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Explanations of a security company on salaries to the tax office. New salary commissions in the Federal Tax Service. what to do if called. Selection by commission

If your employees receive wages below the industry average, the tax authorities may require written explanations. We have provided a sample of explanations to the tax office about the reasons for low wages (below the industry average) below.

What happens if you don’t send an explanation to the Federal Tax Service about the reasons for the low salary?

If explanations are not sent, tax authorities may charge additional personal income tax on the difference between real wages and the industry average. They will assume that you are giving out salaries in envelopes. Moreover, funds will also come after the tax authorities with inspections: since there is a base for personal income tax, it means that a base for contributions has appeared.

Where does the Federal Tax Service get information about the average salary level in the industry?

Tax officials compare wages with the cost of living in the region and the average wage per employee by type of economic activity.

The subsistence minimum is approved by regional authorities. You can find it on the Internet in regional news or on the local government website.

And the industry average wage level is on the Rosstat website.

Thus, you can already estimate now whether you have a risk of writing explanations for tax authorities or not. In any case, our sample explanation to the tax office about the reasons for the low salary level will help you.

Explanations

On July 15, 2016, LLC "Production Firm "Master"" received from the tax inspectorate a message dated July 13, 2016 No. 45/7 stating that the level of the average monthly salary in our organization per employee is lower than the level of the average monthly salary by type of economic activity.

Upon receipt of the above message, we clarify that the salary of all employees

LLC "Production Company "Master"" is higher than the minimum wage. The average monthly salary per employee in an organization is determined by dividing the monthly wage fund by the number of employees. LLC "Production Company "Master"" has employees who are not employed full time, and it is their salary that is lower than the industry average. The salaries of other employees are above the industry average.

Appendix: calculation of the average monthly salary of LLC "Production Company "Master""

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From the material you will learn who is usually called to tax commissions (unprofitable, salary, VAT, etc.); what to answer to inspectors, and what the general director risks if he refuses to appear at the Federal Tax Service.

Tax base legalization commissions, or, more simply put, tax commissions, are a special form of tax control that has been widely used for more than five years. What is most interesting is that neither the procedure nor the responsibility of the taxpayer for refusing to appear at the commission is indicated in any way in the legislation (there are only explanatory letters from the Federal Tax Service addressed to the inspectors themselves).

Some selection criteria for tax commissions coincide with those that tax authorities use to plan on-site audits. At the same time, the commission also includes organizations for which it is not yet advisable to conduct an on-site inspection, since there is no absolute confidence in the effectiveness of the audit (but it is already clear that there are violations).

Let's look at what commissions there are, who is invited to them, and how to behave with inspectors.

Selection criteria for tax commissions

In most cases, tax authorities select candidates for commissions based on the main criteria: losses, low salaries, large VAT deductions, low tax burden, etc. All criteria are listed in the letter of the Federal Tax Service dated July 17, 2013 No. AS-4-2/12722.

It is believed that inspectors call the tax commission to find out the reasons for deviations from the “norm”. However, as practice shows, the Federal Tax Service does not set the task of obtaining clear explanations from the taxpayer or understanding the situation. The main task is to convince the company to start paying more taxes and adjust past periods to a “normal” level.

Be that as it may, there is no need to be afraid of commissions.

Notice of summons to the commission

Unprofitable commissions

Who is being called? Companies that have shown a loss in their income tax return are invited to tax commissions to provide explanations as to why the losses arose. Moreover, the amount of the loss does not matter - for inspectors, the very fact of its existence is important.

However, the reasons for the unprofitability of the inspectors are of little concern. They are more concerned about the question of when the updated declaration will be filed and the additional income tax will be paid. However, the company should prepare clear explanations. It is possible that your inspector will find them convincing.

What to answer to inspectors. So, it is better to prepare written explanations of the reasons for the losses before the tax commission meeting. To begin with, it is worth writing that there are no contradictions in the declaration, and the loss is justified. And then name the reasons for the loss.

