Moving to another city is a common situation. But finding a job in a new place of residence is much more difficult. How is the dismissal of an employee who moves to live in another area?
Dismissal due to moving to another city occurs in a declarative manner. That is, the employee must write a statement addressed to the head with a request to dismiss him, as he changes his place of residence.
Such grounds for termination labor relations between an employee and an employer is possible according to the Labor Code of the Russian Federation. There are 2 reasons for leaving:
- on 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 clarified 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 an employee or his family is forced to change their place of residence occurs on a general basis, with mandatory subsequent working off. But if the spouse of an employee serves in the state or law enforcement agencies of the Russian Federation, and he is urgently transferred to a new place of service, then you can quit without working off. But for this, it is necessary to present to the employer a certificate from the place of service of the spouse.
In Art. 84.1 of the Labor Code of the Russian Federation it is said that exactly the same reason for dismissal should be indicated in the work book as stated in the application. But the specific reason for dismissal due to relocation is not indicated. 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. 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 also have to move to another city. If so, the employer has the right to invite his employees to move with him. When moving to another city, all employees who have given their consent will be employed.
A move 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, he also gives a written negative answer. This is the basis 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 the place of residence and work;
- working off 14 days, if there is no other agreement with the employer or the move is not urgent (for which there is evidence);
- familiarization against signature with the order of dismissal. Separately, you need to check the specified reason for the 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;
- obtaining a work book;
- receipt of a certificate in the form of 2-NDFL and in the form of 4-FSS.
Dismissal without work due to relocation
If the reason for the termination of the employment relationship is precisely the relocation of the employee, then this applies to dismissal on his own initiative. In Art. 80 of the Labor Code of the Russian Federation says that dismissal on such a basis implies a mandatory 2-week working off.
In Art. 80 of the Labor Code of the Russian Federation also says that to quit without working off, according to own will, can be for the following reasons:
- obtaining the consent of the employer;
- if it is impossible to continue working due to admission to a university or retirement due to old age;
- received sick leave.
The consent of the employer must be obtained in writing. As a rule, an agreement is concluded between the parties, which states that this employee can quit without a 2-week working off. If the employee is no longer able to continue working due to the fact that he is retiring, or he begins full-time studies at the university, then he must indicate this in the letter of resignation.
Moving to another locality is not a legitimate reason for dismissal without work. But you can negotiate with the leader and explain to him the reason for your departure. As practice shows, employers go to meet such employees and allow them to quit without working out the mandatory period.
If the dismissal is related to the transfer of the spouse to a new duty station, then this is exactly what should be indicated in the application. The application must be accompanied by a certificate from the place of service of the spouse.
Payment for relocation upon dismissal
If an employee quits due to the fact that 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 the transfer to another area, then the employer must pay for the travel. In Art. 165 of 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 says that when an employee moves to another locality, together with the employer, the latter must compensate for:
- the cost of moving the employee himself, as well as all members of his family;
- the cost of 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 relocation expenses, which is subject to compensation by the employer, is prescribed in Decree of the Government of the Russian Federation of 04/02/2003 No. 187.
In pp. “a” of clause 1 of this Decree says that:
- Travel expenses to a new place of work for the employee himself and his family members are compensated in the amount of actual expenses, confirmed by travel documents. In this case, the limit is set:
- if the move is carried out by train, then no more than the cost of tickets in the compartment car of a fast branded train;
- if 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 of a river vessel of all lines of communication, in a category I cabin of a ferry vessel;
- by air - in the economy class cabin;
- by car, but not by taxi.
- If the tickets are not preserved, then compensation occurs as follows:
- on railway- the cost of a reserved seat;
- by water - in the cabin of group X of a sea vessel of regular transport lines and lines with integrated passenger service, in the cabin of category III of a river vessel of all lines of communication;
- by road - by bus of a general type.
Other expenses are reimbursed in accordance with paragraphs "b" and paragraphs. "c" paragraph 1 of Resolution 187.
The employee will be required to return the amount of compensation for the move in the following cases:- he did not start his direct duties on time;
- resigned of his own free will before the end of the term of the employment contract, which was concluded with him in a new locality;
- committed a guilty act, the disciplinary punishment for which is dismissal.
However, these items must be explicitly spelled out in the new employment contract.
If the employee did not show up for work or refused to start work for a good reason, he is obliged to return the funds paid to him, less the expenses incurred by him for his relocation and the relocation of his family members, as well as the costs of transporting property.
Resignation letter due to relocation
In order for the dismissal for such a reason to take place in compliance with all the norms of the current legislation, you need to correctly write a statement. It is this that is the basis for issuing an order to terminate an employment relationship with a specific person.
