• What can be cooked from squid: quick and tasty

    We will figure out how to competently pay to ourselves so that there are no questions from the inspection departments.

    How to pay yourself if you are an individual entrepreneur

    Aspiring individual entrepreneurs have a question about their own salary. Everything is simple here.

    The legislation does not provide for the calculation of wages for an individual entrepreneur. The Ministry of Finance explains this by the fact that it is impossible to conclude an employment contract with oneself, there must be two parties - the employee and the employer. An individual entrepreneur is an individual who is engaged in entrepreneurial activity. That is, both parties to the agreement will turn out to be the same person, which is not allowed by the Labor Code (Article 20 of the Labor Code of the Russian Federation and Article 56 of the Labor Code of the Russian Federation).

    The owner of an individual entrepreneur cannot pay himself a salary. Money can be simply taken in cash from the cash register or transferred to bank card... The main thing is to leave at least part of the profit for business development

    Confusion is sometimes made by banks and other organizations, which, for the convenience of personal accounting, classify individual entrepreneurs as legal entities. In such cases, you can use the explanations of the Ministry of Finance, as well as the norms of the labor and civil codes.

    How, then, does a business owner receive money for their own needs? The property of an individual entrepreneur is not legally delimited, so he can use the company's profits for personal purposes (Art. 128 and Art. 209 of the Civil Code of the Russian Federation).

    How to get money for personal needs

    You can withdraw money in cash from the cash desk or transfer it from a current account to a bank card.

    If you take money from the cash register, you can use a simplified cash order. This means that it is possible not to make entries in the cash book and not to make withdrawal slip... If you want to keep records of such transactions, then in the column "Basis" you can write "Issue Money for the personal needs of an individual entrepreneur ".

    When transferring money from a current account to a bank card, you can specify “Transfer of your own funds for the personal needs of an individual entrepreneur”. The same reason must be indicated when withdrawing money from a bank using a checkbook.

    When to get money

    An individual entrepreneur can receive money for personal needs at any time, there are no restrictions.

    How much money can you take

    The law does not in any way limit the amount of money withdrawn from a business, you can take 100%. Legally, there is no difference between the company's money and the personal money of an individual entrepreneur.

    Newbies sometimes confuse income and profit, and spend all the funds received in their account. Do not repeat such mistakes, use only profit for personal purposes - that is, the money that remains after all taxes have been paid.

    If you want your business to grow, it makes sense to use a portion of the profit for investment.


    What taxes need to be paid

    You do not need to pay personal income tax, as well as contributions to pension and insurance funds. This does not mean that individual entrepreneurs will be left without a pension in the future - the law establishes fixed contributions to the pension fund. For example, the insurance premiums of individual entrepreneurs for themselves in 2018 are:

    • 26,545 rubles per year for pension insurance;
    • 5,840 rubles for medical insurance.

    If the individual entrepreneur's income for 2018 exceeds 300 thousand rubles, then the additional pension contributions, as before, will amount to 1% of the excess amount.

    The amount of deductions is determined annually by the department (Article 430 of the Tax Code of the Russian Federation).

    How to pay yourself if you have an LLC

    Unlike an individual entrepreneur, an LLC is not identified with an individual. The property of the organization is separate from the property of the owner, so the founder cannot spend the company's money for personal purposes. Each expense must be justified and documented.

    How, then, does a leader get income that can be spent on personal needs? We will talk about legal methods, and there are two of them - the payment of dividends to the founder of the LLC and the monthly salary under an employment contract.

    1. Dividends of LLC members

    Dividends can be paid from net profit - this is the company's profit after taxes (Article 28 of the Federal Law No. 14-ФЗ "On Limited Liability Companies"). All members of the company who have a share in the authorized capital can receive dividends or part of the profits, as specified in the law. Accordingly, if there is only one founder, then 100% of the net profit can be paid as dividends.

