What threaten 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 recall my main thesis. The days of documentary tax optimization are gone forever. This time it was the decision Supreme Court in case No. A58-547 / 2016, which refused to review the taxpayer's case and upheld the decisions of all three instances.

The subject of the proceedings was one of the most common tax optimization schemes. The employer, in order to save on payroll taxes and fees, registered all of its employees, except for the director, as individual entrepreneurs. Judging by the materials of the case, the taxpayer did not do business process reengineering, relying on the quality of the documentary side of his tax scheme. His main arguments in court were the absence of the document flow provided for by the Labor Code of the Russian Federation (employment contracts, work books, orders, sick leave, time sheets, etc.) and the absence of essential conditions in the agreements between the taxpayer and the individual entrepreneur employment 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 file the results of surveys and inspections, 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: daily 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. reporting of all individual entrepreneurs was submitted by a representative of the taxpayer;

5. Some employees during interrogations showed that the employer initiated 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 were not engaged in the search, employees who stopped cooperating with the company immediately closed their IP.

Courts of all instances took the side of the tax authority, noting that tax obligations do not follow from the name of the agreement, but from the actual essence of legal relations. 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 careful preparation of documents for the tax scheme will not help if the document flow is not confirmed by real business processes. Consequently, the tax benefit arising from such a document flow will be recognized in court as illegal. The workflow should not mask real operations, but should supplement and confirm them.

Example: taxi business. The most common scheme for drivers to work is “do whatever you want, but hand over the daily plan”. Even if there are some limiting factors (politeness, cleanliness of the interior and car), the driver actually conducts an independent activity and the amount of income depends on him. In this case, competent paperwork will make the mission of the tax authority to fill the budget impossible.

But not in any business, like in a taxi, business processes are tailored for tax optimization schemes. Typically, a business is configured based on economic efficiency.

Algorithm for competent tax optimization:

Despite the fact that from July 1, 2016, the minimum wage increased to 7,500 rubles, individual entrepreneurs take the same data (6,204 rubles) in calculating contributions.
The manager's salary should not exceed ten times wages the rest of the workers. For comparison, we will take into account average salary for the year 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 salary.

There are methods to reduce taxes from the payroll fund (hereinafter referred to as the payroll), without resorting to tax crimes and payment evasion. Our company invites you to consider one of them - the redistribution of payroll to 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 individual entrepreneur(hereinafter referred to as IP), applying the simplified taxation system and choosing 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 expenses for contributions completely disappear.
Thirdly, the problem with cashing out 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 6% tax.

Of course, the Central Bank, together with the tax authorities, are trying in every way to reduce this possibility, putting up all sorts of obstacles. At the moment there is no law that would limit this possibility. The main thing is to correctly draw up documents and comply with important rule- economic feasibility. You can independently analyze and verify the effectiveness of the new scheme (see Table 1).

What results in a benefit?

Due to the fact that an individual entrepreneur does not hire workers, he is obliged to pay insurance premiums to off-budget 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 yourself for 2016: 23,153.33 rubles, and this is for the entire calendar year.

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

Example:

IP 6%		employee in the state
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 IP - the cost of opening 8,000.00 rubles;
the cost of servicing individual entrepreneurs, submitting reports and calculating taxes - 5,000.00 rubles per quarter.

Since 2015, individual entrepreneurs for certain types of activities have the right to use the zero tax rate under the simplified tax system, but only in the first two years. "Tax Holidays" required condition- do not deduct on the simplified tax system at the facility the income of insurance premiums. If your income from a preferential type of activity 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.

Advantages of working with an individual entrepreneur:

real optimization of tax payments from wages;
the employee is quickly registered 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 law contract allows you to add additional requirements that were prohibited under an 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 inspectorate;
the complexity in the implementation of this "salary project":
- dismissal, training personnel orders, filling out a work book;
- preparation of a special agreement;
- accepting an employee as an individual entrepreneur, again preparing personnel orders, filling out a work 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;
workers may feel mistrust (losing an entry in the work book) and risk (the probability of obtaining a loan is very low, deprivation of social benefits) that need to be covered legal advice and, in some cases, wage increases.

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

the tax authority may not believe and re-qualify a civil law contract as 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 equipped workplace;
regulation of relationships unilaterally.

What can be the conclusion?

Forgetting about paying salaries using the “black” method is 99% possible. 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're serious about optimizing your payroll taxes, you need to think carefully about all the possible objections your employees might have and show them what they can get in return.

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

I have already spoken about this in my articles and now there is one more reason to recall my main thesis. The days of documentary tax optimization are gone forever. 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.

The subject of the proceedings was one of the most common tax optimization schemes. The employer, in order to save on payroll taxes and fees, registered all of its employees, except for the director, as individual entrepreneurs. Judging by the materials of the case, the taxpayer did not do business process reengineering, relying on the quality of the documentary side of his tax scheme. His main arguments in court were the absence of the document flow provided for by the Labor Code of the Russian Federation (employment contracts, work books, orders, sick leave, time sheets, etc.) and the absence in the contracts between the taxpayer and the individual entrepreneur of the essential conditions of the employment 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 file the results of surveys and inspections, indicating that:

2. in fact, all services were performed by individual entrepreneurs during the company's working hours: daily 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. reporting of all individual entrepreneurs was submitted by a representative of the taxpayer;

But not in any business, like in a taxi, business processes are tailored for tax optimization schemes. Typically, a business is configured based on economic efficiency.