The application must indicate the following:
- in the upper right corner, place the "header" of the document:
- 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 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 specify "I ask you to fire me on 09/25/2018", then the last working day will be 09/24/2018. If he indicates “I ask you to fire me from 09/25/2018”, then 09/25/18 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 will be drawn up in the latter version, then it is not necessary to indicate information about the enterprise in the "header" of the application. This is due to the fact that the letterhead, as a rule, already contains all necessary information about the employer;
- it must be sent to the employer.
You can do this in several ways:
- during a personal visit to the secretariat of the head of the enterprise. In this case, you need to make 2 copies of the document. On one of them, the secretary 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 be signed by the person who received the letter and the date of acceptance;
- on e-mail. This way of sending documents is now becoming more and more popular. But it is important that the sender has an email address.
If the dismissal from work is related to the relocation / transfer of the spouse to a new place of service, then this is exactly what should be indicated in the application. To reduce the period of working off, you need to attach a certificate from the place of service of the spouse.
But it’s better to do it anyway, so that later the employer can easily prove that he really notified the 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 on receipt of the notice remains with the employer. You can separately draw up an act on familiarizing the employee with the notification. If the employee refuses to sign, then an act is also drawn up about this, and the notification itself is sent to the employee by registered mail with a description of the attachment. Offer of vacant positions If the employee does not agree to work in the new conditions, the employer is obliged to offer him another job in writing (if there is such a job in the same city, for example, in a separate subdivision).
We move with the employer to another area
The Labor Code of the Russian Federation says that dismissal on such a basis implies a mandatory 2-week working off. In Art. 80 of the Labor Code of the Russian Federation also says that you can quit without working off, at your own request, for the following reasons:
- obtaining the consent of the employer;
- if it is impossible to continue working due to admission to a university or retirement due to old age;
- received sick leave.
The consent of the employer must be obtained in writing.
As a rule, an agreement is concluded between the parties, which states that this employee can quit without a 2-week working off. If the employee is no longer able to continue working due to the fact that he is retiring, or he begins full-time studies at the university, then he must indicate this in the letter of resignation.
Transfer of an employee to another locality
For employees - in total monthly salary at a new place of work, for members of their families - one fourth of the employee's allowance for each;
- salary (according to tariff rate salary at a new workplace) for the time spent on the road, as well as for the time of getting ready for the journey and accommodation (in total - up to 6 days) at a 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 on the basis of the terms of the employment contract, but cannot be lower than the minimum by law.
For commercial companies, there is no “minimum wage” for compensation due to the relocation of employees by law. When transferring employees, it is necessary to conclude an agreement on reimbursement of expenses.
Dismissal due to relocation
Moving to another city is a common occurrence. But finding a job in a new place of residence is much more difficult. How is the dismissal of an employee who moves to live in another area? Dismissal due to moving to another city occurs in a declarative manner.
Attention
That is, the employee must write a statement addressed to the head with a request to dismiss him, as he changes his place of residence. Such a basis for terminating labor relations between an employee and an employer is possible under the Labor Code of the Russian Federation.
There are 2 reasons for leaving:
- on 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 clarified in the application. After writing it, the employee is given a bypass sheet, which he must sign within two weeks.
Moving the organization to another city dismissal
In the application, the employee writes:
- Full name, position and division, if necessary;
- date of dismissal and date of writing;
- the possibility and impossibility of working off the presented time.
Upon agreement with the management, dismissal without working off is possible. Here the employer puts his signature, the basis is written in the work book and compensation is paid.
At the place of work of the husband Dismissal of such a plan is possible. This item is spelled out in the Labor Code. A feature here is the absence of the obligation to work out two weeks.
To do this, you need to provide a supporting document on the transfer of the spouse to another place. A certificate of this type is issued in a military unit. It is the basis for the urgent dismissal of an employee. The wife is entitled to a specific payment.
Dismissal due to the fact that an employee or his family is forced to change their place of residence occurs on a general basis, with mandatory subsequent working off. But if the spouse of an employee serves in the state or law enforcement agencies of the Russian Federation, and he is urgently transferred to a new place of service, then you can quit without working off.
But for this, it is necessary to present to the employer a certificate from the place of service of the spouse. In Art. 84.1 of the Labor Code of the Russian Federation it is said that exactly the same reason for dismissal should be indicated in the work book as stated in the application.
Info
But the specific reason for dismissal due to relocation is not indicated. 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.
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 also have to move to another city. If so, the employer has the right to invite his employees to move with him.
