Why does the director of an LLC need to be paid a salary? How to solve the issue with the salary of the founding CEO of the company more profitable

The only founder is the director of the LLC: is he an employee of the organization and should he receive a salary?

The topic of today's article has repeatedly surfaced in the questions of our readers, and now it's time to clarify one of the most common questions: can an LLC not have employees?

First, let's think a little. In what situation can you be interested in this issue at all? When in the LLC there is not a single employee hired under an employment contract. But what about the director, he is the head of the organization? Why is he not an employee? But what if the founder of the LLC is at the same time a manager who himself carries out all the necessary activities, and he simply does not need hired workers? Is he an employee or not an employee? And if an employee, is it necessary to pay him a salary?

Consider different situations

Let's consider the situation a little more broadly. An LLC always has founders, either several or one. Now about each situation in order.

Situation 1: several founders (or one founder), the director is an outsider.

In this case, the general director is unambiguously recognized as an employee of the LLC, with whom the founders must conclude an employment contract. There may be no other employees in the company, since all the work, for example, is done by the founders themselves. The director as an employee of the organization must receive a salary, insurance premiums must be paid for him. At the same time, the founders receive income in the form of dividends.

Situation 2: several founders, the director is one of them.

In this case, an employment contract must also be signed with the founder, who is entrusted with the duties of the head of the company - that is, he is recognized as an employee of the organization. The employer's signature on the employment contract is signed by the other founder. It is impossible not to appoint a director, the company must have a leader who is needed at least in order to sign documents. The founder, appointed by the director, must receive a salary, and insurance premiums must be paid for him. In addition, he has the right to claim, like the rest of the founders, for dividends.

The conclusion on these two situations is only this: the head of the organization is recognized as its employee, respectively, the LLC has at least one employee - its director!

Situation 3: one founder - he is also the leader.

This case is the most interesting and problematic. There are a lot of cases when an LLC is founded by one person. It is quite natural that in most of these cases, the sole founder assumes the responsibility of managing the company on himself - this is not prohibited by law. What about the employment contract here?

The main problem of this situation is that it is impossible to sign an employment contract, since the same person will sign it from both sides, and this, as you understand, is somehow wrong. On this issue, the opinions of government agencies still do not coincide, and there is still no single and unequivocal answer. But in general, we can say the following:

1. The absence of a contract does not mean the absence of an employment relationship;
2. Labor relations arise both at the time of signing the employment contract and at the time of the actual admission of the employee to his duties;
3. The relationship arising from the appointment of a director is characterized as a relationship based on an employment contract.

It turns out that such a head, the founder is an employee of the organization on the basis of a decision to entrust these responsibilities to himself. It is recommended to formalize this fact by order.

The next problem is: should such a leader receive a salary? In theory, according to Art. 21 of the Labor Code of the Russian Federation, must. The amount of remuneration is usually reflected in the employment contract, but in the situation described, this document is absent. How to be? The size of the salary in this case can be indicated in the staffing table - this document is compiled without fail in any case. By the way, let's immediately answer the question, why do you need a staffing table in an LLC with one employee, who is also its founder? It is very important to draw up personnel documents in a timely manner and correctly. Those who say that it is possible to do without it will change their minds after the first inspection by the labor inspectorate.

Now let's talk about this. The founder and CEO in one person can receive both salaries and dividends. And many people think this way: since there is no employment contract, the salary is not fixed anywhere, then the salary can not be paid, contributions can also not be paid (they are charged from the salary), and only receive dividends - before the personal income tax rate on them was also lower, then there is such an approach that was beneficial in terms of the fact that the tax amount was less. But this approach can lead to not very pleasant consequences:

