Moving to another city is a common situation. But finding a job in a new place of residence is much more difficult. How does the dismissal of an employee who moves to live in another area occur?
Dismissal due to moving to another city occurs on application. That is, the employee must write a statement addressed to the manager with a request to dismiss him, since he is changing his place of residence.
Such grounds for termination labor relations between an employee and an employer is possible under the Labor Code of the Russian Federation. There are 2 reasons for dismissal:
- upon moving to a new place of residence of the employee himself;
- in connection with the transfer of a spouse to a new place of work in another region.
Both grounds must be specified in the application. After writing it, the employee is given a bypass sheet, which he must sign within two weeks.
Dismissal due to the fact that the employee or his family is forced to change their place of residence occurs on a general basis, with mandatory subsequent service. But if the employee’s spouse serves in the state or law enforcement agencies of the Russian Federation, and he is urgently transferred to a new duty station, then he can resign without working off. But to do this, you must present the employer with a certificate from your spouse’s place of service.
In Art. 84.1 of the Labor Code of the Russian Federation states that the work book must indicate exactly the same reason for dismissal as stated in the application. But a specific reason for dismissal due to relocation was not specified. Thus, the employee quits on his own initiative, but due to the fact that he moves to live in another city or region.
That is, moving to another city is a legal basis for dismissal, and an urgent move is grounds for dismissal without service. At the same time, not only the employee, but also the employer himself can change his place of residence and location.
Each entity has its own legal address - the address at which it is registered and at which it receives official correspondence. When you change this address, changes are made to the constituent documents, and you will also have to move to another city. If this is the case, then the employer has the right to invite his employees to move with him. When moving to another city, all employees who gave their consent will be employed.
A relocation offer must be issued to each employee. It must be in writing and issued against signature. If the employee agrees to the move, he gives his written consent. If he does not agree, then he also gives a written negative answer. This is grounds for his dismissal.
The procedure for dismissing an employee is as follows:
- he writes a statement if the move is his initiative or a forced necessity;
- gives a written negative response to the employer’s proposal to change his place of residence and work;
- working for 14 days, unless there is another agreement with the employer or the move is not urgent (for which there is evidence);
- familiarization with the dismissal order against signature. Separately, you need to check the specified reason for termination of the employment relationship and the date;
- signing by the employee of the bypass sheet;
- getting all due payments on the last working day;
- receiving a work book;
- receiving a certificate in hand in form 2-NDFL and in form 4-FSS.
Dismissal without service due to relocation
If the reason for the termination of the employment relationship is the relocation of the employee, then this refers to dismissal on his own initiative. In Art. 80 of the Labor Code of the Russian Federation states that dismissal on this basis implies a mandatory 2-week work period.
In Art. 80 of the Labor Code of the Russian Federation also states that resigning without service, according to at will, possible for the following reasons:
- having received the employer's consent;
- if it is impossible to continue working due to admission to a university or retirement due to old age;
- receiving sick leave.
The employer's consent must be obtained in writing. As a rule, an agreement is concluded between the parties, which stipulates that the employee can quit without 2 weeks of work. If an employee can no longer continue working because he is retiring, or because he is starting full-time studies at a university, he must indicate this in his resignation letter.
Moving to another area is not a legal reason for dismissal without service. But you can reach an agreement with your manager and explain to him the reason for leaving. As practice shows, employers accommodate such employees halfway and allow them to resign without serving the required period.
If the dismissal is related to the transfer of a spouse to a new duty station, then this is exactly what needs to be indicated in the application. The application must be accompanied by a certificate from the spouse's place of service.
Payment for relocation upon dismissal
If an employee quits because he himself decided to move to live in another area, then this is his own initiative, and he is not entitled to any compensation. If the move was initiated by the employer, and the employee agreed to be transferred to another location, then the employer must pay for the travel. In Art. 165 of the Labor Code of the Russian Federation talks about all guarantees and compensations that must be paid and provided to the employee, including in connection with the move.
In Art. 169 of the Labor Code of the Russian Federation states that when an employee moves to another area together with the employer, the latter must compensate for:
- expenses for relocation of the employee himself, as well as all members of his family;
- expenses for transporting property. An exception is the provision of transport for transportation by the employer himself;
- expenses for settling in a new area.
A specific amount is not specified in the Labor Code of the Russian Federation; compensation is made by agreement of the parties - the employee and the employer. But if an employee works at an enterprise that is financed from the federal budget, then the specific amount of moving expenses, which is subject to compensation from the employer, is prescribed in Decree of the Government of the Russian Federation of April 2, 2003 No. 187.