When moving to another city, all employees who have given their consent will be employed. A move 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, he also gives a written negative answer. This is the basis 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 says that when an employee moves to another locality, together with the employer, the latter must compensate for:
- the cost of moving the employee himself, as well as all members of his family;
- the cost of 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 relocation expenses, which is subject to compensation by the employer, is prescribed in Decree of the Government of the Russian Federation of 04/02/2003 No. 187.
In pp. "a" p.
Moving an employee to another city
The company moves to another city. Painless ways to transfer employees to a new location How to change the terms of an employment contract without asking the employee In which document to justify organizational changes What vacancies to offer to a replacement employee expensive city. As a rule, this is formalized by the transfer of employees together with the employer to another locality (art.
72.1 of the Labor Code of the Russian Federation). In practice, such a translation procedure is complicated. Firstly, it is practically not regulated by the Labor Code: it is not clear whether it is necessary to notify employees of such a transfer, if necessary, in what way and within what time frame, etc.
e. Secondly, it will not work 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 their job without working off. One of the grounds for dismissal without working off is moving. Therefore, this aspect should be considered in more detail in order to correctly quit in a short time and proceed to 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 employment history for the record 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, the entire dismissal procedure must be properly documented. If this is a fixed-term employment contract, then automatically at the end of the document, the person quits.
Moving an employee to another city
For existing employees, this is a painful decision. Not everyone will be able or willing to change their place of residence. Problem condition: A large online store Pokupai.ru is expanding rapidly.
During the year, the number of employees more than tripled, both the payroll fund and office costs increased significantly, etc. Moving an organization to another city dismissal At present, 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 regular 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.
Moving an employee to another city of the shopping mall of the Russian Federation
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 certain parties terms of the employment contract. including transfer to another job. allowed only by AGREEMENT of the PARTIES to the employment contract. except for the 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 Art. 169 of the Labor Code of the Russian Federation
When an employee moves, by prior agreement with the employer, to work in another locality, the employer is obliged to reimburse the employee:
expenses for the relocation of the employee, his family members and transportation of property (except for cases when the employer provides the employee with appropriate means of transportation);
expenses for settling in a new place of residence.
The procedure and amount of reimbursement of expenses when moving to work in another locality for employees who have concluded an employment contract for work in federal government bodies, employees of state non-budgetary funds Russian Federation, federal public institutions determined by regulatory legal acts Government of the Russian Federation.
The procedure and amount of reimbursement of expenses when moving to work in another locality for employees who have concluded an employment contract for work in state bodies of the constituent entities of the Russian Federation, employees of territorial compulsory medical 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 the regulatory legal acts of the 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 to 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 provided 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 locality, to reimburse him for a number of expenses.
Another commentary on Art. 169 of the Labor Code of the Russian Federation
1. Expenses incurred when moving to another locality 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 the expenses incurred by him 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 dimensions compensation has not been established.
2. Article 169 of the Labor Code of the Russian Federation provides for compensation to an employee in connection with the relocation of two types of expenses: the actual relocation and the arrangement in a new place. Because Art. 169 of the Labor Code of the Russian Federation does not mention the payment of a one-time allowance to an employee and members of his family, as well as wages for the days of gathering on the road and settling in a new place, these amounts are reimbursed only by agreement of the parties to the employment contract.
3. Reimbursement of 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 for expenses when moving to another locality 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 for:
Relocation expenses;
The cost of transporting property;
Arrangement expenses.
6. Relocation expenses consist of travel expenses for the employee himself, his family members, as well as luggage transportation. These expenses are reimbursed if the employer does not provide the employee with transport for travel and (or) transportation of luggage.
The family members of the employee 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 cost of travel is subject to compensation: by rail- in a compartment car 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 integrated passenger service, 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 motor vehicle common use(except taxi).
In the absence of travel documents confirming the expenses incurred, reimbursement is made in the amount of the minimum fare: by rail - in a second-class carriage of a passenger train; by water transport - in the cabin of the X group of a sea vessel of regular transport lines and lines with integrated passenger service, in the cabin of category III of a river vessel of all lines of communication; by road - in a general type bus.
Baggage transportation is paid at the rate of 500 kg for the employee himself and 150 kg for each moving family member, subject to the carriage of luggage by rail, water and road transport (public). In the absence of these modes 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 can be paid. By agreement of the parties, the actual costs of transporting property in a larger amount may be paid.
The cost of travel of family members and the transportation of their property is paid if they move to a new place of residence of the employee before the expiration of one year from the date of his move.
