Can an individual entrepreneur be a management company? Who actually performs the functions of a manager when transferring powers to the management company. Can an individual entrepreneur be the founder of an LLC?

21.09.2019

The manager of an individual entrepreneur in an LLC can be appointed on the basis of Law No. 14-FZ. This step is taken by organizations quite often, since appointing an individual entrepreneur as the head of an LLC has certain, significant advantages. How to do this, and what are the advantages and disadvantages of such a solution?

Can an individual entrepreneur be the manager of an LLC?

The law approves this possibility. But to appoint an individual entrepreneur as a manager, it is necessary to correctly draw up an agreement with him.

During the process of drawing up and signing it is necessary:

There are a number of subtleties in the execution of the contract, which will be discussed below.

Such a step has certain advantages and risks.

So, society with limited liability decided to choose an individual entrepreneur as manager. Norms labor legislation allow you to do this.

Replacing the director with an individual entrepreneur allows the company to solve a number of problems:

Registration of a legal entity with an individual entrepreneur is allowed. Then the contractual relationship is concluded after registration actions.

Among these are:

Possibility of retraining a contract concluded with an individual entrepreneur into an employment contract.
An LLC may be held administratively liable for hiring an employee who has been disqualified.

Let's take a closer look at the risks.

Initiates requalification Pension Fund, local authority Federal Tax Service, for the purpose of additional assessment of insurance premiums and underpaid personal income tax.

Sometimes this is done for good reason. For example, the Pension Fund of Russia recognizes the contract as an employment contract in the case when the document specifies guarantees for the hired individual entrepreneur and his labor standards (number of hours and days in working week, vacation period, etc.), other clauses typical of employment contracts. But there are also controversial cases.

There is a known judicial precedent when the Pension Fund of the Russian Federation fully defended its position on the issue of requalifying a contract from management to labor. The company was brought to administrative responsibility and paid arrears on pension contributions.

The Foundation justified this with the following arguments:

the activities of the individual entrepreneur in the position did not pursue the achievement of the hired manager’s own commercial (positive) results;
it was aimed at the prosperity, competitiveness and profit growth of the LLC;
the text of the contract stipulated the obligation to carry out a number of works by the individual entrepreneur in the role of manager;
IP manager participated in production and commercial activities;
the document indicated the hourly rate for individual entrepreneurs;
the activities of the manager were controlled by the General Meeting of the LLC;
The document states the employer’s obligation to provide individual entrepreneurs with working conditions.

The Pension Fund of Russia cited all these points as a sign labor relations.

Considering the case, the courts of all instances came to the decision that the individual entrepreneur obeyed the internal rules and worked for the benefit of the LLC, systematically, for a long time, and his work was continuous.

But the courts do not always agree with this; there are also examples to the contrary. In one of them, the court of first instance supported the Pension Fund of Russia, which accrued additional contributions to the organization. The LLC appealed, and subsequent lawsuits overturned the original decision.

They justified this by the manager’s responsibilities specified in the document, emphasizing that:

The individual entrepreneur in the position established the working hours independently and did not obey the internal regulations of the LLC.
The paper did not indicate the provision of the manager with a place of work and necessary working conditions.

Taken together, this became the reason for the Pension Fund’s refusal to satisfy the requirements. In those contracts with individual entrepreneurs that qualify as labor contracts, provisions for ensuring working conditions and a fixed hourly rate are prescribed, but in unrecognized ones this is not the case.

There is a danger in hiring a former director for a managing position.

The IP management agreement must contain a clearly stated purpose for such a change of status:

There is a risk before the tax authorities. The Federal Tax Service assesses additional income tax to the company, deeming payments to the manager unjustified from an economic point of view.

For example:

the director received a salary of 20 thousand;
then the founder (board of directors) decided to hire him as the manager of the company;
former director registered an individual entrepreneur and signed a management agreement;
his functions did not change, he continued to manage the individual entrepreneur and the company, but the remuneration increased to 200 thousand.

This will raise reasonable questions for the Federal Tax Service and additional assessment of income tax, and the LLC will be held accountable.

To minimize the consequences, you need to draw up a contract correctly - so that its provisions differ as much as possible from those in the labor contract:

Of course, an individual entrepreneur needs stable, regular payment for management services, vacation, some working conditions, and much more. But it is permissible to formalize them with additional agreements that are legally binding, and at the same time are not obligatory for submission to the inspection authorities. In addition, in order to protect yourself from inspections, you cannot change the manager’s payment too much; you can do this gradually, with appropriate justification. And all relationships between the individual entrepreneur and the LLC must be documented.

The purpose specified in the contract is a very important point of it.

The manager is given specific tasks that he must perform in this position, and the goal of his work is to achieve the goal. Based on its implementation (or non-execution), the manager’s performance is assessed. And the purpose set in the agreement, in turn, classifies the document as an agreement for the provision of paid services.

Then the check will reveal only a civil contract, without signs of an employment contract.

Who to hire for the position? If a company is going to hire individual entrepreneurs, it is advisable to select a candidate who has been involved in individual business for a long time. At the same time, it is desirable that management functions should be included in the list of OKVED codes for a businessman. The earlier this was done, the better; ideally, these entries were made two to three years before concluding a management agreement with the company.

This recommendation may seem strange, but it has a logical basis. This is necessary so that the inspection authorities do not face a situation where there was a director who registered the individual entrepreneur and remained as a director, but in a new status. This qualifies as a “special re-registration of labor relations” and attracts the attention of controllers, although it is not explicitly prohibited.