There are several arguments that may convince inspectors:

  • Unprofitability of the entire industry.
  • Data on the state of affairs in your industry can be found on the Moscow City Statistics website (see Reports on the socio-economic situation in Moscow for the corresponding period).
  • Losses only for certain types of company activities (which cover the profitability of others).
  • Increase in purchase prices (for example, you have imported raw materials); instability of exchange rates.
  • A decrease in purchasing power and, as a result, a decrease in sales.
  • Opening a new line of business for which returns are expected only in the future (in this case, tax authorities may ask for a business plan or forecast of when the company will make a profit).
  • Customer refusals of goods.

A company that does not appear at the commission or does not provide convincing arguments to justify the losses incurred risks being subject to on-site inspections by the tax authorities. Especially if the losses are shown in its annual income tax returns.

From our practice:
“One of our clients was called to an unprofitable tax commission. We justified our position in writing. The inspector accepted it, but also demanded to justify how the company exercised due diligence when working with unscrupulous contractors. We prepared a written response (see Appendix below) and he arranged the inspection.”

Salary commissions

For what salary will they call you to the tax office and what will they demand? It is a common misconception that only those companies whose employees receive less than the minimum wage (minimum wage) accepted for a given region are subject to salary commissions. We don’t risk talking about the whole of Russia, but in Moscow very often employers who pay wages equal to the minimum wage or even slightly more are called to salary commissions. Inspectors simply do not believe that employees of a capital company can earn 17-20 thousand rubles (in Moscow, the minimum wage since June 1, 2015 is 16,500 rubles). Now they are guided by industry average salaries (this data is regularly published on the Moscow City Statistics Service website in the “Publications” section > Official statistical publications of TOGS).

An invitation to the salary commission can be received by companies that:

  • They pay wages below the industry average in the region;
  • Have arrears in transferring personal income tax;
  • Personal income tax revenues decreased by more than 10% compared to the previous tax period.

What to answer to inspectors. At the commission meeting, inspectors are asked to take copies of the staffing table for the years of interest to them, as well as figures for the average number of employees and the average salary per employee.

How to justify low salaries:

  • Part-time work (in this case, in addition to the staffing table, it is worth taking to the commission an order to introduce a shortened schedule).
  • The main staff is located in regions with lower wages

A company that did not appear at the commission, did not present convincing arguments to justify low salaries, or promised to increase salaries, but never did, may find itself subject to on-site inspections.

From our practice:
“The client was called to the salary commission. We prepared copies of staffing tables for three years, calculated the average number of employees and wages by year, and also provided written explanations. In them, we emphasized that due to the difficult economic situation in the country and strong competition in the field of activity, the company was unable to maintain the previous level of orders. At the same time, general business expenses increased significantly. In light of these circumstances, the company not only did not have the opportunity to increase salaries, but also, in order to save money and create more favorable prices for its services, it had to attract personnel in the regions. In general, the average salary level in the company corresponds to the minimum wage levels in the regions.”

There are other grounds for invitation to the VAT commission, namely:

  • The company declared VAT refundable
  • The company does not respond to requests in writing (for example, it ignores a request to explain the discrepancy between deductions and sales from suppliers).
  • The company's counterparties have the characteristics of "fly-by-night companies."

What to answer to inspectors. There are objective reasons for large VAT deductions:

  • A lot of goods were purchased, but not sold, i.e. you can refer to significant purchases of goods in one of the tax periods, the presence of significant accumulated VAT for previous tax periods, etc. (however, it is now possible to “spread” deductions over periods, and not declare many deductions in one period - this helps to avoid commissions).
  • Specifics of the company's activities. For example, an organization purchases goods with a higher VAT rate and sells them with a lower one.

Companies that want to refund the tax will have to prove at a commission that the supplier was verified for good faith before the transaction was concluded and that the transaction itself is real. An extract from the Unified State Register of Legal Entities, the “primary” document for the purchase and delivery of goods, will be useful here.

Since in the eyes of tax authorities, VAT is the most “criminal” tax, inspectors will not take a long time to figure it out - they may simply refuse a refund.