    How to pay dividends

    To pay dividends, the Company must officially make a decision on the distribution of its net profit among the members of the Company. In the decision, it is necessary to indicate to which participant what share is due, how many days after the meeting the company will pay, to which account it will transfer.

    If the term for payment is not specified in the decision or in the Articles of Association, then by law it is 60 days from the date of signing the Resolution. Then, in accordance with the decision, dividends are paid.

    When can dividends be paid

    Dividends are transferred to the founders in accordance with the Payment Decision. If the term for payment is not specified in the decision or in the Articles of Association, then by law it is 60 days from the date of signing the Resolution.

    Members of the society can make such a decision no more often than once a quarter, and preferably once a year. Making a decision more than once a year - while legal, can cause problems. Dividends can be taken from the profit, and you know the profit only at the end of the year. If you distribute and give back money earlier, you risk taking away the excess and remaining at a loss.

    Dividends should be paid at the end of the year, when the financial results are summed up and the annual profit is known

    At the same time, you can pick up dividends not only for the year that has just ended. If the company has been profitable for several years, and you have not received dividends yet, you can take away the net profit for all the past years.

    How much does it cost to pay as dividends

    Dividends can only be paid out of the company's net profit. This is the only factor limiting the amount of dividends.

    Taxes when paying dividends

    An important point - dividends are not the basis for calculating insurance premiums, unlike wages. This means that dividends can become the object of the company's savings.

    2. Salary of the founding director

    It is more difficult with the salary of the founder of the LLC, even the Ministry of Finance, the Ministry of Health and Social Development and Rostrud are confused in the testimony. Over the years, the departments issued explanatory letters with completely different conclusions: in some it was argued that the founder could not be employed and receive a salary, in others - that he was obliged.

    The Labor Code requires the conclusion of an agreement with all employees, not directly excluding the founders of the company. Art. 16 of the Labor Code of the Russian Federation states that labor relations arise as a result of being elected to a position. Thus, if the founder performs the functions of a director or any other employee, then you need to conclude an employment contract and pay a salary.

    In the case of a director, the contract will be signed by one individual on the part of the employee and the employer, but this is not a big deal: acting on behalf of the legal entity, the individual becomes depersonalized and becomes a company. Therefore, such an agreement does not contradict Art. 20 of the Civil Code of the Russian Federation, which is sometimes referred to by departments.

    How to determine the size of the salary

    The size of the salary can be any, but not less than the minimum wage - the amount differs depending on the region.

    A small salary for the director is usually set if they want to reduce the cost of insurance contributions, and pay the main part of the director's income as dividends.

    Please note that a director's salary at the minimum level may raise suspicion from the tax office. The tax office can call on the salary commission and impose a fine if it proves the unreasonableness of the low salary.

    The size of the salary at the minimum wage level is suspicious for the tax authorities. Take the market average for your position

    If you do not want to answer tax questions, it is safer to pay the average salary for similar positions in your area. The amount can be found using any site for searching and posting vacancies.

    What to choose for LLC

    From the point of view of the tax burden, it is profitable for the company to pay dividends to the founder, rather than salaries. You can save on the payment of insurance premiums.

    But it will not always be possible to limit ourselves to dividends. If the founder of the LLC performs the functions of a manager, then the law obliges to conclude an employment contract and pay a salary, like any other employee.

    A common practice is to set the founding director's salary at the average level, while paying dividends annually. Thus, the founder will be able to receive significant funds, and the company will be able to reduce the tax burden.

    Conclusions:

    As a result, the order of payments to oneself depends on the legal form of the business:

    SP

    • You can just take all the profits for yourself (you do not need to account for this), but do not forget to leave a little for business development.
    • Pay your insurance premiums once a year to avoid being left without your pension.

    OOO

    • You can pay yourself a salary or dividends (taxes are not paid from them, which means you can save money).
    • The best option is to set yourself, as the founding director, a salary at the market average level, and pay dividends at the end of the year.