Another point is the closure of the individual entrepreneur. If the LLC has terminated the contract with the hired manager, the individual entrepreneur should not be closed immediately. If you do this, the Federal Tax Service will consider that the manager’s business was registered for the purpose of evading taxes, and the court will most likely support this position.

It was said earlier that you should not change the manager’s salary too dramatically. If the director received 10 thousand, and after becoming an individual entrepreneur, he began to receive a million, obviously, the controllers will have a lot of questions.

The salary can be increased, but gradually, and all changes are tied to the performance of the person in the position of manager and the profit of the LLC. If profits grow, the salary also increases; if income falls, the manager’s salary decreases.

To control the situation, you should sign certificates of work performed by the manager.

Supporting documents are attached to them:

registers;
concluded contracts;
minutes of meetings.

The papers must indicate that the individual entrepreneur is fulfilling his duties and justify the amount of his salary (including changes in one direction or another).

In addition, all current expenses for his work are paid by the individual entrepreneur himself.
These expenses include:

fuel;
stationery;
office equipment and consumables;
rent;
entertainment expenses.

All these expense items relate not to the LLC, but to the individual entrepreneur. And he must pay for them himself. The company's financial participation is limited to the payment of remuneration, and the company is not obliged to reimburse other expenses.

At Buy and Sell LLC. The company is average: based on OSNO, sick of VAT, has connections with cashing offices, employees’ salaries are mediocre. The owners Vitya and Masha are confident in Van, because he has been successfully running the company for 8 years. An experienced manager, capable of resolving any situation, smoothing out sharp corners, motivate employees with both carrots and sticks. In general, the guy is good.

The day has come called “You can’t do this anymore, something needs to change.” No, God forbid, no one even thought of saying goodbye to the effective Ivan. Where else can you find such a proven and knowledgeable employee? We need to find legal ways to get cash and get rid of bad habit run to cashers. An individual entrepreneur is ideal for this. But how to transform the CEO into a “new face”?

Step No. 1: prepare an individual entrepreneur manager

Make it overnight general director IP manager will not work. If you hurry, you will make the tax authorities laugh. Before Vanya starts managing the company in a new role, he needs to become an individual entrepreneur in advance, at least 3 months in advance. At the same time, the future manager must meet all the characteristics of an independent and conscientious person:

It is advisable to have some assets and property (a computer, for example);
Provide services to any other organization;
Incur some expenses (for example, mobile communications).

If Ivan suddenly decides to terminate the powers of the IP manager in a couple of years, it is undesirable to remove his status immediately after terminating the contract. Why expose both yourself and the owners whom you served faithfully for many years?

protocol or decision on the transfer of powers of the sole executive officer to the manager;
agreement with the manager;
sheet Unified State Register of Legal Entities;
card with samples of the manager's signature.

Now Ivan Vasilyevich can calmly manage the company as an individual entrepreneur.

On the day when I was going to legalize one of the projects, you can find it by tag on our website, I was faced with the fact that this type of activity cannot have an individual entrepreneur format, only an LLC. With all the ensuing consequences - problems with withdrawing cash, receiving dividends and the inability to simply give money to Vasya Pupkin.

So we will have to introduce a legal scheme - “One founder of an LLC + managing individual entrepreneur.” Fortunately, my wife led the project from the very beginning. And therefore, questions about the fictitiousness of the manager should not arise from the inspection bodies. Well, how to implement this scheme without consequences, read on.

The interests of private business and the state do not always coincide. Especially in matters of taxation and cash flow. Taking criminal steps to solve these problems is fraught with danger and is therefore not recommended. Moreover, there is a completely legal loophole in the form:

By virtue of the provisions of these articles, any non-unitary enterprise, including an LLC, can invite an IP Manager under an agreement for the provision of paid services and, thanks to this, significantly optimize tax payments, and also get the opportunity to withdraw cash.

A person who is not familiar with the topic discussed in this article will immediately have several questions, to which we will give answers.

If it seems to you that filling out all the documents yourself is too difficult, or you do not want to waste time and understand legal subtleties To fill out documents, you can use automatic document preparation services.

Such services work like a questionnaire - all data is entered into special fields, and then the program inserts them into the necessary parts of statements, decisions/protocols and charters - that is, you can prepare the entire package of documents at once. One of the most famous such services on the Internet is the free resource “My Business” - www.moedelo.org

How can there be a law that is contrary to the interests of the state?

Article 1015 regulates the provision of everyone types of paid (paid) services. Inviting an IP Manager is already a matter of applying the rule of law. The legislator cannot limit the application of the law, and therefore leaves oversight of compliance with the law to law enforcement and tax authorities.

What benefits can an LLC with one founder receive from an agreement with an individual entrepreneur?

Taxation under a service agreement is carried out in a simplified form and amounts to 6 percent on the actual income and on fixed contributions to funds. At the same time, tax deductions under the employment contract with the General Director consist of 13 percent on income and 28 percent on fixed contributions to funds. In arithmetic expression it would look something like this:

General director - salary in hand 1 million rubles per year + 13 percent personal income tax + 28 percent fixed deductions = 1,420,000 rubles of the LLC’s total expenses for the general director.

IP manager – fee 1 million rubles. The LLC does not pay personal income tax or insurance. The manager himself pays 6 percent of the simplified tax system from his fee.

1,420,000 – 1,000,000 = 420,000 savings.

Possibility of cash withdrawal. Taking into account the fact that the fee under the service agreement is not fixed, but is a reflection of the quantity and quality of the service provided, it is possible to pay additional funds to the IP Manager.

For example, an LLC needs to withdraw cash, bypassing the banking system and the attention of tax authorities. It is enough to conclude an additional agreement with the manager for one-time performance of services.