In paragraphs “a” clause 1 of this Resolution states that:
- Travel expenses to a new place of work for the employee and his family members are compensated in the amount of actual expenses confirmed by travel documents. In this case, a limit is set:
- if the transfer is carried out by train, then it is not higher than the cost of tickets in a compartment carriage of a fast branded train;
- If by water transport- in the cabin of group V of a sea vessel of regular transport lines and lines with comprehensive service passengers, in a category II cabin on a river vessel of all lines of communication, in a category I cabin on a ferry vessel;
- by air - in the economy class cabin;
- by car, but not by taxi.
- If the travel tickets have not been saved, then compensation occurs as follows:
- By railway- cost of a reserved seat;
- by water - in the cabin of group X of a sea vessel of regular transport lines and lines with comprehensive passenger services, in the cabin of category III of a river vessel of all lines of communication;
- by road - by public bus.
Other expenses are reimbursed in accordance with paragraphs “b” and paragraphs. “c” clause 1 of Resolution 187.
The employee will be required to return the amount of compensation for relocation in the following cases:- he did not begin his direct duties within the prescribed period;
- resigned at his own request before the end of the employment contract that was concluded with him in the new location;
- committed a guilty act, the disciplinary punishment for which is dismissal.
However, these points must be explicitly stated in the new employment contract.
If an employee does not show up for work or refuses to start work for a valid reason, he is obliged to return the funds paid to him minus the expenses incurred by him for his relocation and the relocation of his family members, as well as the costs of transporting property.
Application for resignation due to relocation
In order for dismissal for such a reason to take place in compliance with all norms of current legislation, you need to write the application correctly. It is this that is the basis for issuing an order to terminate the employment relationship with a specific person.
The application must indicate the following:
- In the upper right corner, create a document header:
- Full name and position of the head of the employer who is authorized to accept such applications for consideration;
- the name of the legal entity or individual entrepreneur who acts as an employer;
- position and full name of the applicant. If the company is large, then you also need to specify the name structural unit;
- contact information applicant - phone number and valid e-mail address;
- then you need to specify the name of the document. "Statement" is written in the middle of the sheet;
- then comes the "body" of the document. Here the applicant states:
- a request to fire him;
- reason for dismissal - “in connection with moving to a new place of residence in another city/other locality”;
- the date on which the applicant wishes to resign. Here you need to write correctly so that there is no confusion. If you indicate “I ask you to fire me on September 25, 2018,” then the last working day will be September 24, 2018. If he indicates “I ask you to fire me as of September 25, 2018,” then September 25, 2018 will be his last working day;
- the date of the application;
- the signature of the applicant, as well as a transcript.
The resignation letter must be completed as follows:
- in writing;
- on a sheet of A4 format or on company letterhead. If the application is completed in the latter version, then there is no need to indicate information about the enterprise in the header of the application. This happens because the letterhead, as a rule, already contains everything necessary information about the employer;
- it must be sent to the employer.
You can do this in several ways:
- upon a personal visit to the secretariat of the head of the enterprise. In this case, it is necessary to make 2 copies of the document. On one of them, the secretary will put the number of the incoming document and the date the application was accepted for consideration;
- send it by mail. In this case, the application must be sent by registered mail with notice. When the notice is returned to the applicant, it will bear the signature of the person who accepted the letter and the date of acceptance;
- By e-mail. This method of sending documentation is now becoming increasingly popular. But it is important that the sender has an email.
If dismissal from work is associated with the relocation/transfer of a spouse to a new duty station, then this is exactly what should be indicated in the application. To shorten the period of service, you need to attach a certificate from your spouse’s place of service.
But it’s better to do this anyway, so that later the employer can easily prove that he really notified employees about the change in working conditions. You can prepare two copies of the notice: one is given to the employee, and the second with a signature confirming receipt of the notice remains with the employer. You can separately draw up an act of familiarizing the employee with the notice. If the employee refuses to sign, then a report about this is also drawn up, and the notification itself is sent to the employee by registered mail with a list of the attachments. Offering vacant positions If an employee does not agree to work under new conditions, then the employer is obliged to offer him another job in writing (if such a job is available in the same city, for example, in a separate division).
We move with our employer to another area
The Labor Code of the Russian Federation states that dismissal on this basis implies a mandatory 2-week period of service. In Art. 80 of the Labor Code of the Russian Federation also states that you can resign without service, at your own request, on the following grounds:
- having received the employer's consent;
- if it is impossible to continue working due to admission to a university or retirement due to old age;
- receiving sick leave.