Algorithm for competent tax optimization:

Can a company employee be an IP?

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 IP, conducts millions of transactions through his account and does not pay taxes. And as a result, can a person who has given a power of attorney to use his IP have problems with the tax?

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 gullibility of his former employee. A citizen to whom an individual entrepreneur issues a power of attorney is legally a continuation 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 against the former employer. If you convince law enforcement that in fact the trade was carried out by the former employer, hiding behind the IP former employee not to pay taxes, then perhaps tax prosecutions will switch to the actual organization of the former employer.

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

Yes, it's legal. This is the most common way to optimize insurance premiums and personal income tax for employees. An individual entrepreneur on a simplified system can pay only 6% of the 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 they were paid by the employer as an employee.

The transfer of employees to individual entrepreneurs is tax risk for the employer. According to the tax authorities, the following facts are suspicious:

Employees consistently quit, register as individual entrepreneurs and enter into contracts with a former employer;

The former employer constantly concludes the same contracts with the same contractors and IP performers.
Such contracts are usually 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;
At former employees Sole Proprietor is the only client.

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

Legally, from the moment of signing a civil law contract between the former employer and the newly minted individual entrepreneur, the parties become equal - both carry out entrepreneurial activity. Labor Code RF with all the guarantees for the employee ceases to apply to the parties, begins to apply Civil Code RF and other laws.

Accordingly, the IP cannot rely on maternity leave, for annual paid leave, for sick leave, for compensation and benefits. Unlike an employee, you can say goodbye to an individual entrepreneur at any time by terminating a civil law contract. To dismiss an employee (at least formally), the employer needs a good reason.

The simplest form of creation legal entity in our time is a society with limited liability. However, in some cases, it may be necessary to change the legal form of the enterprise to an even simpler one, without the formation of a legal entity, that is, registration as an individual entrepreneur. And a logical question arises, how to transfer an LLC to an individual entrepreneur, is it possible to do this?

Advantages of an individual entrepreneur and possible reasons for converting from an LLC

Most people prefer individual entrepreneurs, since there are fewer requirements and attention from the fiscal services for such enterprises. Registration of the IP itself 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. In this case, the question may also arise, how can you switch from LLC to IP.

What is LLC

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

One participant can also create a company, this is not prohibited current legislation. Although, to open a legal entity, you will have to draw up a lot of documents, including the charter. The state registration fee is approximately 4,000 rubles. The founder of the LLC will have to take care of the accounting and tax accounting. In addition, you will have to form and pay authorized capital, which should not be less than 10 thousand rubles. The upper bar is not limited and is determined by the statutory documents. The minimum amount of capital will have to be paid in cash. At the time of registration, the statutory fund must be filled at least ¾. The capital is a guarantee for third parties that in the event of bankruptcy or liquidation, the LLC will be able to pay off its debt obligations.

Legal requirements

At the level of legislation, it is not possible to transfer directly from an LLC to an individual entrepreneur. A limited liability company may be reorganized exclusively into another legal entity. An individual entrepreneur is an individual, so reorganization is not possible.

Solutions to the problem

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

How to transfer an LLC to an IP - procedure:

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

Staff reduction

If the transfer of LLC employees is not planned to IP, then the staff must be reduced. When deciding how to switch from an LLC to an individual entrepreneur, one cannot do without it, and so that penalties are not 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 before the reduction. To do this, you will have to create written notices and hand them over to all employees against signature. The reason 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, the staff is dismissed according to the standard procedure with the issuance work book and complete payroll processing.

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 period is 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 staff for 2 months after they left if the employees did not find a job.

Transfer of employees to IP

In this case regulations do not provide for the possibility of directly transferring personnel, which must be considered before moving from an LLC to an individual entrepreneur. To begin with, employees are dismissed from the LLC and the next day they are accepted to an individual entrepreneur. The procedure is standard and does not require additional explanations.

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

Transfer of property

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 from creditors, simply 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 individual. If there is staff, then you will have to say goodbye to him, if necessary, accept him in an open IP. Now you can put up an LLC for sale, more precisely, transfer corporate rights to a third party for a fee 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 in advance for the sale of the enterprise. By the way, an LLC with a "zero balance" can be closed at the initiative of the tax authorities, but on the condition that the absence economic activity lasts at least 12 months.

Reverse situation

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

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

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

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

Common problems with re-registration

The most a big problem that most people forget before converting an LLC into an individual entrepreneur that they have borrowed funds or other debts. But the liquidation procedure provides for a clear queue for satisfying claims.

Order of repayment of debts:

all claims paid individuals that arose against the background of harm to their health or life;
all arrears of wages are paid;
repayment of debts to the state;
satisfying the claims of all other creditors.

Most importantly, until the claims of one queue are fully repaid, payments will not be made to other creditors. The only exception is if the debt is secured by collateral, then borrowers have a pre-emptive right to repay debts, with the exception of persons in the first and second turn.

Another common problem is the presence Money in the hands of the founders, which are taken from the enterprise under 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 what if it is a large amount?

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