Compensation for milk is subject to personal income tax. Compensation in exchange for the issuance of milk: legal basis for payments and taxes (Larina N.). personal income tax and insurance premiums

Taxes when issuing milk to employees “for harmfulness”
Terms and conditions of free distribution of milk or other equivalent food products, as well as therapeutic and preventive nutrition, are established in the manner determined by the Government of the Russian Federation.

Decree of the Government of the Russian Federation of March 13, 2008 No. 168 “On the procedure for determining the norms and conditions for the free distribution of therapeutic and preventive nutrition, milk or other equivalent food products and the implementation of a compensation payment in an amount equivalent to the cost of milk or other equivalent food products”, provides, that workers employed in jobs with harmful conditions labor, free distribution of milk or other equivalent food products is carried out in accordance with the list of harmful production factors, under the influence of which the use of milk or other equivalent food products is recommended for purposes.

For workers employed in work with harmful working conditions, the issuance of milk or other equivalent food products may be replaced, upon their written applications, with a compensation payment in an amount equivalent to the cost of milk or other equivalent food products. Such replacement must be provided for by the collective agreement and (or) employment contract.

The very procedure for making a compensation payment in an amount equivalent to the cost of milk or other equivalent food products (hereinafter referred to as the procedure).

The list of harmful production factors, under the influence of which, for preventive purposes, it is recommended to consume milk or other equivalent food products (hereinafter referred to as the List), as well as the norms and conditions for the free distribution of milk or other equivalent food products to workers engaged in work with harmful working conditions , which can be issued to employees instead of milk, are approved by the Order of the Ministry of Health and Social Development of the Russian Federation of February 16, 2009 No. 45n.

According to paragraph 2 of the Norms and Conditions for the Distribution of Milk, free distribution of milk or other equivalent food products is made to employees on the days of actual employment in jobs with harmful working conditions due to the presence at the workplace of harmful production factors provided for by the List.

The rate of free milk distribution is 0.5 liters per shift, regardless of the duration of the shift (clause 4 of the rules and conditions for dispensing milk).

According to clause 13 of the Norms and conditions for dispensing milk in case of ensuring safe (permissible) working conditions, confirmed by the results and conclusion state expertise working conditions, the employer decides to stop the free distribution of milk or other equivalent food products, taking into account the opinion of the primary trade union organization or other body of workers.

Personal income tax when issuing milk to employees

By general rule all types of personal income tax established by the current legislation of the Russian Federation are not subject to personal income tax compensation payments within the limits (paragraph 2, clause 3, article 217 of the Tax Code of the Russian Federation).

Income in the form of the cost of milk given to employees on the days of actual employment in jobs with harmful working conditions is not subject to personal income tax in accordance with the Rules and Conditions, approved. by order of the Ministry of Health and Social Development of the Russian Federation of February 16, 2009 No. 45n (Letters of the Ministry of Finance and the Federal Tax Service of the Russian Federation of August 5, 2016 No. GD-4-11 / 14360 @, of December 11, 2014 No. BS-3-11 / 4256 @).

In the event that milk is issued to employees on days when they are not employed in work with harmful working conditions, income is subject to personal income tax in accordance with the generally established procedure (Letter of the Ministry of Finance of the Russian Federation of October 16, 2014 No. 03-04-05 / 52286).

If the employee performed work with harmful working conditions during half of the established work shift, then the employer is obliged to give him milk free of charge, based on the norm of 0.5 liters per shift.

In addition, according to the department, income in the form of milk or other equivalent food products issued to employees whose working conditions are recognized as acceptable based on the results of certification are subject to personal income tax (Letter of the Ministry of Finance of the Russian Federation of March 31, 2014 No. 03-03-R3 / 13985) .

However, as evidenced arbitrage practice, the cost of milk issued to employees for work in hazardous conditions is not subject to personal income tax even in the absence of attestation of workplaces. As the courts note, the basis for issuing milk to an employee is his actual employment at work under the influence of production factors specified in Appendix No. 3 to the Order of the Ministry of Health and Social Development of the Russian Federation of February 16, 2009 No. 45n. Therefore, certification is not a condition for providing compensation for harmful working conditions. It depends on the presence of harmful production factors in the workplace, under the influence of which the use of milk is recommended for preventive purposes. Therefore, the cost of the issued milk does not generate income for the employee subject to personal income tax (Resolutions of the Federal Antimonopoly Service of the West Siberian District of July 10, 2014 No. A27-16004 / 2013, of the Ural District of March 13, 2012 No. F09-1132 / 12).

Expenses in the form of the cost of free milk given to employees

For the purposes of compensatory accruals related to working conditions, provided for by the norms of legislation, labor (collective) agreements, the company may include in labor costs (clause 4, article 255 of the Tax Code of the Russian Federation).