How to start cooperation with the LLC Manager and not come to the attention of the tax authorities?

You should immediately decide on the identity of the IP Manager. It is advisable for an individual entrepreneur to engage in this type of activity long before concluding an agreement with your LLC. It is also advisable that he was not previously associated with your LLC through labor relations. Of course, you will be able to fire the General Director, make him an individual entrepreneur and conclude a service agreement with him, but not for long. IP managers attract tax authorities like flowers - bees. Any suspicion that the IP Manager is a way to evade paying taxes will be interpreted against the LLC and will serve as a reason to apply to the arbitration court. Therefore, when concluding an agreement with an individual entrepreneur, these risks should be taken into account. An agreement with an individual entrepreneur should not allow its possible interpretation as a substitution of an employment relationship with a management (services) agreement. To this end:

The contract should not contain a work schedule. All that is required is a listing of the services provided by the Manager and the time of their execution.
Set a reasonable remuneration for the individual entrepreneur as a percentage of the profit and then maintain it very precisely. Link the fee to the actual achievements of the individual entrepreneur manager. Any fluctuations (within size wages former General Director) may indicate that there has been a substitution of labor relations.
Job responsibilities of a person who previously held the post of director and was transferred to new position, must be changed.
There must be traces of the activities of the IP Manager in your LLC. If the service agreement contains a clause on the submission of monthly reports, then these reports must take place.
Due to the fact that tax authorities are conducting surveys of LLC employees in order to identify violations, it is necessary to inform employees about changes to the Charter. Employees should know that management functions are performed by an individual entrepreneur.

Having decided to start working with the Managing Individual Entrepreneur, you should follow the following rules

Draw up a protocol on amendments to the LLC Charter.
Amend the Charter, spelling out the issue of attracting an IP Manager and eliminating the position of the General Director.
Register changes to the Charter with the tax office.
Conclude an agreement with the IP manager. The agreement is signed by the founder of the LLC.
Terminate the powers of the General Director by issuing an internal order.
Register the changes with the tax office again.
Make changes to bank cards.

Careful adherence to the requirements of the law when concluding a contract for the provision of services with the Managing Individual Entrepreneur can protect the LLC from many troubles. It should be remembered that tax authorities carefully monitor any methods of indirect tax evasion and correctly identify them. Judicial practice shows that any negligence in concluding an agreement with the IP Manager leads to the satisfaction of a claim by the tax inspectorate with approximately the following motivation.

A management company instead of a general director can be a convenient solution for business owners, when the management of the organization can be transferred to a group of professionals who can provide the company with legal and financial security. Let's consider the nuances of work management company in the role executive body organizations.

What the law says about the management company as the executive body of the company

The opportunity to elect a management company as the sole executive body (SEB) is provided both in limited liability companies (LLC) and in joint stock companies(AO).

In paragraph 1 of Art. 42 of the Law “On LLC” dated 02/08/1998 No. 14-FZ defines the possibility of transferring the powers of the individual sole executive officer to the manager. The concept of a manager is explained in subsection. 2 clause 2.1 art. 32 laws. They may be commercial organization or individual entrepreneur.

For joint stock companies the definitions are somewhat different. Clause 1 of Art. 69 of the Law “On JSC” dated December 26, 1995 No. 208-FZ separates the concepts management organization (commercial enterprise) and manager (individual entrepreneur). At the same time, a decision on the appointment of a management organization or manager can only be made by a general meeting of shareholders on the proposal of the board of directors or supervisory board.

Read about an individual entrepreneur acting as the head of an LLC in the publication.

IMPORTANT! The Civil Code of the Russian Federation provides for the possibility of transferring the powers of an individual sole executive officer to several individuals or legal entities (clause 3 of Article 65.3 of the Civil Code of the Russian Federation). But such a norm must be spelled out in the organization’s Charter. This makes it possible to transfer only part of the powers of the general director to each management company.

How to draw up an agreement with a management company as an individual sole proprietor

The agreement with the manager or management organization is signed by the person who chaired the meeting at which the decision to elect the individual executive was made. If, when concluding an agreement with an individual general director, it is necessary to be guided by both civil and labor code, then concluding an enterprise management agreement with a legal entity relieves the owners from labor relations with the manager.

There are no clear requirements for the content of the agreement on the transfer of powers of the sole executive officer to the management company. The courts determine the contract for the management of the organization a separate species agreements not related to trust management of property. This position was expressed, for example, by the Federal Antimonopoly Service of the Volga District in its resolution dated May 21, 2009 No. A55-13261/2008.

IMPORTANT! The agreement with the management company may also provide for accounting of the enterprise, legal services and other services. This conclusion is contained, for example, in the decision of the Fourth Arbitration Court of Appeal dated 04/09/2012 No.A78-7551/2011.

How to register changes in the Unified State Register of Legal Entities in the case where the sole executive body is a management company

Within 3 working days after the entry into force of the agreement with the management company, you must submit an application to make an entry in the Unified State Register of Legal Entities in form 14001. If this is not done on time, the registering authority has the right to impose an administrative fine in the amount of 5,000 rubles or issue a warning (clause 3 of Art. 14.25 Code of Administrative Offenses). If this is not done at all, then the fine is expected to range from 5,000 to 10,000 rubles (Clause 4, Article 14.25 of the Administrative Code).

Read about how to enter information about the manager’s identity document in the Unified State Register of Legal Entities in the publication.