The employer's consent must be obtained in writing.
As a rule, an agreement is concluded between the parties, which stipulates that the employee can quit without 2 weeks of work. If an employee can no longer continue working because he is retiring, or because he is starting full-time studies at a university, he must indicate this in his resignation letter.
Transfer of an employee to another location
For employees – in total monthly salary at a new place of work, for members of their families - one-fourth of the employee’s benefit for each;
- wages (at the salary rate at the new workplace) for the time you are on the road, as well as for the time of getting ready for the trip and settling in (up to 6 days in total) at the new place.
It should be noted here that the legislation defines minimum payments only for organizations and enterprises that are financed from the federal budget. Overall, compensation payments are determined based on the terms of the employment contract, but cannot be lower than the minimum by law.
For commercial companies, the law does not specify any “minimum” for compensation due to the relocation of workers. When transferring employees, a reimbursement agreement must be in place.
Dismissal due to relocation
Moving to another city is a common situation. But finding a job in a new place of residence is much more difficult. How does the dismissal of an employee who moves to live in another area occur? Dismissal due to moving to another city occurs on application.
Attention
That is, the employee must write a statement addressed to the manager with a request to dismiss him, since he is changing his place of residence. Such grounds for termination of labor relations between an employee and an employer are possible under the Labor Code of the Russian Federation.
There are 2 reasons for dismissal:
- upon moving to a new place of residence of the employee himself;
- in connection with the transfer of a spouse to a new place of work in another region.
Both grounds must be specified in the application. After writing it, the employee is given a bypass sheet, which he must sign within two weeks.
Relocation of the organization to another city, dismissal
In the application, the employee states:
- Full name, position and department if necessary;
- date of dismissal and date of writing;
- the possibility and impossibility of working out the presented time.
With the approval of management, dismissal is possible without work. Here the employer puts his signature, the basis is written down in the work book and compensation is paid.
At my husband's place of work, dismissal of such a plan is possible. This point is spelled out in the Labor Code. A special feature here is the absence of the obligation to work for two weeks.
To do this, you need to provide a confirming document about the transfer of your spouse to another place. This type of certificate is issued by a military unit. This is the basis for the immediate dismissal of an employee. The wife is entitled to a specific payment.
Dismissal due to the fact that the employee or his family is forced to change their place of residence occurs on a general basis, with mandatory subsequent service. But if the employee’s spouse serves in the state or law enforcement agencies of the Russian Federation, and he is urgently transferred to a new duty station, then he can resign without working off.
But to do this, you must present the employer with a certificate from your spouse’s place of service. In Art. 84.1 of the Labor Code of the Russian Federation states that the work book must indicate exactly the same reason for dismissal as stated in the application.
Info
But a specific reason for dismissal due to relocation was not specified. Thus, the employee quits on his own initiative, but due to the fact that he moves to live in another city or region.
That is, moving to another city is a legal basis for dismissal, and an urgent move is a basis for dismissal without working off.
Procedure for dismissal due to relocation
At the same time, not only the employee, but also the employer himself can change his place of residence and location. Each legal entity has its own legal address - the address at which it is registered and at which it receives official correspondence.
When you change this address, changes are made to the constituent documents, and you will also have to move to another city. If this is the case, then the employer has the right to invite his employees to move with him.
When moving to another city, all employees who gave their consent will be employed. A relocation offer must be issued to each employee. It must be in writing and issued against signature. If the employee agrees to the move, he gives his written consent.
If he does not agree, then he also gives a written negative answer. This is grounds for his dismissal.
The Labor Code of the Russian Federation says about all guarantees and compensations that must be paid and provided to the employee, including in connection with the move. In Art. 169 of the Labor Code of the Russian Federation states that when an employee moves to another area together with the employer, the latter must compensate for:
- expenses for relocation of the employee himself, as well as all members of his family;
- expenses for transporting property.
An exception is the provision by the employer of transport for transportation;
- expenses for settling in a new area.
There is no specific amount in the Labor Code of the Russian Federation, compensation is made by agreement of the parties - the employee and the employer. But if an employee works at an enterprise that is financed from the federal budget, then the specific amount of moving expenses, which is subject to compensation from the employer, is prescribed in Decree of the Government of the Russian Federation of April 2, 2003 No. 187.
In paragraphs "a" p.
