What are the risks of transfers to SP. How can you transfer an LLC to an individual entrepreneur: all the nuances of such a reorganization. Execution control

I have already spoken about this in my articles and now there is one more reason to remember my main thesis. The days of documentary tax optimization are gone. This time, the reason was the decision of the Supreme Court in case No. А58-547 / 2016, which refused the taxpayer to review his case and upheld the decisions of all three instances.

One of the most widespread tax optimization schemes was the subject of the proceedings. The employer, in order to save on salary taxes and fees, registered all of his employees, except for the director, as individual entrepreneurs. Judging by the materials of the case, the taxpayer did not re-engineer the business processes, relying on the quality of the documentary side of his tax scheme. His main arguments in court were the lack of document flow provided for by the Labor Code of the Russian Federation (labor contracts, work books, orders, sick leave, timesheets, etc.) and the absence in the contracts between the taxpayer and the individual entrepreneur of the essential terms of the labor contract provided for in Art. 57 of the Labor Code of the Russian Federation.

The IFTS “unwound” the company's business processes and submitted to the case materials the results of surveys and examinations, indicating that:

1. payment for the services rendered occurred regularly, on the same dates of each month, the amount of payment during the year did not change or changed slightly, did not depend on the result of the services;

2. in fact, all services were performed by individual entrepreneurs during the company's working hours: every day except Sunday from 9-00 to 18-00, with a lunch break from 13-00 to 14-00;

3. all workplaces of individual entrepreneurs are equipped by the employer at their own expense and employees use this property free of charge;

4. the statements of all individual entrepreneurs were submitted by the taxpayer's representative;

5.Some employees during interrogations showed that the employer was the initiator of their registration as an individual entrepreneur, some of them could not explain the type and essence of their business activities, none of them had other clients, they did not search, employees who terminated cooperation with the company immediately closed their IP.

The courts of all instances took the side of the tax authority, noting that tax obligations stem not from the name of the agreement, but from the actual essence of the legal relationship. When a person cannot explain the essence of entrepreneurial activity, the desire to engage in which prompted him to register as an individual entrepreneur, then what kind of civil law relations can we talk about?

Does this mean that the tax scheme with the transfer of employees to individual entrepreneurs has ceased to be working? Of course not. This only means that a thorough preparation of documents for the tax scheme will not help anything if the document flow is not confirmed by real business processes. Consequently, the tax benefit arising from such a workflow will be declared illegal in court. Document flow should not mask real transactions, but should complement and confirm them.

Example: taxi business. The most common pattern of drivers' work is: “do what you want, but hand over the day plan”. Even in the presence of some limiting factors (politeness, cleanliness of the passenger compartment and car), the driver actually conducts an independent activity and the amount of income depends on himself. In this case, competent paperwork will make the mission of the tax authority to fill the budget impracticable.

But not in every business, as in a taxi, business processes are tailored for tax optimization schemes. Typically a business is configured based on cost efficiency.

Algorithm for competent tax optimization:

Despite the fact that since July 1, 2016, the minimum wage has increased to 7,500 rubles, individual entrepreneurs take the previous data in the calculation of contributions (6204 rubles).
The manager's salary should not exceed tenfold the salary of other employees. For comparison, the average salary for the year will be taken into account and all allowances, compensations and other motivational payments as well. If the requirement is not met, all excess money will be distributed among the company's employees in proportion to their wages.

There are methods to reduce taxes on the payroll fund (hereinafter POT), without resorting to tax crimes and evasion of payments. Our company invites you to consider one of them - the redistribution of payroll in other forms that are subject to lower tax rates. We propose to take as a basis the option when an employee of the company is registered as an individual entrepreneur (hereinafter referred to as an individual entrepreneur), applying the simplified taxation system and having chosen the object of taxation “income” (6%).

What will the organization achieve by applying this scheme?

First, an increase in official income: the income of an individual entrepreneur from which he pays tax is 6%, and not 13%, as it should be with personal income tax
Second, the company's contribution costs disappear completely.
Third, the problem with cashing disappears, unlike an organization, an individual entrepreneur has the right to cash out the income received for his own needs in full after paying a tax of 6%.

Of course, the Central Bank, in conjunction with the tax authorities, are trying in every possible way to reduce this opportunity, erecting all kinds of obstacles. At the moment, there is no law that would limit this opportunity. The main thing is to correctly draw up documents and observe an important rule - economic feasibility. You can independently analyze and verify the effectiveness of the new scheme (see table. 1).

Where is the benefit?