Tax commission on arrears

Who is being called? For first-time defaulters, inspectors may first call and ask for a written explanation. If there is no response, the head of the company will be called for a personal conversation with the Federal Tax Service and even the Tax Administration (it all depends on the amount of the debt). Thus, chronic defaulters who ignore the demands of tax officials are most often called to tax commissions for arrears.

What to answer to inspectors. As a rule, a company's debts are explained by a difficult financial situation, which, in particular, is explained by the large debt of counterparties for work performed and services provided. In any case, inspectors should try to convince that financial difficulties are temporary and the arrears will soon be repaid.

It is not safe to ignore tax fees on arrears. Inspectors can immediately issue a collection (if the company has funds in the account) or begin collection at the expense of the property. But in a personal meeting, it is still possible to agree on the terms of repayment of the arrears.

Causes of tax debts according to the Federal Tax Service for Moscow
The Moscow Department of the Federal Tax Service of Russia analyzed the causes of chronic tax arrears in a number of organizations. As it turned out, the whole problem is “incorrect distribution of the order of payments.” For companies during a crisis, priority is given to repaying bank loans and settlements with counterparties to the detriment of transferring payments to the budget.

Tax burden commissions

Who is being called? The tax burden is calculated as a percentage of all taxes paid by the company to sales revenue. Moreover, each industry has its own. Here are the latest data on the industry average tax burden, which the Federal Tax Service is guided by. Even those companies that deviate from the normative values ​​for the first time are at risk of being subject to such a tax commission. During the conversation, the company will be persuaded to transfer part of its expenses, demand business plans and a list of measures aimed at increasing profits.

What to answer to inspectors. It is worth preparing explanations in advance for the low tax burden commission. Low profitability can be explained by the specifics of the activity, temporary difficulties, a new type of activity, etc. The deviation can be explained by an increase in expenses (for example, some unforeseen expenses arose), exchange rate differences, a drop in sales, etc. The causes of losses can also be very different : the company is developing, attracting loans, labor intensity is high, etc.

A company that ignores a call to the tax burden commission may be included in the on-site inspection plan. The greater the deviation of the tax burden indicator from the industry average, the higher the risk of inclusion in it.

Extraordinary commissions

Since the principles for selecting companies for tax commissions and the procedure for conducting them are not spelled out in the legislation, the very letter from the Federal Tax Service that we mentioned at the very beginning of the publication says in black and white that “other taxpayers” can be selected for consideration at the commission meeting.

In this regard, local tax officials are smart and conduct “amateur” commissions. Some, for example, arrange commissions for migrating companies. Particularly at risk are organizations that have moved from another region and still have outstanding tax debts and losses.

Other Federal Tax Service Inspectors conduct tax commissions for companies in special regimes. In particular, those who work on a simplified basis with the object “income minus expenses” and pay the minimum tax or show losses. In some places the so-called "industry" commissions– they invite representatives of the most problematic, from the point of view of inspectors, industry in the region. In Moscow, this is construction - it is in this area that violations of tax legislation are most often detected.

What is the CEO risking?

Of course, the company is required to attend tax commissions. The conclusion about this stems from the general right of the tax authority to call the taxpayer to give explanations in connection with the payment, withholding and transfer of taxes. For failure to appear at any commission, the general director can be fined 4,000 rubles. under Part 1 of Article 19.4 of the Code of Administrative Offenses of the Russian Federation.

As a rule, tax authorities invite the general director and really don’t like it when a company representative comes instead. It’s all very simple – it’s much easier to scare the CEO and, by threatening an on-site inspection, force the company to pay additional taxes or raise employee salaries.

However, if the company’s interests are represented at the tax commission by an experienced expert in the field of taxation and tax law, such “tricks” usually do not work for tax authorities.

If you have been called to a commission, we will be happy to help! We will communicate with the inspectors on behalf of your company and give convincing answers to all the inspectors’ questions.

Contact an expert

Letter No. ED-4-15/14490@ of the Federal Tax Service of the Russian Federation dated July 25, 2017 “On the work of the commission for the legalization of the tax base and the base for insurance premiums” regulated the activities of monitoring the payment of “shadow” wages (hereinafter referred to as Letter No. ED-4 -15/14490@). At the same time, the Federal Tax Service departments in the constituent entities of the Russian Federation were instructed to bring this letter to lower tax authorities and ensure its application.