    The director of the company is the founder, can he not receive wages, but receive only dividends and how legally?

    The rationale for this position is given below in the materials of Sistema Yurist.

    1. Situation: Do I need to conclude an employment contract with the general director, who is the only founder (participant, shareholder) of the organization

    There is no need.

    If the head of the organization is at the same time its only founder (participant, shareholder), an employment contract is not concluded with him (letter of the Ministry of Health and Social Development of Russia dated August 18, 2009 No. 22-2-3199). Chapter 43 of the Labor Code of the Russian Federation. At the same time, the provisions of this chapter do not apply to managers who are the only founders (participants, shareholders) of organizations. This clearly follows from the provisions of the Labor Code of the Russian Federation. This provision is based on the impossibility of concluding an employment contract with oneself, since the organization has no other founders (participants, shareholders).

    In this situation, the director must, by his decision, assume the functions of the sole executive body. In this case, the director will carry out management activities without concluding any contract, including labor. Entry into office is formalized by an appropriate order.

    A similar conclusion is contained in the letters of Rostrud dated March 6, 2013 No. 177-6-1 and dated December 28, 2006 No. 2262-6-1.

    Since an employment contract with the general director - the only founder (participant, shareholder) is not concluded, the organization is not obliged to calculate and pay his salary. * This follows from paragraph 1 of article 135, paragraph 2 of article 145 of the Labor Code of the Russian Federation.

    At the same time, the organization has the right to do this. After all, the absence of an employment contract with the general director - the only founder (participant, shareholder) - does not call into question the existence of labor relations between him and the organization. According to the official clarifications, relationships that arise as a result of election to a position, appointment to a position or approval in a position are characterized as an employment relationship based on an employment contract (). In particular, this means that the said manager is subject to compulsory social insurance in case of temporary incapacity for work and in connection with maternity and is entitled to payment of sick leave in general order, even in the absence of a prisoner with him general rules labor contract (clause 2 of the clarifications approved by order of the Ministry of Health and Social Development of Russia dated June 8, 2010 No. 428n). The lawfulness of this position was also confirmed by the court (determination of the Supreme Arbitration Court of the Russian Federation dated June 5, 2009 No. VAS-6362/09).

    Accordingly, the salary of such a general director is subject to personal income tax and contributions to compulsory social (pension, medical) insurance and insurance against accidents and occupational diseases in the general order (Tax Code of the Russian Federation, Law of July 24, 2009 No. 212-FZ, Law of July 24, 1998 No. 125-FZ, letter of the Ministry of Labor of Russia dated May 5, 2014 No. 17-3 / OOG-330).

    You can set the salary for the CEO, who is the only founder (participant), in the staffing table or by order.

    Ivan Shklovets, Deputy Head of the Federal Service for Labor and Employment

    2. Situation: At what rate (9 or 13%) to withhold personal income tax from dividends paid in 2015, but distributed in previous years

    From dividends paid on January 1, 2015 and later, withhold personal income tax at a rate of 13 percent. That is, according to the one that has been in effect since 2015. It does not matter for what period these dividends are. *

    You can distribute profits for 2014 or earlier at any time. There are no restrictions in the legislation for this. This conclusion follows from the provisions of the Tax Code of the Russian Federation, the Law of February 8, 1998 No. 14-FZ and the Law of December 26, 1995 No. 208-FZ and is confirmed by the letters of the Ministry of Finance of Russia dated March 20, 2012 No. 03-03-06 / 1/133, dated April 6, 2010 No. 03-03-06 / 1/235.

    In any case, the tax rate must be applied to the one that is valid on the date of receipt of income. And in the situation under consideration, such a date is the day when the dividends were paid to the participant (founder). That is, this is the day when the money was transferred to the participant's bank account, or the day when you issued dividends from the cashier. Therefore, if such transactions are dated 2015, then personal income tax will have to be calculated, withheld and transferred to the budget at a rate of 13 percent. *

    This procedure follows from the provisions established by paragraph 1 of Article 208, paragraph 2 of paragraph 2 of Article 210, paragraph 3 of Article 214, subparagraphs and paragraph 1 of Article 223 and paragraph 1 of Article 224 of the Tax Code of the Russian Federation.