Relocation of an employee to another city
The company moves to another city. Painless ways to transfer employees to a new place How to change the terms of an employment contract without asking the employee In what document to justify organizational changes What vacancies to offer to a replacement employee One of the ways to reduce personnel costs, which allows you to maintain a staff of valuable employees, is to move the company to another, smaller expensive city. As a rule, this is formalized by the transfer of workers together with the employer to another location (Art.
72.1 of the Labor Code of the Russian Federation). In practice, such a translation procedure is complex. Firstly, it is practically not regulated by the Labor Code: it is unclear whether it is necessary to notify employees about such a transfer, if necessary, then in what way and within what time frame, etc.
d. Secondly, it will not be possible to transfer employees without their written consent (Part 1 of Article 72.1 of the Labor Code of the Russian Federation).
Almost every second person wonders how to quit a job without working off. One of the grounds for dismissal without work is relocation. Therefore, this aspect is worth considering in more detail in order to correctly resign in a short time and begin new job. General information In accordance with the Labor Code, the employment of a citizen is carried out in a certain order. That is, an order is issued, it is taken away employment history for recording and the employee begins to perform his duties on the basis of an employment contract. As soon as a citizen decides to terminate the employment relationship or the employer does so, the entire dismissal procedure must be properly formalized. If this is a fixed-term employment contract, then the person is automatically fired upon expiration of the document.
Relocation of an employee to another city
For existing employees, this is a painful decision. Not everyone will be able or want to change their place of residence. Problem condition: The large online store Pokupai.ru is expanding rapidly.
Over the year, the number of employees has more than tripled, both the wage fund and office costs have increased significantly. Moving the organization to another city; layoffs. Currently, the location of the main offices of companies is not as tied to one place as before, and can easily change if it turns out that in another region the accommodation conditions are better, the rent is lower, and permanent partners are not so far away.
Naturally, moving an organization or one of its departments is a laborious and troublesome business, but as it turns out, when moving, you need to think not only about the safety of documentation, but also about other possible problems.
Relocation of an employee to another city of the Russian Labor Code
The basis for dismissal of an employee can only be his refusal to transfer in connection with the relocation of the employer to the locality. “Different locality” refers to the relocation of the organization to another locality.
Good afternoon, tell us how the procedure for dismissal occurs when the enterprise moves to another city, an order to move According to article 72 Labor Code RF (hereinafter referred to as TC), change determined by the parties terms of the employment contract. including transfer to another job. permitted only by AGREEMENT OF THE PARTIES to the employment contract. except for cases provided for by this Code. An agreement to change the terms of an employment contract determined by the parties is concluded in writing.
New edition of Art. 169 Labor Code of the Russian Federation
When an employee moves, by prior agreement with the employer, to work in another area, the employer is obliged to compensate the employee for:
expenses for moving the employee, members of his family and transporting property (except for cases where the employer provides the employee with appropriate means of transportation);
expenses for settling into a new place of residence.
The procedure and amount of reimbursement of expenses when moving to work in another area for employees who have entered into an employment contract to work in federal government agencies, employees of state extra-budgetary funds Russian Federation, federal government agencies are determined by regulatory legal acts Government of the Russian Federation.
The procedure and amount of reimbursement of expenses when moving to work in another area for employees who have entered into an employment contract to work in government bodies of the constituent entities of the Russian Federation, employees of territorial compulsory health insurance funds or state institutions of the constituent entities of the Russian Federation, persons working in bodies local government, employees municipal institutions are determined accordingly by regulatory legal acts of bodies state power subjects of the Russian Federation, regulatory legal acts of local governments.
The procedure and amount of reimbursement of expenses when moving to work in another area for employees of other employers are determined by a collective agreement or local normative act or by agreement of the parties to the employment contract, unless otherwise established by this Code, other federal laws and other regulatory legal acts of the Russian Federation.
Commentary on Article 169 of the Labor Code of the Russian Federation
Article 169 of the Labor Code of the Russian Federation obliges the employer, in the event of an employee moving to work in another area, to reimburse him for a number of expenses.
Another comment on Art. 169 Labor Code of the Russian Federation
1. Expenses incurred when moving to another area are compensated to the employee if there was a preliminary agreement on the move between the employee and the employer. In this case, the employer is obliged to reimburse the employee for expenses incurred in connection with the move. The procedure for reimbursement of expenses and the amount to be reimbursed are determined by agreement of the parties to the employment contract, minimum sizes no compensation has been established.