When transferring the powers of the general director to the management company, a controversial issue with the organization's address. The law does not oblige you to change the address of the enterprise to the address of the management company. A discrepancy between the address of the organization and the address of the management company cannot serve as a reason for refusing state registration of changes in the Unified State Register of Legal Entities. Such clarifications are given in the letter of the Ministry of Finance of the Russian Federation dated December 12, 2016 No. 03-12-13/74221. There is also arbitration practice confirming this position (resolution of the Arbitration Court of the Volga District dated October 21, 2016 No. F06-13202/2016 in case No. A65-3626/2016).

Who actually performs the functions of a manager when transferring powers to the management company

After making an entry in the Unified State Register of Legal Entities, only the general director of the management company can represent the interests of the enterprise without a power of attorney. But he has the right to issue a power of attorney to represent his interests to another person. A change in the trustee or individual name of the management company does not oblige the organization to make an entry in the Unified State Register of Legal Entities. This position is confirmed by the letter of the Federal Tax Service of Russia dated January 31, 2014 No. SA-4-14/1645@ (Appendix 1, column 14.2.05.36).

The law does not require notarization of a power of attorney issued by the head of a management company. This is confirmed by arbitration practice (resolution of the Tenth Arbitration Court of Appeal dated April 6, 2015 No. 10AP-19144/2014).

The wording in the organization’s documents will be quite long and may read as follows: History LLC, represented by the LLC “Management Company”, represented by Director I. S. Barsukov, acting on the basis of the agreement on the transfer of powers of the sole executive organization No. 1 dated 06/08/2017 and the Charter of the manager. , acting on the basis of the Charter (or represented by A.P. Stupchikov, acting under power of attorney No. 5 dated June 15, 2017).

IN bank card The management organization represented by its head or its representative, who is vested with the appropriate powers on the basis of an administrative act or power of attorney, is indicated as persons having the right to sign payment documents. This is stated in clause 7.5 of the Bank of Russia instructions “On opening and closing bank accounts, deposit accounts, deposit accounts” dated May 30, 2014 No. 153-I.

How to reflect the costs of managing an organization in accounting and tax accounting

Tax authorities expenses under the contract with the management company are not always recognized. The reason for this is the absence of such costs in the closed list of expenses provided for by the Tax Code to reduce the tax base for the single tax under the simplified tax system.

And in the case of income tax, the reason is often the incorrect interpretation by tax authorities of the provisions of the management agreement. As, for example, in the already mentioned resolution of the FAS of the Volga region No. A55-13261/2008. The tax authorities view the management company not as an individual sole proprietor, but as a performer providing enterprise management services, which, in the understanding of the tax authorities, should exclude the simultaneous presence of any specialists holding management positions on the company’s staff.

In order to reduce the likelihood of claims from the Federal Tax Service, the subject of the management agreement should be very clearly stated.

And in the case of simplification, even a well-drafted agreement will not help reduce the tax base. Letter of the Ministry of Finance of the Russian Federation dated February 13, 2013 No. 03-11-06/2/3694 provides an unambiguous explanation that this is impossible even though accounting, auditing and legal services are included in the expenses. Costs under the contract for the exercise of the powers of the individual executive organization do not apply to such services. They cannot be included in material costs either.

In accounting, expenses under an agreement with a management company are charged to the same account to which the manager’s salary would be credited. Depending on the type of activity, the wiring may look like this:

Dt 20, 26, 44 Kt 60

Results

The law does not describe all the subtleties that arise when appointing a management company instead of a general director. Therefore, some issues may have to be resolved in judicial procedure. But if you describe the interaction with the management company in as much detail as possible in the contract, then many problems can be avoided.

How to introduce an individual entrepreneur manager instead of a director?

Under the terms of the agreement, the list of issues supervised by the management company is open. What rights does an individual entrepreneur who has been appointed manager have?

Question: We want to make the founder of the LLC an individual. person of the individual entrepreneur, and also introduce him as the Managing Director of the individual entrepreneur instead of the director. What are the consequences of such a scheme, is it legal? How do tax authorities treat such Managers?

Answer: The founders of the organization have the right to decide how the organization will be managed - by the sole executive body or third party(entrepreneur). In the second case, the powers of the manager are transferred to the manager, including the right to sign all documents on behalf of the organization (reports for regulatory authorities, agreements with counterparties, powers of attorney, etc.).

The decision to transfer the organization to external management is formalized by the decision of the sole founder. At the same time, a decision can be made to dismiss the manager.

After that a civil contract is concluded with the manager, Usually this is a mixed agreement, which has features of a contract for paid indication of services, contracts of agency and an agency contract. The object of the management agreement will be a range of services that will be provided by the manager. It is better to describe them in as much detail as possible. The deadline for such an agreement is not defined by law; the parties can set its duration themselves. At the same time, the general meeting of participants (shareholders) of the company has the right at any time before the expiration of the agreement concluded with the manager to make a decision on the early termination of his powers (subclause 4, clause 2, article 33 of Law No. 14-FZ and clause 4 of Art. 69 of Law No. 208-FZ).

Tax office is reluctant to take into account the costs of paying the manager’s services when taxing profits. Practice shows that tax authorities consider such expenses to be unnecessary and often refuse to recognize them.

It is also important to take into account that such a scheme for minimizing the tax burden, associated with the appointment as the manager of an organization of a person registered as an entrepreneur on the simplified tax system, is widely known and there is a high probability of reclassification of a civil law contract into an employment contract with subsequent additional taxes, which is also confirmed judicial practice(Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 12, 2006 No. 53, Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated June 27, 2008 No. A11-8961/2007-K2-22/483, Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated March 3, 2008 No. A31-1340/2007-15, Resolution of the Seventeenth Arbitration Court of Appeal dated December 18, 2008 No. 17AP-9108/2008-AK).