1. Dividends can be paid not always, but under certain conditions:
   • They are paid no more than once a quarter from the net profit that will remain after all taxes have been paid. Payment is made on the basis of the decision of the founder, which needs to be drawn up on paper in the form of an order, and not "I wanted to - I paid";
   • The payment of dividends is possible only when the authorized capital of the LLC is fully paid, the company has no signs of bankruptcy, and the amount of net assets after the planned payments does not fall below the amount of the authorized capital (to which, if any, a reserve fund is added).
2. If the above conditions are not met, and dividends are paid according to the "as desired" scheme, then the tax authorities will simply reclassify these amounts into salaries. What will follow this?
   • Now personal income tax on salaries is 13%, a similar rate is used for taxing dividends - if the dividend rate was 9% as before, then you would have to pay additional tax;
   • Insurance contributions are paid from the salary, but not from dividends - they will recalculate the amounts to funds.

Output

In this situation, the best solution would be to pay both salaries and dividends. The founder entrusts himself with the management functions of the company through the execution of the corresponding order, the salary for calculating the salary is reflected in the staffing table. To minimize taxes, the salary can be set in the amount of the minimum wage - it cannot be less than it. By the way, do not forget that the minimum wage changes annually, so the salary for yourself will have to be indexed every year. The director = the founder will receive a salary from which insurance premiums will be paid, as well as dividends in the manner prescribed by law. Payment of dividends must be formalized by an appropriate order. The sums of salaries and insurance premiums can be taken into account as part of the expenses of the LLC on the basis of the existing order on the assignment of powers, staffing table, pay slips and other documents. Naturally, dividends cannot be accounted for in the company's expenses.

Conclusion

And, finally, a piece of advice: if you, the only founder of an LLC, are at the same time its head, and also carry out all activities independently, then, for sure, now you are thinking, is it possible to do without all these paperwork, controversial issues and problems? It is possible, for this it was necessary to register as an individual entrepreneur. Therefore, before you go to register an LLC, think, is it really necessary for you?

You can often come across a situation when the owner of a company becomes its CEO. The law does not prevent this, and it is possible to establish a commercial company alone. How to fix the employment relationship in this case?

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

Employment contract with the founder-director

The legislation of the Russian Federation does not give a direct answer to the question of whether a company should formalize in such a situation. The Federal Service for Labor and Employment believes that the contract is not required. In the letter of Rostrud No. 2262-6-1 dated 28.12.2006, it is stated that the work of the director is regulated by the 43rd chapter of the Labor Code. Article 273 of the Labor Code of the Russian Federation indicates that the requirements of this chapter do not apply to the head of a company if it is a matter of its sole owner.

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

This point of view is shared by the Ministry of Health and Social Development of the Russian Federation. Letter No. 22-2-3199 of 18.08.2009 says that the presence of the same signature on both sides is unacceptable (according to Art. 273 of the Labor Code of the Russian Federation). Thus, if the company does not have one more founder, the contract is not needed.

There is also a different view of the situation. Thus, the Federal Arbitration Court of the Northwestern District confirmed that, according to Art. 11 of the Law "On Limited Liability Companies" dated 08.02.1998 (Law No. 14-FZ), a citizen can establish a company alone. In accordance with the first paragraph of the 40th article of this law, the general meeting of the founders of the company elects its sole executive body (this may be the president, etc.) for the period, which is determined in the charter of the LLC.

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

That is, the situation when the sole owner of the company assumes the functions of the head of the same company does not contradict the legal norms and the charter of the company. The position of the court is set out in the resolution of the FAS SZO dated 19.04.2004 No. A13-7545 / 03-20.

When drawing up an employment contract with the general director, in the role of which the sole owner of the company acts, the following must be remembered:

The CEO must be elected. However, in our case, when there are no other members of the company, and the employment contract on behalf of the firm is signed by one owner, the Company itself acts as the employer;

Directors are hired on a general basis, in accordance with Art. 68 of the Labor Code of the Russian Federation. The decision of the sole founder of the LLC on the appointment of a manager forms the basis of the order on employment. This order must be signed by the manager himself.