Is it possible to take into account as part of recognized expenses the cost of milk given to employees free of charge (compensation for milk) or other equivalent food products, if, according to the results of certification, working conditions at individual workplaces were recognized as acceptable due to the absence of harmful production factors?

In this situation, the company's expenses for the free distribution of milk to employees cannot be attributed to compensation payments, since working conditions are not recognized as harmful, in which the levels of exposure to harmful production factors do not exceed the established standards (Article 209 of the Labor Code of the Russian Federation). In such situations, according to the opinion, the cost of milk given to employees free of charge, the company can take into account as part of labor costs, as a payment in kind (Letters of the Federal Tax Service of the Russian Federation of 08.05. March 31, 2014 No. 03-03-Р3/13985).

That is, if such a payment is provided for by an employment or collective agreement, then regardless of its size, the cost of milk can be taken into account as part of labor costs (clause 25, article 255 of the Tax Code of the Russian Federation). Otherwise (absence of harmful factors, milk issuance is not provided for by either the collective or labor contract), the cost of milk is not taken into account for the purposes of taxation of profits (clause 25, article 270 of the Tax Code of the Russian Federation).

Insurance premiums in the absence of attestation of workplaces

All types of compensation payments established by the legislation of the Russian Federation (within the limits established in accordance with the legislation of the Russian Federation) related to the implementation of individual labor duties (paragraphs "and" paragraph 2 of part 1 of article 9 federal law dated July 24, 2009 No. 212-FZ “On insurance contributions to the Pension Fund of the Russian Federation, the Russian Federation, FFOMS”).

The issue of the need to include in the base for calculating insurance premiums the cost of milk (compensation payments) issued to employees employed in jobs with harmful working conditions remains controversial, if the company has not conducted a special assessment of working conditions.

Example #1

Company for the period 2013-2014. milk was given to employees on the basis of a collective agreement, payrolls for wages, cards for individual registration of insurance premiums, and a list of positions. Milk was issued to employees for whom milk is not provided in accordance with the workplace attestation card for working conditions.

During the audit of the FSS of the Russian Federation, it was concluded that the base for calculating insurance premiums for the amount of payment for milk was underestimated, since the working conditions of employees were not recognized as harmful as a result of the special evaluation working conditions (until 01.01.2014 - attestation of workplaces).

However, the court took the side of the company, based on the following arguments.

The basis for the issuance of milk or therapeutic and preventive nutrition to an employee is his actual employment in work related to harmful production factors.

The above norms do not provide for attestation as a condition for granting compensation.

That is, certification and recognition of working conditions for individual jobs as acceptable in terms of chemical, biological and physical factors does not release the employer from the obligation to provide compensation to the employee on the days of actual employment at work related to the presence of harmful production factors at the workplace.

Clause 14 of the Norms and Conditions for the Distribution of Milk provides that other issues related to the free distribution of milk or other equivalent food products are resolved by the employer independently, taking into account the provisions of the collective agreement.

And during the audited period, the company had a collective agreement for 2012-2014, which provides for the obligation of the employer to issue milk to employees employed in work with harmful working conditions.

The general company, in agreement with the trade union committee, approved a list of professions and positions with harmful working conditions, which are provided with free milk (with a milk dispensing rate of 0.5 liters per shift).

In accordance with paragraph 13 of the Order of the Ministry of Health and social development RF dated February 16, 2009 No. 45n, the grounds for the employer to decide to stop the free distribution of milk or other equivalent food products to employees are:

availability of the results of a special assessment of working conditions;

the consent of the primary trade union organization or other representative body of employees (if the employer has them) to stop the free distribution of milk or other equivalent food products to employees based on the results of a special assessment of working conditions at their workplaces.

If the employer does not have data on the results of a special assessment of working conditions or does not comply with the above requirements, the procedure for the free distribution of milk or other equivalent food products, which was in force before the entry into force of Order No. 45n of February 16, 2009, remains.

The trade union organization of the company refused to give consent to the termination of the free distribution of milk or other equivalent products to employees, according to the results of attestation of workplaces for which, according to working conditions, no harmful production factors or excess of established standards for them were revealed.

Thus, the free distribution of milk or other equivalent products is not made dependent on the results of attestation of workplaces (Decision of the CA of the region dated July 05, 2016 No. A14-1610 / 2016).

Consequently, prior to the certification of workplaces, the company is obliged to provide employees employed in jobs with harmful working conditions with free milk in accordance with the adopted collective agreement.

Failure to conduct certification is not a basis for additional accrual of insurance premiums and can only serve as a basis for conclusions about a violation of labor legislation (Resolution of the Arbitration Court of the North-Western District of August 08, 2016 No. A44-3876 / 2015).

