cellular communication

The inclusion of these compensations in the compensation structure can not also be an efficient and economical expenditure of funds.

Compensation to employees of their expenses for the payment of communication services for industrial purposes is not subject to personal income tax. This follows from paragraph 3 of Art. 217 of the Tax Code of the Russian Federation (Letter No. 03-03-06 / 2/178 of the Ministry of Finance of the Russian Federation of October 13, 2010 (item 2)). Supervisory authorities note that the payment of service negotiations to the employee is performed in the interests of not the individual, but the organization itself. Therefore, the taxable income of the employee in this case does not arise (FAS Moscow District Decree No. КА-А40 / 15468-09 of 28.01.2010, Federal Antimonopoly Service of the North-Caucasian District dated 18.06.2009 № А53-14011 / 2008-С5-14, FAS North-West District of 23.06.2008 № A42-5160 / 2007, FAS of the Urals District of 12.02.2008 № Ф09-234 / 08-С2).

The employer independently determines the economically justified amount (limit) of compensation associated with the payment of communication services. The specified compensation is not subject to personal income tax provided that:

- the organization conducts an analysis of the employee's negotiations within the allocated limit for their compliance with service purposes. To do this, use the detailed report of the cellular operator (Letter No. 03-03-06 / 2/178 of the Ministry of Finance of the Russian Federation of October 13, 2010 (paragraph 2));

- confirmed the fact of the availability of expenses for the payment of communication services and the official nature of telephone conversations of the employee (FAS Ural District Decree No. F09-2210 / 09-C2 dated 22.04.2009, Federal Antimonopoly Service of the North-Western region of 06.03.2007 No. A56-10568 / 2005).

At the same time, FAS of the Central District in its Resolution No. A35-8471 / 2009 of 24.06.2011 drew attention to the fact that the legislation does not contain a list of documents that confirm the production nature of the conversations. Accordingly, the employer has the right to independently approve (by order or other local regulatory act) the documents necessary for such substantiation.

It is advisable to provide for a local act to provide a cellular communication system that excludes the monetary scheme of reimbursement of expenses for cellular communication. To date, mobile operators offer a fairly extensive package of services for corporate users.

Efficiency.

Applying the procedure provided by the legislation for reimbursement to employees of costs associated with moving to a new place of work, in the cases examined:

- the efficiency and economy of spending the employer's funds is increased, he is exempt from paying insurance premiums, and the recipients - from withholding personal income tax on the payments considered;

- the effectiveness of internal control over the expenditure of funds increases;

- risks of occurrence of disputable questions with supervising bodies decrease;

- the calculation and payment of average earnings to the employee was made without taking into account compensation payments, which is also an economy of the employer's funds.