Payroll to the founder-director

Wages are defined in labor law as remuneration for work that took place under the relevant contract. If the CEO is the sole owner of the company and there is no formal employment contract, it is permissible to indicate the amount of his salary in the staffing table.

If an employment contract is concluded, it must contain a condition on the remuneration of the owner-manager (according to Article 57 of the Labor Code of the Russian Federation). At the same time, it is important to take into account that wages for one full working month (entirely worked hours and fulfilled labor standards) must exceed the minimum wage (minimum wage) or be equal to it (Article 133 of the Labor Code of the Russian Federation).

In addition to the salary, the owner-CEO is entitled to a share of the profits. If there is no labor contract, he can work without salary and bonuses, receiving only dividends. When calculating these payments, several factors should be taken into account:

Payment of dividends is allowed no more often than once a quarter;

The amount of dividends is calculated on the basis of the company's net profit, that is, after all mandatory payments have been paid;

The basis for calculating dividends in each specific case must be the owner's decision.

Calculating monthly dividends is a common accounting mistake. In this case, the audit of the company's statements will perceive this not as dividends, but as salaries, which will entail corresponding tax consequences.

How do I keep track of my founding director's salary expenses?

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

The answer to this question depends on the presence / absence of an employment contract. If the contract takes place, then the amount of the salary must be indicated in it. Accordingly, it can be spent as labor costs.

In the absence of an agreement, you can act at your own discretion. However, it should be borne in mind that if an employee de facto works, labor relations take place, even if they are absent “on paper” (part 2 of article 16, article 19, part 2 of article 67 of the Labor Code of the Russian Federation). In this case, it is appropriate to assume that paragraph 1 of Art. 255 of the Tax Code of the Russian Federation is also applicable in the absence of a contract with the owner-director.

Director- This is the head or manager of an enterprise or company. Traditionally, he is the top position in the organization, his authority is to determine financial flows, work with personnel, as well as the choice of the company's development strategy. However, he is not always the main person in the company. Often, the director corps represents hired people and they are assigned a certain salary.

Many people, mainly employees of enterprises, have always been interested in one question: how much does he earn their boss? Let's try to figure it out.

How much does the head of the company earn

Infographic - Leadership Salaries by Industry

The incomes of heads of organizations are very different and on average are in the range of 50 - 500 thousand rubles per month. Although there may be significant differences for individual items. For example, the established salary of the head of some remote place can start from a couple of tens of thousands of rubles, or reach mind-boggling amounts.

According to the information voiced by the deputy Valery Rashkin of the Communist Party of the Russian Federation at a meeting in parliament in October 2014, the income of some heads of state-owned companies is quite large.

So he gave the following figures:

• 1. Igor Sechin receives about 4.5 million rubles a day from ROSNEFT, which is about 100 million rubles a month.
• 2. Alexey Miller receives about 2.2 million rubles a day from GAZPROM.
• 3. Vladimir Yakunin in the Russian Railways company receives 1.3 million rubles a day.

By the way, the salaries of officials and deputies do not differ much from the figures that are offered to you in this article. If you want to know which of the civil servants receives the most in Russia -

Highest paid CEOs

1st place... Igor Sechin - Chairman of the Board of Rosneft
Aggregate compensation from the company for the year - $ 50 million.
2nd place... Andrey Kostin - Chairman of the Management Board, President of VTB Bank

Aggregate compensation from the company for the year - $ 35 million.
3rd place... Alexey Miller - Chairman of the Management Board, President of Gazprom
Aggregate compensation from the company for the year - $ 25 million.
4th place... Andrey Akimov - Chairman of the Management Board, President of Gazprombank

5th place... German Gref - Chairman of the Board, President of Sberbank
Aggregate compensation from the company for the year - $ 15 million.
6th place... Mikhail Kuzovlev - Chairman of the Board, President of the Bank of Moscow
Aggregate compensation from the company for the year - $ 15 million.
7th place... Dmitry Razumov - Head of Onexim Group
Aggregate compensation from the company for the year - $ 15 million.
8th place... Ivan Streshinsky - Head of USM Advisors
Aggregate compensation from the company for the year - $ 15 million.
9th place... Vladimir Yakunin - President of JSC Russian Railways
Aggregate compensation from the company for the year - $ 15 million.
10th place... Mikhail Zadornov - Chairman of the Board, President of VTB24
Aggregate compensation from the company for the year - $ 15 million.