Due to the fact that an individual entrepreneur does not hire employees, he is obliged to pay insurance premiums to extra-budgetary funds based on the cost of the insurance year (clause 1, article 14 of Law N 212-FZ). In 2016, this cost is 6,204 rubles (twelve times the minimum wage).

insurance premiums to the Pension Fund for yourself: 6,204 * 26% * 12 \u003d 19,356 rubles 48 kopecks
contributions to the FFOMS for oneself: 6,204 * 5.1% * 12 \u003d 3,796 rubles 85 kopecks
total contributions for myself for 2016: 23,153.33 rubles, and this is for the entire calendar year.

This is the completely legitimate savings on payroll fees, which reaches 15 percent.

Example:

PI 6%		Employee on staff
Employee costs	Company costs	Employee costs	Company costs
Single tax 19,711.66 + PFR 7,288.34	-	Month 19,500.00 (personal income tax)	Contributions per month 45,300.00
Year 108,000.00	-	Year 234,000.00	Year 391 742,00
Total for the year: 108,000.00		Total for the year: 625,742.00 rubles *

* Detailed calculation of the total amount

-	-	-	-
january	150 000,00	150 000,00	45 300,00 (150 000 * 30,2%)
february	150 000,00	300 000,00	45 300,00 (150 000 * 30,2%)
march	150 000,00	450 000,00	45 300,00 (150 000 * 30,2%)
april	150 000,00	600 000,00	45 300,00 (150 000 * 30,2%)
may	150 000,00	750 000,00	44 372,00 (118 000 * 30,%2+32 000 * 27,3%)
june	150 000,00	900 000,00	28 470,00 (46 000 * 27,3%+104 000 * 15,3%)
july	150 000,00	1 050 000,00	22 950,00 (150 000 * 15,3%)
august	150 000,00	1 200 000,00	22 950,00 (150 000 * 15,3%)
september	150 000,00	1 350 000,00	22 950,00 (150 000 * 15,3%)
october	150 000,00	1 500 000,00	22 950,00 (150 000 * 15,3%)
november	150 000,00	1 650 000,00	22 950,00 (150 000 * 15,3%)
december	150 000,00	1 800 000,00	22 950,00 (150 000 * 15,3%)
		391 742,00

A few words about costs and "tax holidays"

When working, it is important to consider two important points:

one-time expenses of an employee for opening an individual entrepreneur - the cost of opening 8,000.00 rubles;
costs of servicing individual entrepreneurs, delivery of reports and calculation of taxes - 5,000.00 rubles per quarter.

An individual entrepreneur for certain types of activities since 2015 has the right to use a zero tax rate under the simplified tax system, but only in the first two years. "Tax holidays" stipulate a prerequisite - not to deduct the income of insurance premiums at the facility under the simplified tax system. If your income from preferential activities at the end of the year turns out to be less than 70%, then you, as an individual entrepreneur, will automatically lose the right to apply the zero rate.

The advantages of working with an individual entrepreneur:

real optimization of tax payments from wages;
the employee is quickly drawn up as an individual entrepreneur, since the procedure is now simplified and a minimum package of documents is needed;
you can pay in cash;
the possibility of applying "tax holidays" for certain types of activities;
a civil contract allows you to add additional requirements that were prohibited under the employment contract.

disadvantages of working with an individual entrepreneur Disadvantages of working with an individual entrepreneur:

widely known and has a negative attitude among employees of the tax inspection;
labor intensity in the implementation of this "salary project":
- dismissal, preparation of personnel orders, filling out a labor book;
- preparation of a special agreement;
- acceptance of an employee as an individual entrepreneur, again preparation of personnel orders, filling out a labor book;
reporting falls on the shoulders of an employee (who needs to be trained and regularly advised on tax reporting) or it is necessary to allocate a separate staff of employees involved in this work, and this, in turn, leads to additional costs for the company;
monthly form and sign acts of delivery / acceptance of work performed;
employees may feel mistrust (they lose an entry in the work book) and risk (the likelihood of getting a loan is very low, deprivation of social benefits), which need to be covered with legal advice and, in some cases, an increase in the level of wages.

risks of working with individual entrepreneurs Tax risks for the company:

the tax office may not believe and re-qualify a civil law contract into a classic labor contract;
the more people take part in the "new scheme", the more attention you will attract from the regulatory authorities;
the presence of a permanent and well-equipped workplace;
regulation of relationships unilaterally.

What conclusion can be drawn?

It is possible to forget about the payment of salaries by the "black" method by all 99%. And 1% will always be present, since not everyone is ready to take risks and "get out of their comfort zone", and this must be taken into account. If you are serious about optimizing payroll taxes, you need to think carefully about all the answers to possible objections from employees and show them what they can get in return.

Go for it! If you have any questions or want to get advice from an accountant, please contact us, you will receive professional support!