The use of this tax minimization scheme was one of the points of accusation against the Yukos company, M. Khodorkovsky and P. Lebedev, who, being registered as individual entrepreneurs using the simplified tax system, provided consulting services organizations.

Please note that according to current legislation, the founders of an LLC can be individuals (citizens) and legal entities (Article 7 of Federal Law No. 14-FZ). The law does not provide for such a concept as a founder - an individual entrepreneur. Moreover, if individual has the status of an individual entrepreneur, this does not prevent him from simultaneously being the founder of an LLC, but in this case he acts as a founder as an individual.

The procedure for transferring powers to a manager - individual entrepreneur is similar to the procedure for transferring powers to a management company (see recommendation below).

If physical person - individual entrepreneur will not be the only founder of the LLC, then the transaction for the transfer of powers to the manager in in this case will be an interested party transaction that requires approval (clause 1 of Article 45 Federal Law dated 02/08/1998 No. 14-FZ)

Rationale

How to transfer the powers of the director of an LLC to a management company

At a certain stage of business development, the owners may be faced with the question of the need to attract a management company in order to make management more effective.

In the event of such a development, the LLC lawyer needs to know how to correctly transfer powers to the management company so that it has every opportunity to achieve its goals, is controlled by the owners and, if necessary, is responsible for its actions.

How to formalize the transfer of powers to the management company

The law does not define the concept of “management company” (“management organization”). In fact, a management company is a commercial organization that provides services in the field of enterprise management. To provide such services, a license is not required.

The functions of a management company can also be performed by an individual entrepreneur - manager.

The LLC instructs the management company to manage its affairs and property by exercising the powers of the sole executive body (director). The management company, in turn, is represented by its director or another person authorized by him.

The general meeting of participants or the board of directors must decide to transfer the powers of a director to a management company, approve such a company and the terms of the agreement with it, including the amount of remuneration. It depends on what is said in this regard in the charter (sub-clause 2.1 of Article 32, Federal Law of February 8, 1998 No. 14-FZ “On Limited Liability Companies”, hereinafter referred to as the LLC Law). In this case, there is no need to make additional changes.

If the decision is made by the general meeting of participants, a simple majority of votes is sufficient. A different rule may be established for the board of directors in the charter or internal document regulating the activities of the board (for example, in the Regulations on the Board of Directors).

In addition, the LLC enters into an agreement with the management company, according to which it transfers to it the powers of the director (Clause 1, Article 42 of the LLC Law). The list of essential terms of the contract is not defined in the law. In terms of content, this is a mixed agreement, since it has the characteristics of a contract for a paid indication of services, a contract of agency and an agency contract.

The powers of the management company should be specified in the contract in as much detail as possible. This is especially important if there are other executive bodies in the society, since a dispute about competence may arise later - at the most inconvenient moment, when delay will cost society dearly.

Also, the agreement between the company and the management company can provide for:

goals that must be achieved by the management company. At the same time, it is better not to limit yourself to general goals, but to regularly draw up annexes to the agreement with precise planned indicators, which the company under the leadership of the management company should achieve after a certain time. This will contribute to achieving a clear understanding by the management company of the goals that society wants to achieve;
amount of remuneration for the management company. It can be set depending on the achievement of the indicators specified in the previous paragraph. This will motivate her to efficient work, as well as minimize the risk that the costs of paying for its services are not recognized as income tax expenses. The amount of remuneration should be divided into a fixed fee, compensation for direct expenses approved by the company, and remuneration based on the results of the reporting period;
liability arising from the management company in connection with the performance of its functions;
procedure for terminating the powers of the management company;
the volume and content of information and reports that the management company is obliged to submit to the board of directors and shareholders regarding its work and the company’s performance indicators, the frequency with which such reports must be submitted;
a list of officials of the management organization who are required to report on its work to the board of directors and the general meeting of shareholders of the company;
conditions for non-disclosure of confidential information (volume of such information, terms of non-disclosure and responsibility).

The management company actually replaces the director. The actions of the management company give rise to rights and obligations for the LLC (Clause 2, Article 42 of the LLC Law). The management company must act in the interests of society in good faith and reasonably (Clause 1, Article 44 of the LLC Law).

At the same time, it is not necessary to transfer all the powers of the director to the management company; only a part can be transferred. In addition, you must remember to distribute the remaining powers among the management bodies of the LLC.

In judicial practice, there has been an opinion that the remaining part of the powers can be left with the director without completely terminating his powers. However, this may cause disputes with tax authorities.

Example from practice: the tax inspectorate tried (albeit unsuccessfully) to charge additional income tax and VAT on the cost of paying for the services of the management company

LLC "G." and LLC "N." entered into agreement No. 4 dated June 5, 2004 on the transfer of powers of the sole executive body of the company to the management company. Changes have been made to the Unified State Register of Legal Entities.

The competence of the director of LLC "G." (according to the job description) included operational management of current production processes with the right to enter into transactions of little significance for the company (in the amount of up to 25 thousand US dollars).

The management company was given broader powers; its position corresponds to the position of the director defined in the LLC Law (according to the agreement on the transfer of powers).

Based on the results of a tax audit of LLC "G." was brought to tax liability, he was assessed additional income tax and VAT, as well as penalties and a fine. The tax inspectorate, having assessed additional taxes, insisted that the organization does not have the right to transfer part of the director’s functions to the management company (and, therefore, pay it for such services and take this amount into account in its income tax expenses). The inspectorate argued that an LLC has the right to transfer either all of the director’s functions or none.

LLC "G." (the applicant) did not agree with the inspection’s decision and appealed to the arbitration court.

The court took the applicant's position because:

The LLC Law does not limit the scope of powers transferred to the management company, therefore it is possible to transfer all or part of the powers;
There is no duplication of management functions.