From the article you will learn how candidates are selected for invitation to a meeting of such a commission and what to do when you receive an information letter from the inspectorate and a notice of invitation to the taxpayer.

For the first time, the rules for the work of tax authority commissions on the legalization of the tax base were formulated in Letter of the Federal Tax Service of the Russian Federation dated July 17, 2013 No.  AS-4-2/12722. By letter dated March 21, 2017 No.  ED-4-15/5183@ The Federal Tax Service canceled the effect of this letter regarding the organization of the work of commissions on the correct formation of the tax base and the completeness of payment by taxpayers (tax agents) of VAT, corporate income tax, corporate property tax, personal property tax, land tax, transport tax, single tax , paid under the simplified tax system, UTII, unified agricultural tax. At the same time, the cancellation did not affect the correctness of the formation of the tax base and the completeness of personal income tax payment.

Ultimately Letter no.  ED-4-15/14490@ Both of the above letters were canceled and updated rules for the work of the commission on the legalization of the tax base and the base for insurance premiums were established.

The tax department defines the purpose of the commission as follows: increasing the receipts of personal income tax and insurance contributions to the budget by encouraging taxpayers, tax agents, payers of insurance premiums, in respect of whom, in particular, facts of incomplete reflection in the accounting of business transactions, untimely (incomplete) transfer of personal income tax have been established and insurance premiums, falsification of tax and accounting reports.

Provisions Letters No. ED-4-15/14490@ determine the sequence of control measures to identify:

facts of reflection of unreliable information in tax and accounting reporting;

  • facts of payment of “shadow” wages;
  • facts of untimely transfer of personal income tax;
  • facts of untimely transfer of insurance premiums;
  • employers paying wages below the subsistence level or minimum wage;
  • employers who do not formalize labor relations with employees, as a result of which the tax base for personal income tax and the base for insurance contributions are underestimated.
Stages of work of tax authorities to legalize the tax base Selection of payers whose activities are subject to consideration at commission meetings based on information available in the tax authority and information resources
Carrying out analytical and control activities in relation to payers
Sending information letters to payers in order to encourage them to independently evaluate the submitted reports and changes in tax reporting, repay debts on personal income tax, insurance premiums and other actions
Preparation of materials for consideration by the commission
Consideration of the activities of payers at meetings of interdepartmental commissions
Monitoring of financial and economic performance indicators of payers whose activities were reviewed by commissions
Preparation of information regarding payers who have not taken measures to eliminate identified violations of legislation on taxes and fees, in order to:

Repeated consideration of their activities at meetings of interdepartmental commissions in local government bodies of constituent entities of the Russian Federation or interdepartmental commissions created under the administrations of constituent entities of the Russian Federation;

Consideration of the issue of scheduling an on-site tax audit

If there are grounds for calling the payer to review his activities at the commission, the tax inspectorate shall notify the payer's officials in writing of the summons to the commission, indicating the time and place of the commission meeting.

Selection by commission

The basis for selecting payers for invitation to the “salary” commission are lists that are formed by analyzing the available information on the financial and economic activities of payers, taking into account the specifics of calculation and payment of personal income tax, insurance premiums, in the event of, for example, bankruptcy, liquidation of the taxpayer and insurance payer contributions, etc.

The following groups of payers are subject to selection for consideration at the commission meeting:

  • taxpayers who have a low tax burden for personal income tax paid by individual entrepreneurs;
  • taxpayers - tax agents for personal income tax, who have arrears in remitting tax, have reduced personal income tax receipts relative to the previous reporting (tax) period by more than 10%, and pay wages below the average level for types of economic activity in the region;
  • Individual entrepreneurs who have declared a professional tax deduction in the amount of more than 95% of the total amount of income received during the tax period;
  • Individual entrepreneurs who reflected sales revenue in their VAT returns, but declared income equal to zero in the declaration on form 3-NDFL, or did not submit such declarations for the corresponding period;
  • payers of insurance premiums who have arrears in transferring contributions, who have reduced the receipt of contributions relative to the previous reporting (calculation) period with a constant number of employees, who have reduced the number of employees during the reporting period by more than 30% compared to the previous reporting period, who calculated insurance premiums in previous reporting periods contributions at an additional tariff of 9 or 6%, while applying other tariff rates in the current reporting period;
  • payers in respect of whom information has been received from competent sources of foreign states about the receipt by residents of the Russian Federation of income subject to taxation in the territory of the Russian Federation;
  • payers for whom there is information about receipt of income contained in requests from control and supervisory agencies, citizens, organizations, and other sources.

Analysis during the preparation of the commission

When preparing materials for consideration at commission meetings, an analysis of financial and economic performance indicators is carried out in relation to selected candidates, and tax control measures are carried out.

To analyze the activities of organizations and individual entrepreneurs, which are subject to consideration at commission meetings, the following are used:

  • data from information resources (USRN, Unified State Register of Individual Entrepreneurs, Unified State Register of Legal Entities, AIS “Nalog-3”, PIK “VAT”, SOUN, etc.);
  • information received within Art. 93.1 Tax Code of the Russian Federation;
  • information contained in the media and the Internet;
  • information received from credit institutions, law enforcement agencies, the Pension Fund of the Russian Federation, extra-budgetary funds, licensing authorities, customs authorities, municipal authorities, Rostrud, the Central Bank of the Russian Federation, etc.;
  • complaints, statements of legal entities and individuals;
  • information received from employees, shareholders (participants) of organizations;
  • information received from other sources.
IN Letter no.  ED-4-15/14490@ The directions of analysis are given, and the appendices to it contain recommended forms. So, the analysis is carried out in the following areas:
  • analysis of accounting data and other information characterizing the taxpayer (tax agent, payer of insurance premiums) (Appendix 1);
  • analysis of accounting (balance sheet) indicators (Appendix 2);
  • analysis of indicators of the level of wages paid by the tax agent, as well as the fulfillment of his obligations to calculate and transfer personal income tax (Appendix 3);
  • analysis of performance indicators for the calculation and transfer of insurance premiums (Appendix 4);
  • analysis of reporting indicators of individual entrepreneurs (Appendix 5).
Based on the analysis, tax risks are identified, and the summary results of the analysis are reflected in the form recommended in Appendix 6. In addition, in relation to payers selected for consideration of their activities at commission meetings, an analysis of the level of tax burden is carried out (the form is recommended in Appendix 7).

Sending an information letter

At the stage of preparation for the meeting of the “salary” commission, an information letter may be sent to the taxpayer (tax agent, insurance premium payer) (its form is given in Appendix 8 to Letter no.  ED-4-15/14490@).

The purpose of such a letter is to encourage organizations and individual entrepreneurs to independently analyze the results of commercial activities, identify the reasons for the low tax burden, the high proportion of professional deductions, understating the base for insurance premiums, low wages, repaying debts on personal income tax and insurance premiums, as well as correcting errors (distortions) of tax reporting.

The information letter reflects facts, deviations, contradictions and other issues identified during preparation for the commission meeting, the answers to which are planned to be obtained as a result of consideration of the activities of the taxpayer (tax agent, insurance premium payer).
In the information letter, inspectors propose, among other things:
  • clarify tax obligations (or obligations to pay insurance premiums) in the manner established Art. 81 Tax Code of the Russian Federation, including clarifying the amount of professional deduction, the amount of payments not subject to insurance premiums, thereby adjusting the basis for their calculation;
  • present the results of the SOUT if the payer calculates insurance premiums at additional rates;
  • pay off debts on personal income tax and insurance premiums;
  • calculate personal income tax and insurance contributions from the income actually received by employees of the organization that is subject to taxation;
  • Conduct an independent risk assessment in accordance with By order of the Federal Tax Service of the Russian Federation dated May 30, 2007 No.  MM-3-06/333@.
The information letter must be sent in advance - no later than one month before the date of the planned commission meeting.
The deadline for making a decision on submitting updated tax returns (calculations in Form 6-NDFL, calculations for insurance contributions), repaying debts on personal income tax and insurance contributions, providing explanations, reasons and circumstances explaining the existence of grounds for an invitation to the commission is established for the payer in within 10 working days from the date of receipt of the information letter.
After the expiration of the established period, the tax authority issues a notice of summons to the taxpayer (its form has been approved By Order of the Federal Tax Service of the Russian Federation dated 05/08/2015 No.  ММВ-7-2/189@) in the following cases:
  • failure to provide updated documents;
  • in case of non-payment of debt on personal income tax and insurance premiums;
  • in case of failure to provide explanations that provide reasoned reasons explaining the lack of grounds for an invitation to the commission.