A similar legal position is contained in the Decrees of the Arbitration Court of the Novgorod Region dated August 8, 2016 No. A44-3876 / 2015, the Seventeenth Court of Appeal dated November 26, 2015 No. A71-6244 / 2015, the Arbitration Court of the West Siberian District dated June 18, 2015 No. A27-8720/2014 and No. A27-7912/204 of November 6, 2014, AS of the Volga-Vyatka District of October 9, 2014 No. A79-8337/2013, Federal Antimonopoly Service of the Urals District of April 25, 2014 No. Ф09-2274 /2014.

Working conditions are recognized as safe

However, if, according to the conclusion of the attestation commission, the submitted attestation cards and protocols for assessing working conditions, working conditions and workplaces are recognized as safe - optimal or acceptable, cash payments to employees in an amount equivalent to the cost of milk are subject to insurance premiums.

According to Art. 219 of the Labor Code of the Russian Federation in case of provision at workplaces without hazardous conditions work, confirmed by the results of attestation of workplaces, compensation to employees is not established. Therefore, if the actual employment of employees in harmful conditions and the impact on them of harmful factors provided for in the List is not confirmed, the provision of milk to employees and the payment of compensation in return for its cost is not of a compensatory nature (Resolution of the Central Administrative District of the Central District of July 28, 2016 No. A68-7691 / 2015) . The cost of milk given to employees in excess of the norms established by law is also subject to insurance premiums.

Calculation of VAT on the cost of milk transferred to employees

If the company issues employees working in jobs with harmful working conditions free of charge established standards milk or other equivalent food products and the costs of purchasing this milk or other equivalent food products are included in the costs of production and sale of products, then the object of VAT taxation does not arise (Letter of the Federal Tax Service of the Russian Federation for the city of November 27, 2013 No. 16-15 /123500).

However, in a number of cases (for example, in the absence of attestation of workplaces), the tax authorities try to bring the issuance of milk to employees under the object of VAT. Recall that for the purposes of calculating VAT, the gratuitous transfer of the results of work performed, the provision of services to goods, is recognized as the sale of goods, works, services (clause 1, article 39, clause 1, clause 1, article 146 of the Tax Code of the Russian Federation).

As court practice shows, regardless of the certification of workplaces, the issuance of milk to "wreckers" does not form an object of VAT. So, if the costs of providing milk to employees employed in jobs with harmful working conditions are documented and, in accordance with Article 252 of the Tax Code of the Russian Federation, relate to costs associated with production and sales, then the distribution of milk to company employees cannot be subject to VAT (Decision of the CA of the region dated June 24, 2015 No. A08-831 / 2015).

Example #2

The actual distribution of milk was carried out according to the lists of positions and professions approved by the managing director and agreed by the trade union committee, in accordance with collective agreements.

Harmful factors present in the production of the organization are included in the List of harmful production factors, under the influence of which, for preventive purposes, the use of milk or other equivalent food products is recommended, approved by Order of the Ministry of Health of the Russian Federation dated March 28, 2003 No. 126. The facts of the purchase of milk by the company and its issuance to employees are confirmed by relevant documents.

However, according to the inspection, the transfer of milk to employees is recognized as a transaction subject to VAT. After evaluating the evidence presented in the case file, the courts concluded that the company issued milk to employees as part of a relationship to ensure guarantees and compensation caused by exposure to harmful factors in the performance of labor duties, and therefore is not subject to VAT.

In addition, in paragraph 12 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 30, 2014 No. 33 “On Certain Issues Arising from Arbitration Courts When Considering Cases Related to the Collection of VAT”, it is explained that operations for the free provision of envisaged labor law guarantees and compensation in kind (for example, in the presence of harmful and (or) dangerous working conditions).

Based on this, the issuance of milk to "wreckers" is not subject to VAT (Resolution of the Central Administrative District of 03/04/2016 No. A08-831 / 2015).

In this case, the "input" VAT is accepted for deduction, subject to general conditions(clause 1, clause 2, article 171, clause 1, article 172 of the Tax Code of the Russian Federation).

But in the event that the working conditions are recognized as normal based on the results of a special assessment, then the delivery of milk will be regarded as a gratuitous transfer and subject to VAT (Letter of the Ministry of Finance of the Russian Federation of 08/01/2007 No. 03-03-06/4/104).

Relations related to the calculation and payment (transfer) of insurance premiums to off-budget funds are regulated by the Federal Law of July 24, 2009 N 212-FZ "On insurance premiums in Pension Fund Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund and territorial compulsory medical insurance funds".

In Art. 9 of Federal Law N 212-FZ contains an exhaustive list of amounts not subject to insurance premiums for payers of insurance premiums making payments and other remuneration to individuals. This list also includes compensation payments. However, not all compensation payments are tax-free. Let us consider in more detail and, if possible, analyze each compensation payment, not.

So, according to paragraph 2 of part 1 of Art. 9 of Federal Law N 212-FZ, all types of insurance premiums established by the legislation of the Russian Federation, legislative acts of the constituent entities of the Russian Federation, decisions of representative bodies are not subject to insurance premiums local government compensation payments (within the limits established in accordance with the legislation of the Russian Federation) related to:

With compensation for harm caused by injury or other damage to health (clause "a", clause 2, part 1, article 9 of Federal Law N 212-FZ).