    Andrey Kizimov, Deputy Director of the Department

    tax and customs tariff policy of the Ministry of Finance of Russia

    3. Article:How to save on the salary of the only employee - the director

    Than threatens

    The situation when the company has only one employee, the manager, is quite common. Moreover, this is possible not only in times of crisis, when some organizations are forced to completely cut staff. Here are some other examples.

    Let's say the organization is just registered and hasn't started recruiting yet. Or there is only a manager on the staff, and all other employees are involved in work on the basis of civil law contracts. In such situations, the question often arises: can the manager not charge and pay his own salary?

    Tax inspectors insist that it is necessary to pay salaries. As well as to calculate from it personal income tax, UST, contributions to the Social Insurance Fund and the Pension Fund. True, the IFTS has no real leverage over a company that does not pay wages to its only employee - the director. Usually it all boils down to the fact that directors are invited to the salary commission at the tax office, where they recommend paying for their own labor at the "regional" minimum. Otherwise, inspectors threaten to conduct a due diligence in the company.

    At the same time, officials argue their opinion as follows: a leader cannot remain idle. Even if the company does not operate, the director is still obliged to submit the statements provided by the legislation (to the IFTS, funds, etc.). In addition, he probably signs other documents related to the activities of the organization.

    Consequently, the director actually performs his labor functions. And this work should be paid on a general basis.

    The situation is slightly different if the company in the reporting period carried out at least one transaction, but the work of the director was not officially paid. The inspectors will probably assume that the salary was received in an “envelope”. They will conduct an audit and require additional payment of personal income tax, unified social tax, contributions to extra-budgetary funds.

    It should be noted that theoretically claims in this situation may arise from the labor inspectorate. For violation of Article 133 of the Labor Code of the Russian Federation, according to which a company is obliged to pay a salary not lower than the minimum wage, administrative liability is provided (Article 5.27 of the Administrative Code of the Russian Federation). *

    But in this case, one should not be afraid of the fines referred to in the Labor Code of the Russian Federation. After all, officials from labor inspectorates, as a rule, conduct inspections in those companies that have received complaints from employees. And in this situation, there is no one to complain.

    What to do

    There are several ways you can try to avoid problems. Let's take a look at each of them. *

    Method one (the most economical). Do not enter into an employment contract. This method can be used by those managers who are also founders of the company. Back in 2006, Rostrud explained that in such cases, an employment contract with the director is not concluded, since there is no employer for such an employee (letter dated December 28, 2006 No. 2262-6-1).

    And without an employment contract, it is impossible to establish the amount of remuneration (Article 145 of the Labor Code of the Russian Federation). Consequently, there are no grounds for calculating salaries (and taxes). In informal conversations, representatives of the Ministry of Finance of Russia admit: in order for the director to fulfill his duties at legal basis, the decision of the participant on his appointment is quite sufficient.

    Method two (the most popular). Unpaid leave. The director, like any employee, can write an application for such a vacation at his own expense in accordance with article 128 of the Labor Code of the Russian Federation. For example, referring to family circumstances or other valid reasons. True, this does not exempt the head from signing and submitting company reports. This means that there is a risk that the tax authorities, if they wish, will be able to prove that the vacation is “fake”.

    This method is quite popular among the leaders of "mothballed" companies. Meanwhile, the long vacation period, say, over several reporting periods, will certainly also raise suspicions among officials.

    Method three (the safest). Savings on wages. The manager can go to a part-time job. For example, on hourly wages (in this case, it is advisable to focus on the regional minimum wage). The Labor Code does not prohibit this. And officials can be explained that a couple of hours a month is enough to fulfill director's duties (for example, to submit "zero" reporting). And with this they will have to agree. New working conditions and remuneration must be written into the employment contract. In addition, you will need to keep track of hours worked.