2. Article 169 of the Labor Code of the Russian Federation provides for compensation to the employee in connection with the move of two types of expenses: the actual move and the arrangement in the new place. Because Art. 169 of the Labor Code of the Russian Federation does not mention the payment of a one-time benefit to the employee and members of his family, as well as wages for the days of preparation for the trip and settling in a new place; these amounts are reimbursed only by agreement of the parties to the employment contract.
3. Reimbursement for moving expenses may be related to:
With the transfer of an employee to work in another area;
With employment in an organization located in another area;
With the transfer of the organization with which the employee has an employment contract to another location.
4. The amounts of these types of compensation, as well as other types of compensation and their amounts are determined by agreement of the parties to the employment contract.
5. The amount of reimbursement of expenses when moving to another area for employees of organizations financed from the federal budget is established by Decree of the Government of the Russian Federation of April 2, 2003 N 187 (SZ RF. 2003. N 14. Art. 1285). They are compensated:
Moving expenses;
Expenses for transporting property;
Construction costs.
6. Moving expenses consist of travel expenses for the employee himself, his family members, and luggage. These expenses are reimbursed if the employer does not provide the employee with transportation and (or) luggage transportation.
Members of the employee's family whose travel expenses are compensated include the husband, wife, as well as children and parents of both spouses who are dependent on him and live with him.
If higher amounts of compensation are not established by agreement of the parties, the following travel costs are subject to compensation: by rail- in the compartment carriage of a fast branded train; by water transport - in the cabin of the V group of a sea vessel of regular transport lines and lines with comprehensive passenger services, in the cabin of the II category of a river vessel of all lines of communication, in the cabin of the I category of a ferry vessel; by air - in the cabin economy class; by car- in a vehicle common use(except taxi).
In the absence of travel documents confirming the expenses incurred, reimbursement is made in the amount of the minimum cost of travel: by rail - in a reserved seat carriage of a passenger train; by water transport - in the cabin of group X of a sea vessel of regular transport lines and lines with comprehensive passenger services, in the cabin of category III of a river vessel of all lines of communication; by road - in a public bus.
Baggage transportation is paid at the rate of 500 kg for the employee himself and 150 kg for each moving family member, provided that luggage is transported by rail, water and road transport (public). In the absence of these types of transport, the costs of transporting this property by air from the nearest railway station to the place of work or from the nearest sea or river port open for navigation at a given time may be paid. By agreement of the parties, the actual costs of transporting property in larger quantities may be paid.
The cost of travel for family members and transportation of their property is paid if they move to the employee’s new place of residence before the expiration of one year from the date of his move.
Travel and baggage expenses are not reimbursed if the employer provides the employee with appropriate means of transportation.
7. Expenses for arrangement at a new place of residence are reimbursed based on official salary employee at his new place of work for the employee himself and a quarter of the specified amount for each member of his family moving with him.
8. Article 169 of the Labor Code of the Russian Federation does not indicate the employer’s obligation to pay the employee daily allowances for the time he is on the road, therefore these amounts are paid only by agreement of the parties. In organizations financed from the federal budget, their amount is 100 rubles. for each day of travel. Daily allowances are paid only to the employee himself.
9. The employee is obliged to return in full the funds paid to him in connection with moving to work in another area in the following cases:
a) if he did not show up for work or refused to start work without a good reason;
b) if he is before the end of the period of work stipulated during the transfer, assignment or hiring, and in the absence certain period- before the expiration of one year of work, he resigned of his own free will without a valid reason or was dismissed for guilty actions, which, in accordance with the law, were the basis for termination of the employment contract.
An employee who does not show up for work or refuses to start work for a valid reason is obliged to return the funds paid to him minus travel expenses already incurred.
10. Graduates are also entitled to the above compensations educational institutions middle and higher vocational education who studied on the basis of an agreement on targeted contract training of specialists, who go to work in accordance with the concluded contract outside their place of permanent residence, as well as members of their families (see Decree of the Government of the Russian Federation of September 19, 1995 (SZ RF. 1995. N 39 Art. 3777)).
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- Chapter 25 of the Labor Code of the Russian Federation. Guarantees and compensations for employees when they perform state or public duties ›
If a company transfers an employee to work in another city and at the same time provides him with financial support when moving and settling in a new place, then the corresponding compensation is not subject to insurance premiums. The arbitrators came to this conclusion in the ruling of the Arbitration Court of the West Siberian District dated September 11, 2017 No. A67-7988/2016.