Note that payments related to compensation for harm caused by injury or other damage to health include compensation for moral harm or damage;

With free provision of living quarters, payment for living quarters and utilities, food and products, fuel or the corresponding monetary compensation (clause "b", clause 2, part 1, article 9 of Federal Law N 212-FZ);

With the payment of the cost and (or) the issuance of the due allowance in kind, as well as with the payment Money instead of this allowance (paragraphs "c", paragraph 2, part 1, article 9 of Federal Law N 212-FZ).

It should be noted that, within the meaning of this subparagraph, there is no object of taxation of insurance premiums only if in-kind allowance, as well as the payment of funds in exchange for this allowance, is provided by virtue of legislative requirements and within the limits of legislatively established norms.

So, for example, reimbursement of the cost of food rations to crew members is not subject to insurance premiums aircraft within the limits established by Decree of the Government of the Russian Federation of December 7, 2001 N 861 "On the diet of crews of sea, river and aircraft" and the Procedure for providing meals to crews of civil aviation aircraft, approved by Order of the Ministry of Transport of the Russian Federation of September 30, 2002 N 122, provided that there are no specialized public catering organizations at off-base airports (aerodromes, landing sites);

With payment for the cost of food, sports equipment, equipment, sports and dress uniforms received by athletes and employees of physical culture and sports organizations for the educational and training process and participation in sports competitions (subparagraphs "d", paragraph 2, part 1, article 9 of the Federal Law N 212-FZ);

With the dismissal of employees, with the exception of compensation for unused vacation(subclauses "d" clause 2, part 1, article 9 of the Federal Law N 212-FZ).

Based on this rule, compensation paid for unused vacation associated with the dismissal of employees is subject to insurance premiums. However, if the dismissed employee is paid severance pay in case of termination of the employment contract in connection with the liquidation of the organization, or in the event of a reduction in the number or staff of the organization's employees, or in the event of termination of the employment contract on the grounds specified in Part 3 of Art. 178 Labor Code Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation), then this allowance is not subject to insurance premiums. In other cases, that is, on grounds not provided for by Art. 178 of the Labor Code of the Russian Federation, severance pay paid to laid-off employees is subject to insurance premiums.

It should be noted that if the dismissal of an employee was declared illegal by the court and he was reinstated in his previous position, then the amounts paid earlier in connection with the dismissal for the period of employment cannot be further considered as compensation payments related to the dismissal, which means that and there are no grounds for exempting them from taxation of insurance premiums;

With reimbursement for vocational training, retraining and advanced training of employees (subparagraphs "e" of paragraph 2 of part 1 of article 9 of the Federal Law N 212-FZ).

With regard to this norm, it can be said that if, for example, employees who successfully study at correspondence courses in state-accredited educational institutions higher vocational education, 1 time in the academic year, travel to the location of the corresponding educational institution and vice versa, this payment is not subject to insurance premiums. At the same time, payment to an employee for study leave in the amount of average earnings is subject to insurance premiums in accordance with the generally established procedure;

With the expenses of an individual in connection with the performance of work, the provision of services under civil law contracts (clauses "g", clause 2, part 1, article 9 of Federal Law N 212-FZ).

Note that the compensation of the costs of an individual, aimed at repaying expenses (documented), for example, under a work contract, where the work performed was performed by him in the interests of the customer of the work, cannot be considered as payment for the work itself. This is included in the paragraph above. In such circumstances, payments aimed at compensating expenses (in particular, for travel, accommodation and other expenses in the places of work) are not subject to insurance premiums. Therefore, from the total amount of payments under the contract, it is necessary to exclude the actually incurred expenses (confirmed by supporting documents - hotel bills, copies of railway or air tickets, etc.) for moving and living at the place of work under this contract, if this contract provides for payment of the mentioned costs . The exception is per diem, which is paid only if there is labor relations;

With the employment of employees dismissed in connection with the implementation of measures to reduce the number or staff, reorganization or liquidation of the organization, in connection with the termination by individuals of their activities as individual entrepreneurs, the termination of powers by notaries engaged in private practice, and the termination of the status of a lawyer, as well as in connection with the termination of activities by other individuals whose professional activity subject to federal law state registration and (or) licensing (clauses "h", clause 2, part 1, article 9 of Federal Law N 212-FZ).