The IFTS “unwound” the company's business processes and submitted to the case materials the results of surveys and examinations, indicating that:

2. in fact, all services were performed by individual entrepreneurs during the company's working hours: every day except Sunday from 9-00 to 18-00, with a lunch break from 13-00 to 14-00;

3. all workplaces of individual entrepreneurs are equipped by the employer at their own expense and employees use this property free of charge;

4. the statements of all individual entrepreneurs were submitted by the taxpayer's representative;

But not in every business, as in a taxi, business processes are tailored for tax optimization schemes. Typically a business is configured based on cost efficiency.

Algorithm for competent tax optimization:

Can an employee of a company be an IP worker?

Vladimir SKOKOV Partner of the law firm "Subscriber Consult"

Is it possible that the employer, having received a power of attorney from his former employee to use his individual entrepreneur, conducts millions of transactions through his account and does not pay taxes. And can, as a result, a person who has given a power of attorney to use their individual entrepreneurs have problems with the tax office?

The situation when a former employer, by proxy, wrapped goods worth millions of rubles is quite real. Of course, the employer took advantage of the ignorance of the law and the credulity of his former employee. A citizen for whom an individual entrepreneur issues a power of attorney is legally an extension of the will of the principal. That is, everything that the attorney signs and does on behalf of the entrepreneur is formally considered to be done by the principal himself.

In this situation, one can only advise the indebted entrepreneur to write a statement to the police for the former employer. If you convince the law enforcement agencies that in fact the trade was carried out by the former employer, hiding behind the former employee's entrepreneur in order not to pay taxes, then, perhaps, tax prosecutions will switch to the actual organization of the former employer.

Is it legal to work for a person in the state and be an individual entrepreneur?

Yes, it is legal. This is the most common way to optimize insurance premiums and personal income tax on employees. An individual entrepreneur on a simplified system can pay only 6% of turnover (instead of 13% of personal income tax), and an individual entrepreneur always pays insurance premiums for himself once a year, and the amount of contributions is clearly lower than if the employer paid them as an employee.

Transferring employees to individual entrepreneurs is a tax risk for the employer. According to the tax authorities, the following facts are suspicious:

Employees are successively fired, registered as individual entrepreneurs and enter into contracts with a former employer;

The former employer constantly concludes the same contracts with the same contractors and individual entrepreneurs.
Such contracts, as a rule, are concluded for a long term or indefinitely;
The organization enters into contracts with entrepreneurs who are already its full-time employees;
The former employer enters into contracts with individual entrepreneurs en masse;
For former employees of individual entrepreneurs, the employer is the only client.

What problems can an employee have when he moves from state to individual entrepreneur?

Legally, from the moment of signing a civil contract between the former employer and the newly-made individual entrepreneur, the parties become equal - both carry out business activities. The Labor Code of the Russian Federation with all guarantees for the employee ceases to apply to the parties, the Civil Code of the Russian Federation and other laws begin to apply.

Accordingly, an individual entrepreneur cannot count on maternity leave, annual paid leave, sick leave, compensation and benefits. Unlike an employee, an individual entrepreneur can say goodbye at any time by terminating a civil contract. For the dismissal of an employee (at least formally), the employer needs good reasons.

The simplest form of creating a legal entity in our time is a limited liability company. However, in some cases, it may be necessary to change the organizational and legal form of the enterprise to an even simpler one, without forming a legal entity, that is, registration as an individual entrepreneur. And a logical question arises, how to transfer an LLC to an individual entrepreneur, can this be done?

The advantages of an individual entrepreneur and possible reasons for the transformation from an LLC

Most people give preference to individual entrepreneurs, as there are fewer requirements and attention from fiscal services to such enterprises. Registration of the sole proprietor costs almost a penny - about 800 rubles. The form of entrepreneurship allows you to work on a simplified taxation system, draw up a minimum amount of accounting documentation.

In addition, a businessman may not plan the further development of a business that exists in the form of an LLC, but does not want to close it either. In this case, the question may also arise of how you can switch from LLC to individual entrepreneur.

What is LLC

A limited liability company is a commercial enterprise with the formation of a legal entity and with the main purpose of making a profit. Compared to the same individual entrepreneur, LLC has a much higher status, and partners have more confidence in this organizational and legal form.

One participant can also create a society, this is not prohibited by current legislation. Although to open a legal entity, you will have to draw up many documents, including the charter. The state registration fee is about 4 thousand rubles. The founder of the LLC will have to take care of accounting and tax accounting. In addition, you will have to form and pay for the authorized capital, which should not be less than 10 thousand rubles. The upper bar is not limited and is determined by statutory documents. The minimum amount of capital will have to be paid in cash. At the time of registration, the authorized fund must be filled at least by ¾. Capital is a guarantee for third parties that in the event of bankruptcy or liquidation of an LLC, it will be able to pay off its debt obligations.

