The Federal Tax Service described the signs of illegal schemes involving the self-employed

The Federal Tax Service has developed signs for inspectors by which it is possible to identify the illegal use of self-employed companies to save on taxes. These include having a job,

To improve the effectiveness of desk audits, the Federal Tax Service (FTS) sent a letter to the territorial authorities, in which it listed the main signs indicating that companies use an illegal scheme to optimize the tax burden using the self-employed (professional income tax payers, PIT). The document, signed by the deputy head of the Federal Tax Service Alexander Yegorichev, is at the disposal of RBC, its authenticity was confirmed by a source familiar with the contents of the letter. RBC sent a request to the press service of the Federal Tax Service.

In 2022, the number of self-employed in Russia exceeded 4 million people. Against the backdrop of tightening Western sanctions since the end of February, their growth has not decreased, according to the Federal Tax Service. “Every day in March, more than 8.4 thousand people were registered as taxpayers on professional income. This is 12% more than in February,” the service notes. The increase in their total income in March 2022, according to the Federal Tax Service, was 12% compared to February.

What are the signs of illegal optimization

Companies have the right to conclude civil law contracts (GPC) with the self-employed. In this case, they do not need to pay personal income tax (13%) and insurance premiums (30%) for an employee-entrepreneur, and a self-employed person must transfer 6% of the income received to the budget. It is impossible to replace the employment relationship between the employer and the employee with a fictitious contract with the self-employed for the purpose of tax savings. If such a substitution is discovered, then contracts with the self-employed will be reclassified as labor contracts, companies will have to pay additional personal income tax and contributions to the budget, as well as pay fines.

In order to correctly reclassify civil law contracts into labor contracts and charge additional unpaid taxes, the Federal Tax Service recommends that tax inspectorates pay attention to the following possible evidence of an illegal scheme:

the subject of the contract fixes the labor function (that is, the performance by a person of a certain kind of work, and not a one-time task of the customer) and there are no indications of a specific amount of work (this indicates that the labor process itself, and not the result achieved, matters to the parties); the contract is not one-time, but systematic and is concluded for a year or until the end of the calendar year; the contract establishes a monthly salary, there are no changes in its amount throughout the year; the employee is included in the production activities of the company and bears financial responsibility; the contract provides for the subordination of the employee to the internal labor regulations, and its constituent element is the fulfillment of the employer's orders, for deviation from which the employee may be subject to disciplinary liability.

By such signs, it is possible to identify not only illegal relations with the self-employed, but also with individual entrepreneurs (IP), the letter says. This is especially clearly indicated by the situation when the condition for concluding an agreement is the registration of an individual as an individual entrepreneur, and when the receipt of funds from the customer stops, the individual entrepreneur stops the activity and is deregistered.

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Self-employed named the main difficulties and limitations in their activities Business

Among other possible evidence of the existence of real labor relations between the parties to the GPC agreement, the tax office names:

a issued pass to the territory of the employer and a register of the arrival and departure of employees to work; documents of the employer's personnel activities (work schedules, vacations, documents on sending an employee on a business trip, etc.); pay slips, cash disbursement statements, information on the transfer of funds to the employee's bank card; business documents (waybills, invoices, acts of work performed, visitor log, correspondence of the parties to the dispute, including by e-mail); documents on labor protection (logbook of registration and briefing at the workplace, certificate of verification of knowledge of labor protection requirements, referral of an employee for a medical examination, medical examination certificate); testimonies, audio and video recordings.

These circumstances are actively used by Russian courts when considering cases on the creation by a taxpayer of an illegal tax minimization scheme, follows from the letter.

This is not the first document of the Federal Tax Service concerning the illegal involvement of self-employed labor by companies. In September 2021, the service already issued a letter on the tax risks of working with payers of professional income tax. In it, she warned about the inadmissibility of the organizational and infrastructural dependence of the self-employed on the customer, as well as the establishment of a procedure for paying for goods and services, similar to the provisions of the Labor Code.

What threatens business

The letter from the Federal Tax Service summarizes the judicial practice on the re-qualification of GPC agreements into labor contracts, showing tax authorities what to look for, and companies what not to do, notes Alexander Zemchenkov, a leading lawyer in the tax disputes practice at Lemchik, Krupsky and Partners.

According to him, in order to identify the risks of violations when attracting self-employed people, a special information resource “Mobile Automated Workplace” (MAARM NPA) is currently working at the tax office. This is an analytical system that compares checks issued by the self-employed with a list of persons to whom these checks are punched. It allows you to track the frequency and amount of these checks, the frequency and duration of the self-employed with the same company, the number of customers for the NAP payer, as well as the number of employees and the average salary in the organization. If a company works with the same self-employed for more than three quarters, it automatically enters the system, Zemchenkov describes.

“According to the Federal Tax Service, such criteria as the regularity of payments (especially pay attention to twice a month), the work of a self-employed person with only one legal entity or individual entrepreneur, the income of a self-employed person comparable to the salary of employees, indicate the replacement of labor relations with work with the self-employed in order to save on personal income tax and insurance premiums,” the expert notes.

The press service of the Federal Tax Service confirmed to RBC that information on the income of the self-employed enters the control and analytical system online, which allows real-time analysis. On a quarterly basis, the system analyzes more than 20 parameters that may indicate the use of illegal optimization schemes, including the persistence of relationships with organizations, the relationship of current self-employed customers with their former employers, signs of centralized accounting of self-employed revenue, etc. Based on the results of such work, some organizations voluntarily clarify their tax obligations. “It is worth noting that a small proportion of organizations working with the self-employed fall into the risk group,” the FTS specified.

The problem of optimizing the tax burden by hiring the self-employed does exist, but it cannot be called a mass problem, says Andrey Shubin, Executive Director of Opora Rossii. The professional income tax law itself sets a significant restriction on its distribution, prohibiting companies from hiring self-employed people who were their employees for two years before. The expert notes that in the current difficult economic situation, it is not known what is more profitable for the state: to actively eradicate such violations, actually sending citizens to the labor exchange, or to allow them to continue working according to the gray scheme for some time.

If such violations are detected, the Tax Code provides for a penalty for legal entities in the form of a fine in the amount of 20 to 40% of the arrears, depending on the presence of intent, explains Irina Bychkova, a leading lawyer in Amulex.ru's tax practice. If the tax authority reclassifies civil law contracts as labor contracts, the company may receive additional fines for failure to submit the relevant tax returns. In extreme cases, a firm can be held criminally liable for concealing funds from which taxes should be collected, Bychkova argues.

Since March 2022, a moratorium has been in effect in Russia on scheduled inspections of legal entities and individual entrepreneurs - this measure has become part of a set of actions to support the economy against the backdrop of sanctions. Unscheduled inspections are allowed only upon agreement with the prosecutor's office and in exceptional cases - for example, in case of a threat to life and causing serious harm to the health of citizens, a threat to the defense of the country and the security of the state. However, restrictions do not apply to tax audits: on-site and in-house tax audits are carried out as usual.