In relation to this norm, we can say that compensation payments that are not subject to insurance premiums are recognized:

payment of severance pay in the amount of average monthly earnings, in case of liquidation of the organization, reduction in the number or staff of the organization's employees;

payments of average monthly earnings for the period of employment, for a period not exceeding two months from the date of dismissal (including severance pay), upon liquidation of the organization, reduction in the number or staff of the organization's employees;

payments made in exceptional cases - in the amount of the average monthly earnings retained by the dismissed employee for the third month from the date of dismissal by decision of the public employment service;

payments to the head or members of the collegiate executive body organizations, in case of termination of the employment contract with them, before the expiration of its validity;

With the performance of labor duties by an individual, including in connection with moving to work in another locality, with the exception of (paragraphs "and" paragraph 2 of part 1 of article 9 of Federal Law N 212-FZ):

payments in monetary form for work with difficult, harmful and (or) dangerous working conditions, except for compensation payments in an amount equivalent to the cost of milk or other equivalent food products;

payments in foreign currency instead of daily allowances made in accordance with the legislation of the Russian Federation by Russian shipping companies to crew members of ships of foreign navigation, as well as payments in foreign currency to the personnel of the crews of Russian aircraft operating international flights.

From this subparagraph it follows that payments in cash for work with difficult, harmful and (or) dangerous working conditions, except for compensation payments in an amount equivalent to the cost of milk or other equivalent food products, are subject to insurance premiums. Insurance contributions are also subject to payments in foreign currency instead of daily allowances made in accordance with the legislation of the Russian Federation by Russian shipping companies to crew members of ships of foreign navigation, and payments made in foreign currency to the personnel of the crews of Russian aircraft operating international flights.

The following compensation payments are also subject to insurance premiums:

Produced to reimburse the employee's expenses associated with hiring housing in connection with moving to work in another locality or in cases where the organization, on its own initiative, pays for rented housing or accommodation in a hostel for a nonresident employee.

Carried out by the organization in the form of payment for air tickets for employees or in the form of reimbursement to employees of the cost of travel from the place of residence to the place of assembly for sending to the rotational camp or from the place of residence to the facility and back.

Dear friends, as you should be aware, workers employed in jobs with harmful and dangerous working conditions are entitled to a number of benefits and compensations, including milk distribution. Therefore, in today's article, I will consider issues of taxation of the issuance of milk for harmfulness, including:

- Are incomes in the form of free milk given to employees subject to personal income tax?

- Is it possible to include in the composition of income tax expenses, the costs of issuing milk to an employee?

- Is it necessary to charge insurance premiums on the cost of free milk given to employees?

As you should be aware, workers employed in jobs with harmful and dangerous working conditions are entitled to a number of benefits and compensations, including milk distribution.

So Art. 222 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation), it is established that in jobs with harmful working conditions, workers are given milk or other equivalent food products free of charge according to established standards. The issuance of milk or other equivalent food products to employees according to the established norms, upon written applications of employees, may be replaced by a compensation payment in an amount equivalent to the cost of milk or other equivalent food products, if this is provided for by the collective agreement and (or) labor contract.

At works with especially harmful working conditions, therapeutic and preventive nutrition is provided free of charge according to established standards.

The norms and conditions for the free distribution of milk or other equivalent food products, therapeutic and preventive nutrition, the procedure for making the compensation payment provided for in part one of this article are established in the manner determined by the Government of the Russian Federation, taking into account the opinion of the Russian tripartite commission for the regulation of social and labor relations.

“Norms and conditions for the free distribution of milk or other equivalent food products to employees employed in hazardous working conditions that can be given to employees instead of milk” are established in Appendix No. 1 to the Order of the Ministry of Health and Social Development of the Russian Federation dated February 16, 2009 No. 45n.

In the employment contract, it is necessary to describe the working conditions at the workplace, the list of existing harmful (dangerous) factors determined by the results of the certification, and the list of benefits provided in connection with this (part 2 of article 57 of the Labor Code of the Russian Federation), including the appointment of milk. This is stated, for example, in the letter of the Ministry of Labor of Russia dated January 23, 1996 No. 38-11, which also provides recommendations on taking into account the obligations of the employer on conditions and labor protection in labor and collective agreements. In accordance with this letter, it is recommended to register the norms for issuing milk in an annex to the collective agreement.

Taxation of personal income tax on income in the form of free milk given to employees

According to paragraph 3 of Art. 217 of the Tax Code of the Russian Federation (hereinafter - the Tax Code of the Russian Federation) are not subject to taxation (exempted from taxation) all types of compensation payments established by the current legislation of the Russian Federation, legislative acts of the constituent entities of the Russian Federation, decisions of representative bodies of local self-government (within the limits established in accordance with the legislation Russian Federation) associated with:

- compensation for harm caused by injury or other damage to health;

- free provision of residential premises and utilities, fuel or appropriate monetary compensation;

- payment of the cost and (or) the issuance of the due allowance in kind, as well as with the payment of funds in return for this allowance;

- payment for the cost of food, sports equipment, equipment, sports and dress uniforms received by athletes and employees of physical culture and sports organizations for the educational and training process and participation in sports competitions, as well as sports judges for participating in sports competitions;

- dismissal of employees, with the exception of compensation for unused vacation;

- the death of military personnel or civil servants in the performance of their official duties;

reimbursement of other expenses, including expenses for professional development of employees;

— fulfillment by the taxpayer of labor duties (including moving to work in another area and reimbursement of travel expenses).