Travel and baggage costs are not reimbursed if the employer provides the employee with appropriate means of transportation.
7. Expenses for settling in a new place of residence are reimbursed at the rate of the official salary of the employee at his new place of work for the employee himself and a quarter of the indicated 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 obligation of the employer to pay the employee per diem for the time spent 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 you travel. Daily allowance is 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 locality, 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 term of work due to the transfer, direction or employment, and in the absence certain period- before the expiration of one year of work, he resigned of his own free will without a good reason or was dismissed for guilty actions, which, in accordance with the law, were the basis for terminating the employment contract.
An employee who does not show up for work or refuses to start work for a good reason must 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 a 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 3777)).
- Up
- Chapter 25 of the Labor Code of the Russian Federation. Guarantees and compensations to employees in the performance of state or public duties ›
If the 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. This conclusion was reached by the arbitrators in the decision of the Arbitration Court of the West Siberian District dated September 11, 2017 No. A67-7988 / 2016.
Let's 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 - Law No. 212-FZ). But the conclusions made by the court can also be applied to insurance premiums accrued and paid in accordance with Chapter 34 of the Tax Code of the Russian Federation.
Heart of the matter
As a result of the audit, the Pension Fund held the company liable for the incomplete payment of insurance premiums as a result of understating the base for calculating insurance premiums. The reason for this was the following.
On the general meeting founders of the LLC, it was 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 relocation, the Director was paid the amount of reimbursement of expenses associated with the change of residence. In addition, he was paid monthly compensation for the cost of renting housing. 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 FIU, 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. Recall that this norm contained a list of payments not subject to insurance premiums.
The organization did not agree with the conclusions of the auditors and went to court.
Position of arbitrators
Three judicial instances supported the company. The arbitrators agreed that the disputed payments are not wages, but are compensation aimed at reimbursement of 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 employees who, by prior arrangement with the employer, move to work in another locality, reimbursement of expenses for the relocation of the employee, members of his family and transportation of property (except in cases where the employer provides the employee with appropriate means of transportation), as well as expenses for settling in a new place of residence. The procedure and amount of reimbursement of these expenses are determined by the collective agreement or local normative act 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 tax the payments in question with insurance premiums. The point is that, according to "and" p. 2 h. 1 art. 9 of Law No. 212-FZ, all types of legally established compensation payments (within the approved norms) related to the implementation of insurance premiums are not subject to insurance premiums. individual labor duties. Thus, 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 employees, are not included in the wage system and are not income (economic benefits) of the employee .
Victory guaranteed
It should be said that the claims made by the inspectors from pension fund in terms of taxation of insurance premiums compensation for housing, arose not by chance. This is due to the fact that the specialists of the Ministry of Labor of Russia also adhered to the fiscal point of view during the period of the Law No. 212-FZ. So, in a letter dated 05/19/2016 No. 17-3 / B-199, 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 for the costs of an employee who has moved to work in another area for renting a dwelling. 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 employees when they moved to work from another area reimbursement for the cost of settling, including the cost of renting housing.
In deciding in favor of the company, the arbitrators stated the following. The basis for the calculation of insurance premiums are payments and other remuneration accrued to the employee in the framework of labor relations. They recognize relations based on an agreement between the employee and the employer on the personal performance by the employee for a fee. labor function, subordination of the employee to the internal regulations while providing the employer with 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 are related to wages. At the same time, Art. 165 of the Labor Code of the Russian Federation establishes that in addition to general guarantees and compensations, other guarantees and compensations are provided to employees, including when moving to work in another area.
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 signs wages in the sense of Art. 129 of the Labor Code of the Russian Federation, since they are not wages, do not apply to incentive payments, do not depend on the qualifications of the employee, the complexity, quality, quantity and conditions of the work performed by this employee. The fact of the existence of an employment relationship between an employer and its employees does not in itself indicate that all payments accrued to employees are remuneration for their work. Therefore, these payments are subject to sub. "and" p. 2 h. 1 art. 9 of Law No. 212-FZ.
Similar conclusions are contained in the Ruling of the Supreme Court of the Russian Federation No. 304-KG15-5008 of September 16, 2015, decisions of the Arbitration Court of the Ural District of July 1, 2016 in case No. A60-42556 / 2015, of the North-Western District of January 21, 2016 in case No. A56-27541 / 2015, Central District dated December 08, 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 (Determination of the Supreme Court of the Russian Federation of 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 the cost of renting housing for employees. However, following such a position is likely to lead to disputes with inspectors. Arguments like this will help.