Rating of proposals for the position of heads of companies in Moscow

• 1. Head of a real estate agency - up to 500 thousand rubles.
• 2. The head of a large company 300-450 thousand rubles.
• 3. Head of the late collection department - about 350 thousand rubles.
• 4. Commercial manager - 300-400 thousand rubles.
• 5. Head of the Executive Directorate - starting from 300 thousand rubles.
• 6. Deputy head for work with federal networks - starting from 300 thousand rubles.
• 7. Head of procurement - up to 300 thousand rubles.
• 8. Head of the marketing department - up to 300 thousand rubles.
• 9. BTL manager - up to 300 thousand rubles.
• 10. Product manager in a fashion company - up to 300 thousand rubles.

Rating of proposals for the position of heads of companies in Kazan

• 1. Head of ATP - 95-125 thousand rubles.
• 2. Head of 1C projects - from 100 thousand rubles.
• 3. Deputy Branch Manager - 75-120 thousand rubles.
• 4. Technical manager in the printing industry - 65-120 thousand rubles.
• 5. Regional manager (pharmaceuticals) - starting from 90 thousand rubles.
• 6. Head of a branch of a leasing company - 75-100 thousand rubles.
• 7. Regional sales manager - starting from 80 thousand rubles.
• 8. Deputy Head - 55-100 thousand rubles.
• 9. The head of the branch - 55-95 thousand rubles.
• 10. Head of a regional branch - starting from 70 thousand rubles.

Even top managers of large corporations cannot afford such a means of transportation as Abramovich's yacht. You can be proud - the Russian oligarch has the most expensive yacht on our planet -

How much do managers receive on average across the country

In the proposals of employers, the average size of requests for the country is listed as a request of 60,000 rubles.

In the proposals of applicants, the average size of requests for the country appears to be a request of 73,000 rubles.

How much do managers get in the regions

The income of the heads of the organization will differ greatly depending on the company itself, the skills and experience of the leader and the region of work.

So for a financial manager with the following skills and experience:

1) Higher education.

2) Knowledge of tax and accounting legislation.
3) Knowledge of methods of analysis of financial and economic activities.

4) Practical skills and knowledge in the field of tax, accounting and management accounting.

5) Work experience as the head of the economic department at least 2 years.

6) Experience in passing audit and tax audits in the regions

the following offers apply.

• 1. Moscow - 70-100 thousand rubles.
• 2. St. Petersburg - 65-90 thousand rubles.
• 3. Volgograd - 40-55 thousand rubles.
• 4. Voronezh - 40-60 thousand rubles.
• 5. Kazan - 40-60 thousand rubles.
• 6. Yekaterinburg - 55-75 thousand rubles.
• 7. Krasnoyarsk - 50-70 thousand rubles.
• 8. Nizhny Novgorod - 40-55 thousand rubles.
• 9. Novosibirsk - 45-65 thousand rubles.
• 10. Perm - 40-60 thousand rubles.
• 11. Rostov-on-Don - 40-60 thousand rubles.
• 12. Omsk - 45-60 thousand rubles.
• 13. Samara - 40-60 thousand rubles.
• 14. Rostov-on-Don - 40-60 thousand rubles.
• 15. Chelyabinsk - 45-65 thousand rubles.
• 16. Ufa - 40-60 thousand rubles.

Naturally, the lowest incomes of managers are found in regions with a low developed industry and other industries. First of all, this concerns the republics of the North Caucasus.