Thus, free delivery of milk, within the established norms, to employees employed in work with harmful and dangerous working conditions is not subject to personal income tax. However, there is no such “tax benefit” for personal income tax for employees who are not employed in work with harmful and dangerous working conditions.

The legitimacy of attributing to income tax expenses the costs of issuing milk to an employee

In accordance with paragraph 4 of Art. 255 of the Tax Code of the Russian Federation, labor costs for the purpose of calculating and paying income tax include the cost of utilities provided to employees free of charge in accordance with the legislation of the Russian Federation, food and products provided to employees of the taxpayer in accordance with the procedure for free housing established by the legislation of the Russian Federation (the amount of cash compensation for the failure to provide free housing, utilities and other similar services).

Thus, on the basis of paragraph 4 of Art. 255 of the Tax Code of the Russian Federation, the costs of issuing milk within the established norms are included in income tax expenses as labor costs. Expenses for the distribution of milk to employees who are not employed in work with harmful and dangerous working conditions cannot be attributed to income tax expenses in accordance with this rule.

At the same time, according to Art. 255 of the Tax Code of the Russian Federation, the taxpayer's labor costs include any accruals to employees in cash and (or) in kind, incentive accruals and allowances, compensation accruals related to the mode of work or working conditions, bonuses and one-time incentive accruals, expenses associated with the maintenance of these employees provided for by the norms of the legislation of the Russian Federation, labor agreements (contracts) and (or) collective agreements.

On the basis of this rule, if the employer’s obligation to provide milk is fixed by labor agreements (contracts) and (or) collective agreements of the company, these costs can be attributed to labor costs.

At the same time, it is worth noting the position of the regulatory authorities (letters of the Ministry of Finance of the Russian Federation of August 27, 2009 No. 03-03-06 / 1/550, of August 1, 2007 No. 03-03-06 / 4/104, -06-01/192, letter of the Federal Tax Service of Russia for Moscow dated December 29, 2010 No. 16-15 / 137682@), who believe that the costs of dispensing milk to employees not employed in work with harmful and dangerous working conditions and (or) whose jobs are not certified, are not included in income tax expenses.

Judicial practice mainly considers the question of the legality of including in income tax expenses the taxpayer's expenses for the delivery of milk to employees working in hazardous production, but whose workplaces were not certified by the organization. In this case, the courts take the side of the taxpayer (Resolutions of the FAS UO of January 18, 2011 No. F09-11222 / 10-C3 in case No. A60-13303 / 2010-C8, of August 23, 2010 No. F09-6633 / 10-C3 in the case No. A60-60200 / 2009-C8, dated 07.27.2011 No. F09-4144 / 11 in case No. A60-31200 / 2010, Resolution of the FAS SZO dated 03.15.2011 in case No. A42-2321 / 2009, Resolution of the FAS VVO dated 03.10. 2008 in case No. A31-8961/2006-15).

With regard to the position of the regulatory authorities that the taxpayer's costs for the issuance of milk to employees not employed in work with harmful and dangerous working conditions and (or) whose jobs are not certified in the prescribed manner, the following should be noted. The Ministry of Finance and the Federal Tax Service do not consider the legitimacy of attributing the costs of the organization to the issuance of milk, if this is provided for by labor contracts (contracts) and (or) collective agreements. Thus, in relation to these expenses, if the issuance of milk is provided for by labor and (or) collective agreements, "negative" positions were not expressed by the regulatory authorities. At the same time, in this case, these costs of the organization directly correspond to the provisions of Art. 255 of the Tax Code of the Russian Federation, in connection with which we believe that these expenses are legitimate.

Accrual of insurance premiums on the cost of free milk given to employees

According to paragraph 1 of Art. 7 of the Federal Law of July 24, 2009 No. 212-FZ “On insurance contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund and territorial compulsory medical insurance funds” (hereinafter - Law No. 212-FZ) subject to taxation insurance premiums for payers of insurance premiums specified in paragraphs. "a" and "b" p. 1 h. 1 art. 5 of Law No. 212-FZ, payments and other remuneration accrued by payers of insurance premiums in favor of individuals within the framework of labor relations and civil law contracts, the subject of which is the performance of work, the provision of services (with the exception of remuneration paid to persons specified in clause 2, part 1, article 5 of Law No. 212-FZ), as well as under copyright order agreements, agreements on the alienation of the exclusive right to works of science , literature, art, publishing license agreements, license agreements on granting the right to use a work of science, literature, art. The object of taxation of insurance premiums for payers of insurance premiums specified in paragraphs. "a", paragraph 1, part 1, art. 5 of Law No. 212-FZ, payments and other remuneration accrued in favor of individuals subject to compulsory social insurance in accordance with federal laws on specific types of compulsory social insurance are also recognized.