Requirements of LLC "G." were satisfied. The courts of appeal and cassation agreed with the court of first instance (resolution of the Federal Antimonopoly Service of the Moscow District dated July 23, 2009 No. KA-A41/6105-09 in case No. A41-20225/08).

If you still leave the general director and management company at the helm of the LLC, you must ensure that their powers are not duplicated. Otherwise, this may create not only tax risks, but also disputes about competence, which in practice will lead to destabilization in society.

What documents will the management company confirm its authority to the LLC’s counterparties?

Two groups of documents can be distinguished.

Firstly, documents that confirm that management has been transferred to the management company:

solution general meeting LLC participants on the transfer of powers to it;
agreement on the transfer of powers to the management organization;
extract from the Unified State Register of Legal Entities for the LLC;
LLC charter.

Secondly, documents that confirm the powers of the general director of the management company:

charter of the management company;
order on the appointment of the general director;
an extract from the Unified State Register of Legal Entities for the management company itself;
decision of the general meeting of participants of the management company on the election of the general director.

Often, the general director delegates the authority to manage the company to one of the management company’s employees. In this case, the latter’s powers must be confirmed by a power of attorney signed by the general director and accompanied by the seal of the management company. Such a power of attorney is not required to be certified by a notary, since the general director of the management company acts on behalf of the company without a power of attorney (Clause 4 of Article 185.1 of the Civil Code of the Russian Federation).

The agreement with the management company is signed by the chairman of the general meeting of participants, which approved the terms of the agreement, or by a participant authorized by the general meeting.

If the management company is approved by the board of directors, then the agreement is signed by the chairman of the board of directors or a person authorized by the board of directors (clause 3 of article 42 of the LLC Law).

When transferring the powers of a director to a management company, you must enter information about this change in the Unified State Register of Legal Entities.

What responsibility does the management company have?

The management company is liable to society for losses caused to it by its guilty actions (inaction). You can demand compensation only through the court; the company itself or the participants have the right to do this (Clause 5, Article 44 of the LLC Law).

Example from practice: an organization (LLC) recovered from its director losses caused by the fact that, on his personal order, the procedure for returning goods from the buyer was violated

This example concerns a director, but this practice is also applicable for a management company. Since in our country the involvement of management companies is not very common, judicial practice with their participation is not enough. However, the same rules apply to the management company as to the director. Therefore, the example of recovery of damages from the director can be taken into account in relations with the management company.

Between LLC "P." and LLC "M." a supply agreement was concluded, according to which LLC "P." supplied by LLC "M." meat products, including chilled poultry.

After some time, at LLC "P." Citizen P was appointed acting director. He exercised these powers from June 26 to December 23, 2009.

On September 5, 2009, products were shipped to the buyer - chilled carcasses of 1st grade broiler chickens in the amount of 18 tons for a total amount of RUB 1,458,000.

The buyer accepted the products without any comments, as evidenced by his signature and seal on the invoice.

At the same time, on September 8, 2009, during the subsequent delivery of similar products to the buyer in the amount of 15 tons, by order of citizen P., the driver took from the buyer part of the previous batch of products in the amount of 6588 kg for a total amount of 539,096 rubles. 4 kopecks as low-quality products.

All products accepted upon return from the buyer on P.’s personal order were considered unfit for free sale and were accepted into the warehouse for subsequent disposal.

LLC "P." appealed to the arbitration court with statement of claim to citizen P. for the recovery of 539,096 rubles. 4 kopecks losses, citing the fact that the defendant did not comply with the established procedure for returning products.

The court supported the plaintiff's position in connection with the following.

According to the contract, if a product quality discrepancy is detected, the buyer is obliged to call the supplier’s representative to draw up a report, and if the supplier’s representative does not arrive, the report must be drawn up with the participation of a representative of an independent expert organization.

In this case, the procedure was not followed; no written documents or claims regarding the quality of the delivered products were received from the buyer to the plaintiff.

The defendant failed to comply with the necessary conditions for identifying and accepting the return of defective products from the buyer. This caused the plaintiff damage in the amount of RUB 539,096. 4 kopecks

The claims were satisfied. The cassation court agreed with the court of first instance (decision of the Federal Antimonopoly Service of the Volga District dated April 28, 2011 in case No. A65-15620/2010, determination of the Supreme Arbitration Court of the Russian Federation dated August 1, 2011 No. VAS-9669/11).

Example from practice: an organization recovered losses from its director in the form of a sum of money that he received from the cash register on account

The following example concerns the director of a closed joint stock company, however, this practice is also applicable for the management company of an LLC.

From January 2007 to September 2008, citizen S. served as the general director of CJSC “P.” and during this time received from the company's cash register a report on cash receipts cash for a total amount of 48,494,829 rubles. 31 kopecks The funds received were partially returned in the amount of 8,779,000 rubles, the balance of the debt in the amount of 39,715,829 rubles. 31 kopecks not returned, advance reports on the expenditure of funds for the amount of the debt were not drawn up.

Later, JSC "P." was declared bankrupt and, represented by the bankruptcy trustee, filed a claim against S. in the arbitration court for the recovery of 39,715,829 rubles. 31 kopecks, since this amount constitutes losses to the company, and they must be compensated at the expense of the defendant.

The arbitration court of first instance refused to satisfy the claims. However, the appellate and cassation courts supported the plaintiff’s position in connection with the following.

The defendant referred to the existence of a relationship between the parties under a loan agreement, to the transfer of debt and the termination of the obligation by novation and offset of mutual claims, but did not prove this.