Consideration of the activities of organizations and individual entrepreneurs at a commission meeting

The activities of the taxpayer, tax agent, and insurance premium payer at the commission meeting are considered on an individual basis. In this case, the representative of the organization (or individual entrepreneur) is invited to:

Provide explanations on identified facts and inconsistencies;

Clarify the activities carried out (or planned to be carried out) in order to improve financial and economic performance indicators and prevent violations of the legislation on taxes and fees.

Based on the results of the review, the commission formulates recommendations for eliminating violations committed during the formation of the tax base, the base for calculating insurance premiums, as well as for taking measures aimed at attracting the payer to pay debts on personal income tax and insurance premiums.

For example, it might be suggested:

submit updated calculations in Form 6-NDFL and calculations for insurance premiums for previous tax periods, in which it is necessary to clarify reporting indicators, including the costs of insurance premium payers to pay for insurance coverage, amounts not subject to insurance premiums, the amount of additional tariffs for insurance premiums and the amount of contributions calculated according to these tariffs, the number of employees in whose favor income is accrued;

  • transfer the amount of debt for personal income tax and insurance premiums, taking into account penalties;
  • take measures to eliminate negative trends in subsequent reporting periods.
Recommendations must contain a specific deadline for eliminating violations in accounting that resulted in an understatement of the tax base for personal income tax and the base for calculating insurance premiums. The recommended period is 10 working days from the date of consideration of the payer’s activities at the commission meeting.

Based on the results of consideration of the payer’s activities at the commission meeting, a protocol must be drawn up, which records:

The deadline for eliminating violations (distortions) in accounting that resulted in an understatement of the tax base for personal income tax and the base for calculating insurance premiums.

Information on the results of the work of the “salary” commission can be sent to law enforcement, regulatory and other bodies (for example, internal affairs bodies, territorial bodies of the Federal Migration Service, State Tax Service, etc.) for decision-making in accordance with their competence.

If employers pay wages below the subsistence level or minimum wage, information about such employers is sent quarterly to the tax authorities for appropriate measures:

At the territorial level - to local governments;

At the regional level - to the labor and employment authorities of the constituent entities of the Russian Federation and the State Labor Inspectorate for the constituent entities of the Russian Federation.

What to do if you receive a notification from the tax office?

According to pp. 4 paragraphs 1 art. 31 Tax Code of the Russian Federation The tax authority has the right to summon taxpayers (payers of fees or tax agents) on the basis of a written notification to give explanations in connection with their payment (withholding and transfer) of taxes and fees or in connection with a tax audit, as well as in other cases related to their compliance with regulations Tax Code of the Russian Federation, in particular, within the framework of the meeting of “salary” commissions.

The notice states:

A detailed description of the purpose of calling the taxpayer (fee payer, tax agent);

Date and time of appearance;

Address of the inspection and office number where you need to appear.

Notification of the call from the Federal Tax Service can be transmitted in one of the following ways:

To a representative of the organization in person against signature;

By registered mail;

In electronic form via TKS. In this case, it is necessary to send a receipt of receipt of the notification to the Federal Tax Service Inspectorate via TKS within six working days ( clause 5.1 art. 23 Tax Code of the Russian Federation). If this is not done, the inspectorate may block the organization’s bank accounts ( pp. 2 p. 3 art. 76 Tax Code of the Russian Federation).