Expectation of income increase in 2015

On November 24, 2014, Anton Siluanov, Minister of Finance of the Russian Federation, made a statement at an economic forum that Russians will have to learn to live in a completely new economic paradigm and "tighten their belts." The time has come for the implementation of complex decisions, as well as the abandonment of "extra budget spending."

This means that the income of most heads of state-owned companies will grow slowly or frozen. The incomes of the heads of private companies, on average, should grow by several percent.

Is it customary in Russia to refer to the salaries of oil workers, and especially employees, both ordinary employees and top management, headed by Miller?

Video: What should be the ideal leader?

A limited liability company is a legal entity that is established by one or more participants. Therefore, entrepreneurs often have a question whether a salary is provided for the director of an LLC. Let's find out how to proceed depending on the situation.

If the director is an employee

The founder of the LLC or a group of founders (if there are several of them) have the right to invite the head of the company from outside. In this case, an employment agreement is concluded between the director and the organization. Consequently, the LLC pays the director a salary, like any employee. At the same time, the company's shareholders receive profit in the form of dividends.

Leader - one of the founders

The founder, who performs the duties of the manager, also signs an employment contract with the LLC, which means he is considered an employee of the company. Moreover, in the agreement the signature of the employer belongs to another member of the association. It may seem that such manipulations are unnecessary and it is quite possible to do without them, but this is not so. Without a manager, any enterprise is considered unviable, because in this case there is simply no one to sign the company's documentation. The founder who is appointed to the position of director has every right to receive both salary and dividends.

If the director is chosen from among the founders, then the company must pay him a salary and conclude an employment contract with him without fail.

Leader and sole founder are one person

If the duties of the director are performed by the only member of the LLC, this case should be considered separately. It should be noted that this option is the most common of all. How to be here when drawing up a contract? Can a society hire its own founder as a director? Most likely no. Agree, it would be strange if the employer and the employee had the same signature. But this does not mean that labor relations are not destined to take place.

An employee is considered hired both from the moment of signing the contract and after starting his duties. It turns out that the founding director is a self-proclaimed leader. The only document regulating this issue is the order. Do I need to pay wages in a similar situation? According to Art. 21 of the Labor Code of the Russian Federation, this must be done.

Since the amount of remuneration is stipulated by an employment agreement, and this document in our case is not drawn up, the salary is noted in the staffing table. It would seem, what is the latter for, if the employee and the manager are the same person? It turns out that this document is required in any case. Otherwise, the very first inspection of the labor inspectorate will bring many problems.

If the director and the only founder are one person, then an appropriate order must be issued, and the salary must be noted in the staffing table.

With regard to income, the CEO in this case can receive both a salary and dividends. Many succumb to the temptation not to pay salaries to themselves, but to issue only dividends. Then the contributions disappear and the personal income tax rate decreases. But it is illegal to receive dividends on the "when you want" principle.

First, they are paid only under certain conditions:

• Accrued 1 time in 3 months from the amount of income after payment of all taxes and only on the basis of the order signed by the head.
• The payment is made when the authorized capital of the company is fully covered, the enterprise is not threatened with ruin and the assets do not become less than the capital of the association.

Secondly, if the general director nevertheless begins to pay dividends at his own discretion, then the tax authority may well re-qualify these accruals into salaries.

It is important to note that regardless of whether the director and the founder are one person or not, the manager will have to charge money for the work done in any case. Otherwise, when trying to save money, you can make a big mistake. So, if the LLC has not entered into an employment agreement with its manager or has drawn up this document incorrectly, the company will be fined from 50,000 to 100,000 rubles, and the director - from 10,000 to 20,000 rubles.

Speaking about the salary of the director of an LLC, it should be mentioned that its maximum value is not limited, but the minimum limit is strictly fixed. For example, from January 1, 2017, the minimum wage is equal to 8,800 rubles.