    Best regards, Natalia Kolosova,

    Your personal expert.

    _____________________________

    The answer to your question is given in accordance with the rules of expert support, which you can find at:

    Financial Director magazine

    The magazine "Financial Director" turned to ACG "BUSINESS PROFILE" with a request to answer the reader's question: "What is more profitable: to pay dividends or pay salaries to the director?" Answered the question Ella Lalueva, Tax Consultant, Legal and Tax Consulting Department of the Group.

    When deciding what is more profitable to pay dividends or pay high wages, the following facts must be taken into account. (In our answer, we proceeded from the assumption that the company is on the generally accepted tax system).

    Within the framework of labor relations, the employee needs to pay monthly wages (part 3 of article 133 and part 11 of article 133.1 of the Labor Code of the Russian Federation), while dividends are not always paid, but under certain conditions.

    So, they are paid no more than once a quarter from the net profit that will remain after all taxes have been paid.

    In addition, the payment of dividends is possible only when the authorized capital is fully paid, the company has no signs of bankruptcy, and the net assets exceed the amount of the charter capital and the reserve fund even after the payment of dividends. (For JSCs, the excess of the value of preferred shares over their par value is also added to the sum of the authorized capital and the reserve fund).

    It is also necessary to take into account that, based on the current legislation, the company is obliged to withhold personal income tax in the amount of 13% both from dividends and from wages. At the same time, dividends are not subject to insurance premiums. (subparagraph 1 of paragraph 1 of article 420 of the Tax Code of the Russian Federation, paragraph 1 of article 5, paragraph 1 of article 20.1 of the Federal Law of 24.07.1998 N 125-FZ).

    However, in this case, with a visible savings on insurance premiums in the amount of at least 30% (this is without taking into account the rate for insurance against accidents and occupational diseases), the company will not be able to deduct expenses for the purpose of calculating income tax the costs of wages and the insurance themselves. contributions.

    For example, if the company paid the manager a salary of 50 thousand rubles. per month, then she will pay insurance premiums in the amount of 180 thousand rubles. (50 thousand rubles * 12 months * 30%), and will reduce the income tax by 156 thousand rubles. (600 thousand rubles + 180 thousand rubles) * 20%.

    At the same time, we would like to draw your attention to the fact that if the amount of wages exceeds the size of the maximum base, the rate of insurance premiums for OPS will be 10%, and contributions for VNiM from taxable payments to an employee that exceed the maximum base are not charged. Consequently, the savings on contributions will be greater.

    For your information: for 2018, the following limit value of the base for calculating insurance premiums has been established (clauses 1, 2 of the Decree of the Government of the Russian Federation of November 15, 2017 N 1378):

    • for VNiM - 815,000 rubles. cumulative since January 1, 2018
    • for OPS - 1,021,000 rubles. cumulative since January 1, 2018

    In addition, it should be borne in mind that when paying dividends to a company that requires expenses, the taxpayer, as a rule, tries to achieve two mutually exclusive goals at once: first, to reduce profits in order to pay less income tax; secondly, to pay more dividends, which are paid precisely at the expense of profits. Naturally, it is impossible to do this.

    Thus, it is impossible to conclude unequivocally what is more profitable for the company - a salary or dividends. Each company, depending on the amount of payments, profits, taxation system and types of activities (some organizations may count on tax incentives), must make a decision on their own after analyzing the situation.

    The dividend scheme is a universal tool for planning payroll taxes and fees. Instead of a salary, dividends are paid. As a result, insurance premiums are not paid and a reduced personal income tax rate is applied. However, errors in the detailing and implementation of the scheme often lead to more problems rather than benefits.