In accordance with paragraphs. "and" p. 2 h. 1 art. 9 of Law No. 212-FZ for the cost of milk given to employees, and compensation payments in an amount equivalent to the cost of milk or other equivalent food products, insurance premiums are not charged.

Thus, the cost of milk issued to employees employed in work with harmful and dangerous working conditions does not accrue insurance premiums. On the cost of milk issued by workers who are not employed in work with harmful and dangerous working conditions, it is necessary to charge insurance premiums.

Employees engaged in work with harmful working conditions are given milk or other equivalent food products. Consider the problematic issues of taxation for these operations.

At work with harmful working conditions, employees are given milk or other equivalent food products free of charge according to established norms (Article 222 of the Labor Code of the Russian Federation).

The norms and conditions for the free distribution of milk or other equivalent food products, as well as therapeutic and preventive nutrition, are established in the manner determined by the Government of the Russian Federation.

Decree of the Government of the Russian Federation of March 13, 2008 No. 168 “On the procedure for determining the norms and conditions for the free distribution of therapeutic and preventive nutrition, milk or other equivalent food products and the implementation of a compensation payment in an amount equivalent to the cost of milk or other equivalent food products”, provides, that workers engaged in work with harmful working conditions are given free milk or other equivalent food products in accordance with the list of harmful production factors, under the influence of which, for preventive purposes, the use of milk or other equivalent food products is recommended.

For workers employed in work with harmful working conditions, the issuance of milk or other equivalent food products may be replaced, upon their written applications, with a compensation payment in an amount equivalent to the cost of milk or other equivalent food products. Such a replacement must be provided for by the collective agreement and (or) the employment contract.

The very procedure for making a compensation payment in an amount equivalent to the cost of milk or other equivalent food products (hereinafter referred to as the procedure).

The rate of free milk distribution is 0.5 liters per shift, regardless of the duration of the shift (clause 4 of the rules and conditions for dispensing milk).

According to paragraph 13 of the Norms and conditions for the distribution of milk in the event of ensuring safe (permissible) working conditions, confirmed by the results of attestation of workplaces and the conclusion of the state examination of working conditions, the employer decides to stop the free distribution of milk or other equivalent food products, taking into account the opinion of the primary trade union organization or other representative body of workers.

Personal income tax when issuing milk to employees

As a general rule, all types of compensation payments established by the current legislation of the Russian Federation within the limits of the norms are not subject to personal income tax (paragraph 2, clause 3, article 217 of the Tax Code of the Russian Federation).

In addition, according to the financial department, income in the form of milk or other equivalent food products issued to employees whose working conditions are recognized as acceptable based on the results of certification are subject to personal income tax (Letter of the Ministry of Finance of the Russian Federation dated March 31, 2014 No. 03-03-R3 / 13985 ).

However, as evidenced by judicial practice, the cost of milk issued to employees for work in harmful conditions is not subject to personal income tax even in the absence of attestation of workplaces. As the courts note, the basis for issuing milk to an employee is his actual employment at work under the influence of production factors specified in Appendix No. 3 to the Order of the Ministry of Health and Social Development of the Russian Federation of February 16, 2009 No. 45n. Therefore, certification is not a condition for providing compensation for harmful working conditions. It depends on the presence of harmful production factors in the workplace, under the influence of which the use of milk is recommended for preventive purposes. Therefore, the cost of the issued milk does not generate income for the employee subject to personal income tax (Resolutions of the Federal Antimonopoly Service of the West Siberian District of July 10, 2014 No. A27-16004 / 2013, of the Ural District of March 13, 2012 No. F09-1132 / 12).

Expenses in the form of the cost of free milk given to employees

For the purposes of calculating income tax, compensation accruals related to working conditions, provided for by the norms of legislation, labor (collective) agreements, the company may include in labor costs (clause 4, article 255 of the Tax Code of the Russian Federation).

In this situation, the company's expenses for the free distribution of milk to employees cannot be attributed to compensation payments, since working conditions are not recognized as harmful, in which the levels of exposure to harmful production factors do not exceed the established standards (Article 209 of the Labor Code of the Russian Federation). In such situations, according to the regulatory authorities, the company can take into account the cost of milk given to employees free of charge as part of labor costs, as a payment in kind (Letters of the Federal Tax Service of the Russian Federation dated 08.05.2014 No. Ministry of Finance of the Russian Federation dated March 31, 2014 No. 03-03-Р3 / 13985).

Insurance premiums in the absence of attestation of workplaces

All types of compensation payments established by the legislation of the Russian Federation (within the limits established in accordance with the legislation of the Russian Federation) related to the performance of labor duties by an individual (clauses "and" clause 2, part 1, article 9 of the Federal Law dated July 24, 2009 No. 212-FZ “On insurance premiums to the Pension Fund of the Russian Federation, FSS of the Russian Federation, FFOMS”).