Let us say right away that the dispute we are considering arose during the period of validity of the Federal Law of July 24, 2009 No. 212-FZ (hereinafter referred to as Law No. 212-FZ). But the conclusions made by the court can also be applied to insurance premiums calculated and paid in accordance with Chapter 34 of the Tax Code of the Russian Federation.
The crux of the matter
Based on the results of the audit, the Pension Fund held the company liable for incomplete payment of insurance premiums as a result of underestimating the base for calculating insurance premiums. The reason for this was the following.
On general meeting The founders of the LLC decided to send the director of the organization to a temporary place of residence in another city for a period of three years. In connection with the move, the director was paid an amount to reimburse expenses associated with the change of residence. In addition, he was paid monthly compensation for rental expenses. These guarantees were established in an additional agreement to the employment contract.
The company did not pay from these amounts insurance premiums. According to inspectors from the Pension Fund of Russia, this is a violation of the legislation on insurance premiums. After all, these payments are not named in Art. 9 of Law No. 212-FZ. Let us recall that this norm contained a list of payments not subject to insurance contributions.
The organization did not agree with the auditors' conclusions and went to court.
Arbitrators' position
Three courts supported the company. The arbitrators agreed that the disputed payments are not wages, but represent compensation aimed at reimbursing the employee’s expenses in accordance with local regulations, and therefore these amounts are not subject to insurance premiums.
The courts referred to Art. 169 of the Labor Code of the Russian Federation, which guarantees to employees who move by prior agreement with the employer to work in another area, reimbursement of expenses for moving the employee, members of his family and transportation of property (except for cases when the employer provides the employee with appropriate means of transportation), as well as expenses for settling into a new place of residence. The procedure and amount of reimbursement of these expenses are determined by a collective agreement or local regulation or by agreement of the parties to the employment contract.
It is precisely the provisions of this article that give companies the right not to impose insurance premiums on the payments in question. The fact is that, according to sub. “and” clause 2, part 1, art. 9 of Law No. 212-FZ, all types of legally established compensation payments (within approved standards) related to the implementation of an individual labor responsibilities. Thus, the disputed payments are not subject to insurance premiums, since they represent compensation to employees for expenses incurred in connection with the performance of labor functions outside the place of permanent work, do not depend on the qualifications of the employees, are not included in the remuneration system and are not income (economic benefit) of the employee .
Victory is guaranteed
It should be said that the claims brought against the organization by inspectors from Pension Fund regarding the imposition of insurance premiums on compensation for housing costs, did not arise by chance. This is due to the fact that the fiscal point of view was also adhered to by specialists from the Russian Ministry of Labor during the period of Law No. 212-FZ. Thus, in letter No. 17-3/B-199 dated May 19, 2016, they indicated that Art. 169 of the Labor Code of the Russian Federation does not provide for the payment of compensation in the form of reimbursement amounts for the costs of an employee who moved to work in another area for renting residential premises. Therefore, such payments are subject to insurance premiums.
However arbitrage practice on this issue is completely on the side of the companies, and at the highest level. Example - Definition Supreme Court RF dated September 22, 2015 No. 304-KG15-5000. In this case, the company also paid workers when they moved to work from another location to reimburse the costs of arrangement, including the cost of rental housing.
In deciding in favor of the company, the arbitrators stated the following. The basis for calculating insurance premiums is payments and other remunerations accrued to the employee within the framework of the employment relationship. They recognize relationships based on an agreement between the employee and the employer on personal performance by the employee for payment. labor function, the employee’s subordination to internal regulations when the employer provides working conditions (Article 15 of the Labor Code of the Russian Federation). Some compensation payments Art. 129 of the Labor Code of the Russian Federation relate to wages. At the same time Art. 165 of the Labor Code of the Russian Federation establishes that in addition to general guarantees and compensation, employees are provided with other guarantees and compensation, including when moving to work in another area.
The controversial compensation payments are of a social nature. Despite the fact that they were produced in connection with the existence of an employment relationship, they do not have the characteristics wages in the sense of Art. 129 of the Labor Code of the Russian Federation, since they are not remuneration, do not relate to incentive payments, and do not depend on the employee’s qualifications, complexity, quality, quantity and conditions for this employee to perform the work itself. The fact of the existence of an employment relationship between the employer and his employees does not in itself indicate that all payments accrued to employees represent payment for their labor. Therefore, these payments fall within the scope of subsection. “and” clause 2, part 1, art. 9 of Law No. 212-FZ.