    The dividend scheme cannot be applied by non-profit organizations. Let's pay attention to the fact that in practice the concepts of “non-profit organization” and state are often confused. In fact, a significant proportion of commercial organizations are government-owned. Conversely, many private equity firms are non-profit. The difference between a commercial and a non-commercial organization is that the purpose of a commercial one is to make a profit, and a non-commercial one is to achieve other socially useful goals.

    A non-profit organization cannot distribute dividends to its own people precisely because its purpose is not to make a profit. True, according to the law, in some cases a non-profit organization can engage in entrepreneurial activity.

    For example, according to paragraph 2. of Art. 10 of the Federal Law "On Non-Commercial Organizations", an autonomous non-profit organization has the right to carry out entrepreneurial activities that correspond to its goals.

    However, the distribution of profits from such activities is a high-risk event.

    Who is eligible to apply the dividend scheme

    Moreover, in due time tax authorities the possibility of withholding from dividends paid to the founders - individuals of the LLC, at a preferential personal income tax rate of 9% was denied. The fact is that the Federal Law "On Limited Liability Companies" dated 08.02.1998 No. 14-FZ does not use the concept of "dividends". Unlike the Federal Law of 26.12.1995 No. 208-FZ "On Joint Stock Companies", it speaks of "the distribution of profits between the participants."

    At the same time, the Tax Code does not mention the concept of "distributed profit" in the preferential taxation of personal income tax, but speaks specifically about dividends. This means that the tax authorities often drew a conclusion, which was not very profitable for the taxpayer, that tax should not be withheld at a preferential rate from the distributed profit paid to the participant - an individual of the LLC.

    However, now no one doubts that only 9% of personal income tax should be paid from the profit distributed between individuals by participants in a limited liability company.

    Dividend Scheme May Not Provide Tax Savings

    The use of a dividend scheme is always beneficial if it is used within a legal entity under a simplified taxation system with a 6% rate or UTII. But if you pay dividends in a company that is on the main tax system, or a simplified one with a 15% rate - on the contrary, tax losses from its use are not excluded.

    The fact is that you will not be able to set off as expenses for the purpose of calculating income tax (single tax) the costs of remuneration of employees and the insurance premiums themselves. If you have more or less reliable forecasts regarding revenues, costs, an understanding of the size of the payroll for the corresponding year, you can make calculations and understand how economically expedient it is for you to use this scheme.

    In addition, it should be borne in mind that when paying dividends by an enterprise that requires expenses, the taxpayer, as a rule, tries to achieve two mutually exclusive goals at once. First, reduce profits in order to pay less income tax. Secondly, to pay more dividends, which are paid precisely at the expense of profits. Naturally, it is impossible to do this.

    Therefore, from the point of view of tax savings, it is often more profitable to transform the dividend scheme in such a way as to use it as a mechanism for refinancing funds. For this, it is already applied within the framework of not one, but two legal entities, one of which, for example, is on the main taxation system, and the other necessarily applies the simplified tax system with a tax rate of 6%.

    Do not forget to submit financial statements

    Of course, organizations on a common taxation system submit financial statements in any case. But, for example, organizations on a simplified taxation system are exempted from this obligation. However, if a simplified company decides to distribute dividends, its accountant will have to restore accounting and submit accounting reports. The same applies to organizations located on UTII.

    The position of the tax authorities regarding the need for maintenance accounting and submission of reports for the distribution of dividends has repeatedly changed (see, for example, Letters of the Department of Tax and Customs Tariff Policy of the Ministry of Finance of Russia dated December 15, 2005 No. 03-11-04 / 2/154, dated March 11, 2004 No. 04-02-05 / 3/19, dated 10.01.2006 No. 03-11-05 / 2, dated 21.06.2005 No. 03-11-05 / 1, dated 15.12.2005 No. 03-11-04 / 2/154, Letter of the Federal Tax Service of the Russian Federation Moscow dated 11.11.2004 No. 21-09 / 72969).