Thus, there are several options for the design of the head of an LLC, and in each case - its own characteristics of payroll. You can hire a director, and then there will be almost no questions about labor relations. You can choose a leader from among "your own" or be a member and director in one person. The main thing is to arrange everything correctly and conduct business honestly, so that instead of the expected profit, you do not incur unforeseen losses.

In practice, there are often situations where the CEO is the sole founder. At the stage of company development, you always want to save money, including on paying your own salary and "salary" taxes, as well as by drawing up zero reporting, so as not to spend money on complex accounting.

But if the salary is paid even at the "minimum wage" (in Moscow - 16,500 rubles), then taking into account the income tax and contributions to funds, "salary" costs will amount to about 23,500 rubles. For many at the stage of business formation, even this amount is very significant. In addition, when calculating wages, there can be no question of any "zero" reporting - reporting will have to be drawn up, not only for the IFTS, but also for funds (FSS and PFR). And this will lead to additional financial costs.

In this regard, the question arises: does the sole founder, who is the general director, need to conclude an employment contract and pay himself a salary, or can you somehow do without it?

Let's start with the fact that the legislation of the Russian Federation does not provide for any clause or article, which would directly say that the sole founder-CEO is allowed not to pay wages. At the same time, there is no norm in the legislation obliging it to pay. All justifications for the possibility of not paying salaries are based on the interpretation of the legislation and explanatory letters of the departments.

Let's figure it out.

Do I need an employment contract?

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

That is, the law directly says: if the head is the only founder, then the norms of labor regulation of the head of the organization do not apply to him. Including the provisions of Article 275 of the Labor Code of the Russian Federation on the conclusion of an employment contract with the head.

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

Clarifications on this situation are given by Rostrud in a letter dated 06.03.2013 No. 177-6-1. And this is how the officials reason.
An employment contract is a bilateral agreement between an employee and an employer. Each of the parties to the contract assumes certain obligations. The employee is obliged to perform labor functions in accordance with the established procedure. The employer must provide appropriate working conditions. In the absence of one of the parties, the contract cannot be concluded. Therefore, if the founder and the manager are one person, there is no need to conclude an employment contract.

The possibility not to conclude an employment contract was confirmed by the Ministry of Finance of Russia in its letter dated 19.02.2015 No. 03-11-06 / 2/7790. The department also believes that the director cannot sign an employment contract with himself. And since there is no contract, then there are no grounds for paying salaries.

In our opinion, there can be no violation of the law in the fact that the general director works, but there is no labor contract, since the duties of a director are one thing, and labor relations with an employee are another. The CEO is obliged to act on behalf of the organization on the basis of the Articles of Association and does not have to enter into an employment relationship with his company.

In our opinion, not having an employment contract is the safest way to avoid paying the director's salary.

Thus, labor relations, which imply the payment of salaries, are not needed for the CEO to perform his functions as the sole executive body. The CEO can fulfill his functions on the basis of the order of assumption of office and the Charter.

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

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

There are no questions even in a situation where the CEO is not the only founder. In such situations, an employment contract can and should be concluded. Some of the founders can sign it.

How to justify non-payment of wages

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

• Dividends instead of salaries

If a decision is made to pay the founding director only dividends, the general rules for processing such payments must be followed. Payments must be made:

• no more than once a quarter;
• at the expense of the organization's net profit remaining after all taxes have been paid;
• based on the owner's decision.

• All profits are for development

There is also a way not to pay wages in the presence of an employment contract, namely:

• Indefinite leave without pay

• the statement of the general director on granting him unlimited leave without pay;
• an order to grant the general director an indefinite leave at his own expense.

Way to save

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

Summing up the above, I would like to say that in our practice cases of imposition of penalties in the absence of an employment contract or non-payment of salaries to the director are extremely rare. Therefore, we believe that it is not worth wasting time on processing a large number of unnecessary documents and worrying about responsibility for the fact that the founding CEO does not receive a salary.