Similar conclusions are contained in the Ruling of the Supreme Court of the Russian Federation dated September 16, 2015 No. 304-KG15-5008, decisions of the Arbitration Court of the Ural District dated July 1, 2016 in case No. A60-42556/2015, and the Northwestern District dated January 21, 2016 in case No. A56-27541/ 2015, Central District dated December 8, 2015 in case No. A64-1983/2015, East Siberian District dated February 13, 2015 in case No. A33-7916/2014, Volga-Vyatka District dated September 30, 2014 in case No. A43-23628/2013 (Decision of the Supreme Court of the Russian Federation dated January 23, 2015 No. 301-KG14-6974 refused to transfer the case for consideration by the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation), etc.
Advice: When calculating income tax, you can take into account the entire amount of expenses for renting housing for employees. However, following this position will most likely lead to disputes with inspectors. Arguments like this will help.
The full cost of renting residential premises for employees can be taken into account on one of the following grounds:
– as payments related to settling in a new place of residence (Part 1 of Article 169 of the Labor Code of the Russian Federation). When calculating income tax, such payments can be qualified as deduction amounts and taken into account as part of other expenses (subclause 5, clause 1, article 264 of the Tax Code of the Russian Federation);
– as payments related to wages. The costs of renting residential premises are associated with providing employees with conditions for labor activity. This means that such expenses are associated with the production activities of the organization. If the obligation to pay the costs of renting housing is provided employment contract, they can be attributed to labor costs. After all, the list of such expenses is open. This follows from Article 255 of the Tax Code of the Russian Federation. There are examples in arbitration practice court decisions in favor of this position (see, for example, the resolution of the Federal Antimonopoly Service of the Central District dated September 29, 2010 No. A23-5464/2009A-14-233).
Moving from the Far North
Employees who terminate their employment contract with an organization located in the regions Far North(equivalent localities) and move to another locality, the amount of compensation for travel and baggage allowance can be taken into account according to clause 12.1 of Article 255 of the Tax Code of the Russian Federation. In this case, the following conditions must be met:
- the payment procedure and amount of compensation must be specified in the employment (collective) agreement (paragraph 1 of Article 255 of the Tax Code of the Russian Federation and Article 326 of the Labor Code of the Russian Federation);
- the amount of compensation must be paid within the limits of the tariffs provided for transportation by rail (in the absence of it, in the amount of the minimum cost of the flight and the cost of air transportation of baggage at the rate of no more than five tons per family) (clause 12.1 of article 255 of the Tax Code of the Russian Federation, clause 2 of the letter Ministry of Finance of Russia dated February 10, 2010 No. 03-03-06/1/59);
- an employment contract with an employee can be terminated for any reason (with the exception of dismissal for guilty actions) (Clause 12.1 of Article 255 of the Tax Code of the Russian Federation).
In this case, the expenses can include the entire amount of compensation, including VAT, which is highlighted as a separate line in travel documents. This conclusion is contained in the letter of the Ministry of Finance of Russia dated May 22, 2008 No. 03-03-06/1/329.
An example of how to reflect in accounting and taxation the payment to an employee of compensation for expenses associated with his transfer to work in another location together with the organization. The organization applies a general taxation system
In January Chief Accountant Alpha LLC A.S. Glebova is transferred to work in another area together with the organization (Ekaterinburg). Her husband is moving with the employee. The procedure for reimbursement of expenses associated with the transfer is provided for in the employment contract. The amount of compensation was established by order of the head of Alpha.
Compensation includes:
- the actual cost of travel for Glebova and her husband to their destination is 5,000 rubles;
- the actual cost of baggage transportation is 1000 rubles;
- the amount of expenses for arrangement at a new place of residence - 25,000 rubles;
- daily allowance for one day on the road – 100 rubles.
The total amount of compensation is 31,100 rubles.
Compensation was accrued and paid on January 11. The following entries have been made in the organization's accounting:
Debit 26 Credit 73
– 31,100 rub. – compensation was accrued in connection with Glebova’s transfer to work in another area;
Debit 73 Credit 50
– 31,100 rub. – compensation was paid to Glebova.
The amount of compensation is not taken into account when determining tax base according to personal income tax. Contributions to compulsory pension (social, medical) insurance and contributions to insurance against accidents and occupational diseases are not charged on the amount of compensation.
When calculating income tax for January, Alpha's accountant included 31,100 rubles in expenses.
simplified tax system
If an organization pays a single tax on income, payment of compensation for expenses associated with the transfer of an employee to work in another location does not reduce the tax base of simplified organizations. With such an object of taxation, no expenses are taken into account (clause 1 of Article 346.18 of the Tax Code of the Russian Federation).