In this regard, the money received from the company must be returned by the person who received it, that is, S.

The claims were satisfied (resolution of the Federal Antimonopoly Service of the West Siberian District dated March 21, 2011 in case No. A70-3844/2010).

If several persons are liable, then it will be joint and several (clause 4 of article 44 of the LLC Law).

Usually, it is quite difficult to recover damages, since it is necessary to prove the fact of violation of the management company’s obligations, its guilt and the causal relationship between the actions and the losses caused, as well as the amount of such losses ( following examples long-term and unsuccessful recovery of losses applies to directors in joint-stock companies, but this practice also applies to the management company in an LLC: Resolution of the Supreme Arbitration Court of the Russian Federation of May 22, 2007 No. 871/07; resolution of the Federal Antimonopoly Service of the Central District dated May 4, 2008 in case No. A36-1075/2006).

In addition, if the management company has not achieved the intended results, it is possible not to pay it part of the remuneration (if this was agreed in advance in the contract).

In some cases, the management company (manager), as well as the general director, may be held administratively liable. A specific individual (manager) may also be brought to criminal liability if his actions constitute a crime.

Also, LLC participants may invalidate a decision of the management company that is contrary to the law or charter and violates their interests (Clause 3, Article 43 of the LLC Law).

How tax authorities check expenses for services of a management company and what to object to them

The organization has the right to take into account the costs of paying for the services of the management company when taxing profits (subclause 18, clause 1, article 264 of the Tax Code of the Russian Federation). Practice shows that tax authorities consider such expenses to be unnecessary and often refuse to recognize them. Since controllers do not have the right to assess the expediency of spending (definition of the Constitutional Court of the Russian Federation dated June 4, 2007 No. 320-O-P), they come up with other reasons.

Most often this is inappropriate documenting or the long-term nature of the expenses. It all depends on the terms of the contract for the provision of management services. For example, in one of the cases, inspectors stated that after attracting a manager, the organization became unprofitable (Resolution of the Federal Antimonopoly Service of the North Caucasus District dated May 7, 2007 No. F08-2033/2007-985A).

In another dispute, tax officials referred to the provisions job descriptions, which, in their opinion, duplicated the functions of the management company (Resolution of the Federal Antimonopoly Service of the North-Western District dated May 18, 2006 No. A13-5263/2005-15).

Let's look at what inspectors didn't like in specific situations.

The company incurred management costs for 16 years

Details of the judicial act: Resolution of the Federal Antimonopoly Service of the Volga Region dated November 14, 2012 No. A55-4113/2012

Arguments of the tax authorities

It was impossible to determine a specific list of services from the acts of services provided. The documents did not contain quantitative, qualitative and price characteristics related to the work and the specialist.

What the company objected

One of the ways the foreign founder controlled the audited company (51% of shares) was to appoint employees from his foreign holding to key management positions.

The organization has the right to independently assess the feasibility of expenses (rulings of the Constitutional Court of the Russian Federation dated June 4, 2007 No. 320-O-P and 366-O-P). In addition, administrative expenses contributed to persistently high financial indicators companies.

There is no unified form of the act of acceptance and transfer of services. Therefore, the taxpayer has the right to draw up a document in free form indicating all required details.

The organization spent money on preparing reports and plans for the management company

Details of the judicial act: Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated September 15, 2008 No. A82-1041/2007-28

Arguments of the tax authorities

The company's expenses for accounting, financial and economic planning services are not economically justified. She had no need to draw up reports and plans for the manager.

What the company objected

The founder of the company (management company) ordered all subsidiaries to prepare management reporting - in the form of special reports and plans. In addition, the expenses are economically justified, since based on the results of the analysis of such reports, the management company was able to optimize the management of tax and accounting, reduce the labor costs of the company being inspected (one of several in the holding).

Company management activities led to losses

Details of the judicial act: Resolution of the Federal Antimonopoly Service of the East Siberian District dated March 28, 2011 No. A78-5740/2010

Arguments of the tax authorities

The organization spends money only on salaries and services of the management company. At the same time, from the moment the contract for the provision of management services is concluded, the company incurs losses.

What the company objected

After the conclusion of the management agreement, the amount of losses of the company decreased. Revenue increased accordingly. After attracting a management company, the position of the company's general director was reduced. But the company continued to operate. The tax authorities did not provide evidence that the disputed services were not provided. The management company is a bona fide taxpayer.

In addition, in its defense, the company presented an information letter from the State Medical Center of the State Statistics Committee of Russia stating that the management company has the right to conduct activities to manage financial and industrial groups and holding companies.

The company simultaneously paid for the services of the management company and paid salaries to the general director, his assistant and the executive director

Details of the judicial act: Resolution of the Federal Antimonopoly Service of the Moscow District dated August 19, 2011 No. KA-A41/8972-11

Arguments of the tax authorities

Tax officials referred to the “doubling” of expenses. Allegedly, the organization illegally twice reflects in tax accounting the costs of paying for the services of the management company and the costs of salaries of its own management personnel.

What the company objected

The agreement on the transfer of powers of the sole executive body states that the management company carries out competent strategic management, planning and budgeting. Such services are classified as a “specific field of activity”. In addition, an analysis of the services provided by the management company and the job descriptions of the management personnel of the audited company proved that their functions differ.

The audited company and the management company were interdependent structures

Details of the judicial act: Resolution of the Federal Antimonopoly Service of the North-Western District dated November 21, 2008 No. A42-918/2008 (upheld by the decision of the Supreme Arbitration Court of the Russian Federation dated March 27, 2009 No. VAS-3292/09)

Arguments of the tax authorities

the management company's remuneration increased significantly four months from the date of signing the contract. However, the scope of responsibilities of the management company has not changed. The company did not provide documents confirming the actual implementation of management functions by the management company.