Example #1

During the audit of the FSS of the Russian Federation, it was concluded that the base for calculating insurance premiums for the amount of milk payment was understated, since the working conditions of workers were not recognized as harmful as a result of a special assessment of working conditions (until 01/01/2014 - attestation of workplaces).

However, the court took the side of the company, based on the following arguments.

The basis for the issuance of milk or therapeutic and preventive nutrition to an employee is his actual employment in work related to harmful production factors.

The above norms do not provide for attestation as a condition for granting compensation.

That is, the certification and recognition of working conditions at individual workplaces as acceptable for chemical, biological and physical factors does not relieve the employer from the obligation to provide compensation to the employee on the days of actual employment at work related to the presence of harmful production factors at the workplace.

And during the audited period, the company was in force for 2012 - 2014, which provides for the obligation of the employer to issue milk to employees employed at work with harmful working conditions.

The general director of the company, in agreement with the trade union committee, approved a list of professions and positions with harmful working conditions, which are provided with free milk (with a milk dispensing rate of 0.5 liters per shift).

In accordance with paragraph 13 of the Order of the Ministry of Health and Social Development of the Russian Federation of February 16, 2009 No. 45n, the basis for the employer to decide to stop the free distribution of milk or other equivalent food products to employees is:

availability of the results of a special assessment of working conditions;

Thus, the free distribution of milk or other equivalent products is not made dependent on the results of attestation of workplaces (Decision of the Arbitration Court of the Voronezh Region dated July 5, 2016 No. A14-1610 / 2016).

A similar legal position is contained in the Decrees of the Arbitration Court of the Novgorod Region dated August 08, 2016 No. A44-3876 / 2015, the Seventeenth Arbitration Court of Appeal dated November 26, 2015 No. A71-6244 / 2015, the Arbitration Court of the West Siberian District of June 18, 2015. No. А27-8720/2014 and No. А27-7912/204 dated 06.11.2014, AS of the Volga-Vyatka District dated 10.09.2014 No. А79-8337/2013, Federal Antimonopoly Service of the Urals District dated 04.25.2014 No. Ф09- 2274/2014.

Working conditions are recognized as safe

However, if the conclusion attestation commission, submitted attestation cards and protocols for assessing working conditions, working conditions and workplaces, are recognized as safe - optimal or acceptable, cash payments to employees in an amount equivalent to the cost of milk are subject to insurance premiums.

According to Art. 219 of the Labor Code of the Russian Federation in the case of ensuring safe working conditions at workplaces, confirmed by the results of attestation of workplaces, compensation to employees is not established. Therefore, if the actual employment of employees in harmful conditions and the impact on them of harmful factors provided for in the List is not confirmed, the provision of milk to employees and the payment of compensation in return for its cost is not of a compensatory nature (Resolution of the Central Administrative District of the Central District of July 28, 2016 No. A68-7691 / 2015) . The cost of milk given to employees in excess of the norms established by law is also subject to insurance premiums.

Calculation of VAT on the cost of milk transferred to employees

If a company issues milk or other equivalent food products to employees working in hazardous working conditions free of charge according to established standards, and the costs of purchasing this milk or other equivalent food products are included in the costs of production and sale of products, then VAT does not arise (Letter Federal Tax Service of the Russian Federation for Moscow dated November 27, 2013 No. 16-15 / 123500).

However, in a number of cases (for example, in the absence of attestation of workplaces), the tax authorities try to bring the issuance of milk to employees under the object of VAT. Recall that for the purposes of calculating VAT, the gratuitous transfer of ownership of goods, the results of work performed, the provision of services is recognized as the sale of goods, works, services (clause 1, article 39, clause 1, clause 1, article 146 of the Tax Code of the Russian Federation).

As court practice shows, regardless of the certification of workplaces, the issuance of milk to "wreckers" does not form an object of VAT. So, if the costs of providing milk to employees employed in jobs with harmful working conditions are documented and, in accordance with Article 252 of the Tax Code of the Russian Federation, relate to costs associated with production and sales, then the distribution of milk to company employees cannot be subject to VAT (Decision of the Arbitration Court of the Belgorod Region dated June 24, 2015 No. А08-831/2015).

Example #2

In addition, in paragraph 12 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 30, 2014 No. 33 “On Certain Issues Arising from Arbitration Courts When Considering Cases Related to the Collection of VAT”, it is explained that operations for the free provision of guarantees and in-kind compensation provided for by labor legislation (for example, in the presence of harmful and (or) dangerous working conditions).

Based on this, the issuance of milk to "wreckers" is not subject to VAT (Resolution of the Central Administrative District of 03/04/2016 No. A08-831 / 2015).

In this case, the "input" VAT is deductible subject to the general conditions (subclause 1, clause 2, article 171, clause 1, article 172 of the Tax Code of the Russian Federation).