The cost of renting housing for employees in full can be taken into account on one of the 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 lifting 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 cost of renting a dwelling is related to providing employees with conditions for labor activity. So, such expenses are associated with the production activities of the organization. If the obligation to pay the costs of renting housing is provided for 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 judgments in favor of such a position (see, for example, the resolution of the Federal Antimonopoly Service of the Central District of September 29, 2010 No. A23-5464 / 2009A-14-233).
Moving from the regions of the Far North
Employees who terminate the employment contract with an organization located in the districts Far North(equal localities), and move to another locality, the amount of compensation for travel and baggage can be taken into account under paragraph 12.1 of Article 255 of the Tax Code of the Russian Federation. In this case, the following conditions must be met:
- the procedure for payment and the amount of compensation must be prescribed in the labor (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 luggage at the rate of not 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 (except for dismissal for guilty actions) (clause 12.1 of article 255 of the Tax Code of the Russian Federation).
In this case, the costs can take into account the entire amount of compensation, including VAT, allocated in travel documents as a separate line. This conclusion is also contained in the letter of the Ministry of Finance of Russia dated May 22, 2008 No. 03-03-06/1/329.
An example of the reflection in accounting and taxation of the payment to an employee of compensation for expenses associated with his transfer to work in another locality together with the organization. The organization applies the general system of taxation
In January Chief Accountant Alpha LLC A.S. Glebov is transferred to work in another locality together with the organization (Yekaterinburg). Her husband is moving with the employee. The procedure for reimbursement of expenses related to translation is provided for by the employment contract. The amount of compensation is set by order of the head of Alpha.
Compensation includes:
- the actual fare for Glebova and her husband to their destination is 5,000 rubles;
- the actual cost of baggage - 1000 rubles;
- the amount of expenses for settling in 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 is accrued and paid on January 11. The following entries were made in the accounting of the organization:
Debit 26 Credit 73
- 31,100 rubles. - compensation was accrued in connection with the transfer of Glebova to work in another area;
Debit 73 Credit 50
- 31,100 rubles. - Compensation was paid to Glebova.
The amount of compensation is not taken into account when determining tax base by personal income tax. Contributions for compulsory pension (social, medical) insurance and contributions for insurance against accidents and occupational diseases are not accrued for the amount of compensation.
When calculating income tax for January, Alfa's accountant included 31,100 rubles in expenses.
USN
If an organization pays a single tax on income, the payment of compensation for expenses associated with the transfer of an employee to work in another locality does not reduce the tax base of organizations on a simplified basis. 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 when calculating a single tax when simplifying the compensation associated with moving an employee to work in another area together with the organization? The organization pays a single tax on the difference between income and expenses.
Answer: yes, you can, if the payment of compensation is provided for by 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. The cost of paying compensation related to the transfer of an employee to work in another locality together with the organization is not provided for in it (clause 1 of article 346.16 of the Tax Code of the Russian Federation).
At the same time, organizations that use simplified taxation take into account labor costs in the same manner as organizations paying 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 you to include in these expenses any payments provided for by labor (collective) agreements.
Thus, if the payment of compensation is provided for by the 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 the cost of moving an employee when calculating income tax, organizations on a simplified tax system 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 the costs of moving to work in another locality must be actually paid to the employee (clause 2 of article 346.17 of the Tax Code of the Russian Federation);
- compensation for relocation expenses is included in the costs only in the amounts established by the labor and (or) collective agreement (clause 25, 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 baggage for employees who terminate their employment contract with an organization located in the regions of the Far North (equal areas) and move to another location can be included in expenses only subject to certain restrictions. .
UTII
Organizations paying UTII calculate the amount of a single tax based on imputed income (Article 346.29 of the Tax Code of the Russian Federation). Therefore, compensations associated with the transfer of employees to work in another area do not affect the calculation of the tax base.
Combination of OSNO and UTII
Compensation associated with a 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, in order to determine the amount of compensation that can be taken into account when calculating income tax, the entire amount paidneed to distribute (Clause 9, 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 that is 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 area. The organization applies the general taxation system and pays UTII
OOO "Trading firm "Germes"" sells goods wholesale and retail. For wholesale operations, the organization applies the general system of taxation. Retail trade was transferred to UTII. Hermes calculates 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. Lvov. The branch is engaged in wholesale and retail th. Retail trade in the Vladimir region was transferred to UTII.
The procedure for reimbursement of expenses associated with the transfer of an employee to work in another area is determined by an employment contract with Lvov. The amount of compensation is set 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 kinds 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 : (1,200,000 rubles + 700,000 rubles) = 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 rubles.
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 rubles. = 11,040 rubles.
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