    However, now it is unambiguous. If you want to distribute profits, you need to restore accounting and submit reports to your tax inspector (see Letter of the Department of Tax and Customs and Tariff Policy of the Ministry of Finance of the Russian Federation dated April 13, 2009 No. 07-05-08 / 156).

    Constituent documents

    According to paragraph 3 of Art. 28 of the Federal Law "On Limited Liability Companies", the term and procedure for the payment of a part of the distributed profit of the company are determined by the charter or the decision of the general meeting of LLC participants on the distribution of profits between them.

    If there is only one member of the company, then the possibility of paying dividends, the timing and procedure for their payment must be prescribed in the charter.

    If there are several founders, then the term and procedure for the distribution of profits does not necessarily have to be spelled out in the constituent documents. This can be indicated in the decision of the general meeting of participants.

    An exception is the case when dividends are distributed among the members of the company disproportionately to the shares in its authorized capital. In such a situation, such a procedure for distributing profits must necessarily be spelled out in the constituent documents (Article 28 of the Federal Law "On Limited Liability Companies").

    If you do not comply with the requirements of corporate norms, the risks will be the recognition of paid dividends as wages and additional accrual of insurance premiums and personal income tax from it at a rate of 13%.

    The entire salary cannot be replaced with dividends!

    Very often, when applying the dividend scheme, the following mistake is made - the only founder of the company, who is also the sole executive body, receives only distributed profit (dividends). He is not paid wages at all.

    Of course, this route can yield maximum savings. However, this contradicts the position of the official departments. According to it, the society is obliged to pay wages to the head - the sole founder of the organization.

    Thus, the distributed profit (dividends) cannot be the only monetary incentive that the founder receives for his activities. At least the minimum salary must be established for him.

    In the event that this is the main place of work of such general director, and it is assumed that he works full time, the salary should not be less than the minimum wage established by law (see Letter of the Ministry of Health and Social Development of Russia dated 06/08/2010 No. 428n).

    Make sure you distribute and pay dividends when you are entitled to do so.

    Pay dividends on time. Otherwise, the tax authorities can also qualify them as salaries and charge additional taxes from the amounts paid.

    So, in accordance with the Law "On Limited Liability Companies" and the Federal Law "On Joint Stock Companies" (Article 43), the company is not entitled to make a decision on the distribution of its profits between the members of the company:

    • until full payment of everything authorized capital society;
    • before the payment of the actual value of the share or part of the share of a participant in the company in cases stipulated by law (if it comes about LLC) or before the redemption of all shares that must be redeemed in accordance with the law (for joint stock companies).

    Common cases

    In addition, the laws list general cases when a company is not entitled not only to make a decision on the distribution of its profits (payment of dividends) between the participants, but also to pay it if the decision has already been made. In particular:

    • if at the time of making such a decision or at the time of payment, the company meets the signs of insolvency (bankruptcy) or if these signs appear in the company as a result of their payment;
    • if at the time of making such a decision or at the time of payment, the value of the company's net assets is less than its authorized capital and reserve fund or becomes less than their size as a result of their payment (for LLC), or if at the time of making the decision or as a result of such actions, the value of the company's net assets will be less than its authorized capital and reserve fund, and the excess over the nominal value determined by the charter of the liquidation value of the placed preferred shares or will become less than their size as a result of such a decision (for joint-stock companies);
    • in other cases stipulated by federal laws.

    Stock

    In addition, joint stock companies are not entitled to make a decision on the payment of dividends:

    • for ordinary shares and preference shares, the amount of dividends for which has not been determined, unless a decision has been made to pay the full amount of dividends on all types of preference shares, the amount of dividends for which is determined by the charter of the JSC;
    • on preferred shares of a certain type, for which the amount of dividend is determined by the charter of the company, unless a decision has been made to pay dividends in full on all types of preferred shares giving priority in the order of receiving dividends over preferred shares of this type.