Situation: is it possible to take into account compensation associated with an employee’s move to work in another area together with the organization when calculating the single tax under simplification? The organization pays a single tax on the difference between income and expenses.
Answer: yes, it is possible if the payment of compensation is provided for in the labor and (or) collective agreement.
The list of expenses that can be recognized when calculating the single tax on the difference between income and expenses is closed. It does not provide for the costs of paying compensation associated with the transfer of an employee to work in another location together with the organization (Clause 1 of Article 346.16 of the Tax Code of the Russian Federation).
At the same time, organizations that apply the simplification take into account labor costs in the same manner as organizations that pay income tax (subclause 5, clause 1, clause 2, article 346.16 of the Tax Code of the Russian Federation). Article 255 of the Tax Code of the Russian Federation allows any payments provided for by labor (collective) agreements to be included in these expenses.
Thus, if the payment of compensation is provided for in a labor and (or) collective agreement, then the reduction in the tax base for single tax for the amount of compensation is legal. This point of view is indirectly confirmed by the conclusions of the letter of the Ministry of Finance of Russia dated July 23, 2009 No. 03-03-05/138. Although this document explains the procedure for accounting for employee relocation expenses when calculating income tax, simplified organizations can also follow its provisions (clause 2 of Article 346.16 of the Tax Code of the Russian Federation).
In doing so, observe the following conditions:
- compensation for expenses related to moving to work in another area must actually be paid to the employee (clause 2 of Article 346.17 of the Tax Code of the Russian Federation);
- compensation for moving expenses is included in the costs only in the amounts established by the labor and (or) collective agreement (clause 25 of article 255 of the Tax Code of the Russian Federation, part 2 of article 169 of the Labor Code of the Russian Federation).
In addition, compensation for travel and luggage for employees who terminate an employment contract with an organization located in the Far North (equivalent areas) and move to another area can be included in expenses only subject to certain restrictions .
UTII
Organizations that pay UTII calculate the amount of the single tax based on imputed income (Article 346.29 of the Tax Code of the Russian Federation). Therefore, compensation associated with the transfer of employees to work in another area does not affect the calculation of the tax base.
Combination of OSNO and UTII
Compensation associated with transfer to work in another locality can be paid to an employee who is simultaneously engaged in the activities of an organization subject to UTII and activities on the general taxation system. In this case, to determine the amount of compensation that can be taken into account when calculating income tax, the entire amount paidneed to be distributed (clause 9 of article 274 of the Tax Code of the Russian Federation, clause 7 of article 346.26 of the Tax Code of the Russian Federation). Compensation paid to employees engaged in one type of activity does not need to be distributed.
An example of the distribution of compensation associated with the transfer of an employee to work in another location. The organization applies a general taxation system and pays UTII
LLC "Trading Company "Hermes"" sells goods wholesale and retail. For wholesale transactions, the organization applies a general taxation system. Retail trade has been transferred to UTII. Hermes accrues income tax on a monthly basis.
The accounting policy of the organization states that general business expenses are distributed in proportion to income for each month of the reporting (tax) period.
In March, Hermes opened a branch in the Vladimir region. A.V. was appointed director of the branch. Lviv. The branch is engaged in wholesale and retail y. Retail trade in the Vladimir region has been transferred to UTII.
The procedure for reimbursement of expenses associated with the transfer of an employee to work in another location is determined by the employment contract with Lvov. The amount of compensation was established by order of the head of Hermes in the amount of 30,000 rubles. Compensation is accrued and paid on March 15.
In order to correctly distribute the amount of compensation between expenses for different types of activities, the Hermes accountant compared income from wholesale trade with the total income of the organization.
Income received by Hermes from various types activities in March were:
- for wholesale trade (excluding VAT) - 1,200,000 rubles;
- retail - 700,000 rubles.
The organization had no other income.
The share of income from wholesale trade in total income for March is:
RUB 1,200,000 : (RUB 1,200,000 + RUB 700,000) = 0.632.
The amount of compensation associated with the transfer of an employee, which is taken into account when calculating income tax for March, is equal to:
30,000 rub. × 0.632 = 18,960 rub.
The accountant took this amount into account when calculating income tax for January-March.
The amount of compensation associated with the transfer of an employee, which relates to activities subject to UTII, is:
30,000 rub. – 18,960 rub. = 11,040 rub.
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