Legal requirements

At the level of legislation, it is not provided for the possibility of transferring directly from an LLC to an individual entrepreneur. A limited liability company can only be reorganized into another legal entity. An individual entrepreneur is an individual, therefore, reorganization is impossible.

Solutions to the problem

The question arises whether it is possible to switch from an LLC to an individual entrepreneur if the procedure is not provided for at the legislative level. In fact, if you act according to certain rules, then you can carry out the so-called reorganization, even without attracting special attention from the regulatory authorities.

How to transfer an LLC to an individual entrepreneur - the procedure:

The founder is registered as an individual entrepreneur. To do this, you just need to submit an application on the P26001 form and a passport with the tax number of the applicant. Pay the state fee and in 5 working days get your hands on confirmation of registration as an individual entrepreneur.
Dismiss or transfer personnel from LLC.
Re-register the property.
Liquidate a legal entity.

Staff reduction

If the transfer of LLC employees is not planned to an individual entrepreneur, then the staff must be reduced. When deciding how to switch from an LLC to an individual entrepreneur, you cannot do without this, and so that no penalties are imposed, the entire procedure should be followed.

The Labor Code obliges the management of the enterprise to notify all personnel of the upcoming release two months in advance of layoffs. To do this, you will have to draw up written notices and send them to all employees against signature. The basis for the reduction in this case is the liquidation of the enterprise.

In parallel with informing employees, you will need to notify the employment service. After a two-month period, personnel are dismissed according to the standard procedure with the issuance of a work book and a full payroll.

It should be remembered that with the simultaneous release of more than 15 employees, the reduction will be regarded as massive. In this case, the notice periods are extended by another 1 month.

When an enterprise is liquidated, everyone can be fired, even those who are on sick leave or on vacation.

And the most interesting thing is that the reduction procedure also implies the possibility of paying the staff 2 months after they quit, if the employees did not find a job.

Transfer of employees to individual entrepreneurs

In this case, the normative acts do not provide for the possibility of directly transferring personnel, which must be taken into account before switching from LLC to individual entrepreneur. To begin with, employees leave the LLC and are accepted the next day to an individual entrepreneur. The procedure is standard and does not require additional explanation.

The main thing to remember, in order not to attract the attention of regulatory authorities, is not to transfer all personnel on one day, especially if there are more than 15 employees.

Property transfer

Perhaps this is the most sensitive part of the question of how to switch from an LLC to an individual entrepreneur. The easiest way, of course, if the founder is one, and there are no claims of creditors, just go through the liquidation procedure and receive all the property as an individual.

Another option is to sell or donate the most liquid property to an individual entrepreneur.

Sale of LLC

Alternatively, you can sell the business. Naturally, it will first be necessary to withdraw all assets and transfer them in favor of an individual entrepreneur or an individual. If there is staff, then you will have to say goodbye to him, if necessary, take him to an open IP. Now you can put up an LLC for sale, or rather, transfer corporate rights to a third party for payment or assign it free of charge. The only thing is that no activity should be carried out at the LLC, and the balance sheet should be empty, that is, in fact, you will have to prepare for the sale of the enterprise in advance. By the way, an LLC with a “zero balance” can be closed at the initiative of the tax authorities, but on condition that the absence of economic activity lasts at least 12 months.

Reverse situation

Along with how to switch from LLC to individual entrepreneur, many people are interested in the opposite question.

If we consider terms, then an individual entrepreneur is an individual. LLC is an organizational and legal form with the formation of a legal entity, therefore, there is no possibility of reorganization.

The transition from LLC to individual entrepreneur and vice versa is not provided for by current legislation, but there is always a way out, and not even one:

close the individual entrepreneur and create a legal entity;
become a member of an existing LLC;
without closing your IP, open an LLC and become its only participant.

Common problems when reissuing

The biggest problem that most people forget before converting an LLC into an individual entrepreneur is that they have borrowed funds or other debts. But the liquidation procedure provides for a clear line to satisfy claims.

Debt repayment order:

all claims to individuals that have arisen against the background of harm to their health or life are extinguished;
all wage arrears are paid;
repayment of debts to the state;
satisfaction of the claims of all other creditors.

The most important thing is that until the claims of one priority are fully settled, payments will not be made to other creditors. The only exception is if the debt is secured by a pledge, then the borrowers have the preferential right to repay the debt, with the exception of persons standing in the first and second priority.

Another common problem is the presence of funds in the hands of the founders, which were taken from the enterprise on account of the report or as a loan. What to do in such a situation, is it possible not to return the funds? It is possible, but only in this case you will have to pay income tax on these funds, but if we are talking about a large amount?

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