    If there is a loss

    According to the law, you can distribute profits once a quarter, once every six months or once a year. If you use the first or second option, you need to ensure that you do not have a loss by the end of the year.

    Otherwise, there is a risk that the dividends paid for the first three quarters (for the first half of the year) will be reclassified by the tax authorities into wages and additional taxes, as well as fines and penalties will be charged on it.

    Draw up a document-appeal

    And at the end of the article, I would like to draw your attention to one more point. Federal Law No. 409-FZ of 28.12.2010 introduced clause 4 of Article 28 of the Federal Law "On Limited Liability Companies", which concerns the procedure for applying for distributed profits of LLC participants.

    Nevertheless, many lawyers began to interpret this clause in such a way that in order to receive the distributed profit by a member of a limited liability company, he must apply for it. That is, there must be a separate independent document-appeal.

    Of course, this point of view is debatable. However, given that controversial issues regarding legislative innovations often later become a stumbling block in relations with the tax authorities, it will be useful to insure and draw up such a document.

    Tax planning is becoming an increasingly complex and "subtle" tool that can be used to influence financial results. Today we will consider the question - what is more profitable than Dividends or Wages?

    A small business is most often managed by the owner himself, therefore, when answering the question - in what form to pay himself the amount of funds from the business, economic calculations can become arguments. Suppose the owner plans to receive 1 million rubles from the Business every month. How to arrange these payments - as a monthly salary, or a dividend payment.

    Before proceeding to the calculations, let us recall what Taxes and Fees are established by the Legislation in relation to each type of payment.

    Tax law

    Both dividends and wages are subject to Income Tax Individuals – 13%.

    The amount of wages is subject to insurance premiums in the amount of 30%. But there is a limit after which the reduced rate of insurance premiums begins to apply. In 2018, this limit is 1,021,000 rubles. From the moment the employee's annual salary reaches this limit, the amount of insurance premiums is 15.1% (10% - to the pension fund, 5.1 - to the health insurance fund).

    The amount of wages and accrued insurance premiums are included in the expenses taken into account when calculating income tax.

    And in the case of dividends. If we want to pay dividends to the owner of the company 12 million, then we first have to generate taxable profit in the amount of at least 15 million rubles, pay income tax of 3 million (20%) from it, and the remaining amount can be distributed as dividends.

    Calculations

    General Taxation System (OSNO).

    1. The amount is paid as a salary.
    Payroll for the year - 12,000,000
    The size of the payroll taxed by the full amount of insurance premiums (30%) - 1,021,000
    The amount of insurance premiums with a rate of 30% - 306 300
    Payroll amount over 1,021,000 - 10,997,000
    The amount of reduced insurance premiums (15.1%) - 1 657 892
    Personal income tax (13%) - 1 560 000
    Subtotal total amount of taxes and fees - 3 524 129

    At the same time, we get additional costs for income tax (except for the amount of payroll 12 million) - insurance premiums in the amount of 1,964,192 rubles, which will give us an income tax savings (20%) - 392,838.

    Total, taking into account the savings on income tax due to the payment of additional insurance premiums, the tax burden in this case is:

    3 524 129 – 392 838 = RUB 3,131,291

    2. The amount is paid as dividends.

    Taxable profit - 15,000,000
    Income tax (20%) - 3,000,000
    Total Profit for distribution -12,000,000,000
    Personal income tax on distributed dividends (13%) - 1,560,000

    Thus, if the owner pays himself income in the form of dividends, then the total tax burden on this operation will be 4,560,000.

    And if this amount is included in the payroll, then the amount of the tax burden is 3,131,291 rubles.

    It turns out that if the Company is on the general taxation system, then the payment of funds as dividends is 45% more expensive.

    If the Business is on the Simplified Taxation System (Income - Expenses), then if the single tax is 7%, it is profitable to pay dividends, and if 15%, then it is already more profitable for the owner to pay wages in the business.

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