What the company objected

The controllers did not substantiate how the fact of interdependence affected the outcome of the transaction. They did not check the “marketability” of prices. The management company is located in the region where the organization is just planning to expand its activities. Such managers know the nuances of running a regional business and have experience in managing remotely.

In addition, the audited company had all Required documents— an agreement with an additional agreement, invoices, reports on the provision of management services, orders for employment, leave and business trips, employment contracts and so on.

The company was negligent in choosing a management company

Details of the judicial act: Resolution of the Federal Antimonopoly Service of the North Caucasus District dated October 13, 2011 No. A53-2713/2011

Arguments of the tax authorities

The inspectors emphasized that, with the help of management services, the company pursues the goal of obtaining unjustified tax benefits through the use of VAT deductions. The agreement on the transfer of powers of the sole executive body was of a formal nature. The management company, being the only participant in the company, had the necessary management powers by virtue of the law.

What the company objected

The audited company justified its choice of management company by the fact that this organization is one of the leaders in the management of organizations engaged in trading operations. The involvement of a management company led to an increase in the company's net profit during its operation by more than three times. The management company, in addition to managing the company, ensured the activities of other organizations within the holding, which made it possible to acquire and sell industrial raw materials as efficiently as possible.

In addition, the tax authorities did not provide evidence that the company’s existing employees could and actually performed independently the amount of work associated with the functions of the management company.

The general director and the management company simultaneously performed similar functions

Details of the judicial act: Resolution of the Federal Antimonopoly Service of the North-Western District dated November 16, 2007 No. A56-39310/2006

Arguments of the tax authorities

The decision to transfer powers to the management company was made not by a decision of the meeting of shareholders of the audited company, but by the sole shareholder.

What the company objected

The powers of the general director of the company ceased after their transfer to the management company. The company's profit increased over the period under review. Therefore, the disputed costs are economically justified.

A similar dispute in favor of the company was resolved by the FAS of the East Siberian District in resolution dated April 25, 2006 No. A19-18184/05-40-F02-1722/06-S1.

The cost of management services in the contract was indicative

Details of the judicial act: Resolution of the Federal Antimonopoly Service of the East Siberian District dated August 13, 2007 No. A74-3353/06-F02-3784/07

Arguments of the tax authorities

The parties stipulated in the contract that the cost was determined approximately. But the final price for services was determined monthly based on actual costs. As a result, the tax authorities came to the conclusion that the expenses for the services of the management company were fictitious, had no business purpose and were aimed solely at minimizing tax payments.

What the company objected

From the reports of the management company it is clear what specific functions it performed. The inspectors did not make any claims regarding the remaining documents (contract, invoices, acceptance certificates for services rendered). An analysis of the financial and economic indicators of the company proves that the services of the management company did not cause harm to the audited company.

Prices for the management company’s services did not correspond to market levels

Details of the judicial act: Resolution of the Federal Antimonopoly Service of the Moscow District dated 05/22/07, 05/28/07 No. KA-A40/4360-07

Arguments of the tax authorities

In this case, tax officials argued that the management company acted ineffectively. Staffing table of the company with the transfer of management functions to another organization has not changed. Service acceptance certificates do not comply with the requirements of Article 9 of the Federal Law of November 21, 1996

No. 129-FZ (lost force due to the entry into force of the Federal Law of December 6, 2011 No. 402-FZ “On Accounting”). Prices for the management company's services did not correspond to market levels.

What the company objected

The management company was selected by decision of the extraordinary general meeting of shareholders. The decision to transfer the powers of the sole executive body to the management organization was made by the company’s shareholders - the persons most interested in receiving maximum profit society.

In addition, according to the report on the effectiveness of the management company in performing its functions, its services “had a positive impact on the activities” of the audited company. The functions of the management company were not duplicated job responsibilities management personnel of the company. From the orders of the audited company it followed that 29 staff members were removed from the management team.

The management company's reports are mainly statistical in nature

Details of the judicial act: Resolution of the Federal Antimonopoly Service of the North Caucasus District dated September 28, 2012 No. A32-36378/2011

Arguments of the tax authorities

The audited company had no reason to incur costs for management services if it had similar specialists on staff. The management company's reports were mainly statistical in nature. The transaction documents lacked data on pricing and determining the cost of specific management services.

What the company objected

Tax officials did not doubt the legality of the company being audited tax reporting. But these are the functions that the management company performs within the framework of the current financial and economic activities of the company.

In addition, the inspectors did not provide adequate evidence confirming the fact of the interdependence of the inspected company (the airport and the management company). While the costs of management services were reflected in documents, the preparation of which was provided for by the terms of the contract.

Details of the judicial act: Resolution of the Federal Antimonopoly Service of the North Caucasus District dated December 12, 2011 No. A53-1945/2011

Arguments of the tax authorities

The parties set the management company's remuneration differently each time - in the protocols for agreeing on the contract price. In addition, during the period of provision of management services, the company’s activities were unprofitable.

What the company objected

The transfer of the functions of the sole executive body to the management company was aimed at ensuring the possibility of obtaining additional income through increase. This was confirmed by the growth of the company's profits.

In addition, the audited company stated that the production advisor's job responsibilities were specific to, and not duplicative of, the management company's services.

Alexander Vodovozov answers,

Deputy Head of the Taxation Department legal entities Federal Tax Service of Russia

“The choice of benefit code depends on how the region exempted movable property from tax. For example, in whole or in part. How to fill out a declaration on movable assets with benefit codes for each case, see the recommendations.”