The interests of an organization can be represented by its head or representative acting by proxy ( clause 1 art. 26, clause 1 art. 27, clause 1 art. 29 Tax Code of the Russian Federation).

If you don’t come to the meeting of the “salary” commission

The absence of a taxpayer, tax agent, or insurance premium payer is recorded in the minutes of the commission meeting.

If a taxpayer (tax agent, insurance premium payer) fails to appear at a commission meeting for a valid reason, the meeting may be postponed. In this case, the notification is sent again in the form approved By Order of the Federal Tax Service of the Russian Federation No.  ММВ-7-2/189@.

In case of failure of duly notified payers to appear at the commission without a good reason, they will be subject to mandatory liability measures provided for Art. 19.4 Code of Administrative Offenses of the Russian Federation.

According to Part 1 Art. 19.4 Code of Administrative Offenses of the Russian Federation disobedience to a lawful order or requirement of an official of a body exercising state supervision (control), state financial control, an official of an organization authorized in accordance with federal laws to exercise state supervision, entails a warning or the imposition of an administrative fine:

For citizens - in the amount of 500 to 1,000 rubles;

For officials - from 2,000 to 4,000 rubles.

In addition, in relation to payers who did not appear at the commission meeting without good reason and whose reporting data does not indicate a positive change in their financial condition, the following measures may be taken:
  • repeated call to the interdepartmental commission at local governments;
  • a call to the interdepartmental commission under the administrations of the constituent entities of the Russian Federation (in relation to state and municipal unitary enterprises, joint-stock companies with the participation of capital of the Russian Federation of the corresponding constituent entities of the Russian Federation or municipalities);
  • carrying out pre-test analysis in the prescribed manner;
  • preparation of materials for scheduling an on-site tax audit.

Subsequent monitoring and analysis of taxpayer reporting

Even after the taxpayer has attended the “salary” commission and signed the corresponding protocol, the tax authority will monitor his activities. This is due to the need to monitor the implementation of the recommendations specified in the protocol. Letter no.  ED-4-15/14490@ The following types of monitoring are provided.
Quarterly monitoring Conducted in the context of personal income tax and insurance premiums:

Analysis of updated tax returns submitted after the commission meeting with an increase in tax liabilities and determination of the amounts of personal income tax (insurance contributions) additionally received by the budget (the forms given in Appendices 10, 11, 15 are filled out);

Control over the repayment of debt on personal income tax and insurance premiums (Appendices 12, 16);

Dynamics of headcount and wages (Appendix 13);

Dynamics of tax burden indicators (Appendix 7)
Monthly monitoring Tracks changes in the receipt of personal income tax and insurance contributions to the budget and is carried out in relation to tax agents who have arrears in transferring personal income tax, and payers of insurance contributions who have arrears in transferring insurance contributions, paying wages below the average level according to the codes of types of economic activity (Appendices 14, 17 )

If the results of the monitoring do not reveal positive trends and officials (individual entrepreneurs) do not provide reasonable explanations, the entire package of documents for these taxpayers will be transferred to the pre-audit analysis department to consider inclusion in the plan of on-site tax audits.

Federal Tax Service in Letter no.  ED-4-15/14490@ presented an updated operating procedure for “salary” commissions. One of the features of this document is that its effect will extend to the analysis of data on the accrual and payment of both personal income tax and insurance premiums. The selection of payers whose activities are subject to consideration by the commission is carried out on the basis of lists that are formed by analyzing the available information on the financial and economic activities of payers. Taxpayers who do not appear at this commission without a good reason or who do not comply with the recommendations of tax officials based on the results of the commission meeting may be subject to administrative liability. In addition, on-site tax audits may be initiated against them.

Recently, the number of requests from tax authorities has been steadily growing. They ask for all kinds of data - an explanation of the reasons for the loss, the amount of the tax burden, the presence of a system for assessing the integrity of counterparties, and much more. Along with this, quite often the tax authorities’ complaints relate to the amount of wages, which are “below the industry average.”

Very often this remark puzzles accountants. And no wonder. Firstly, it is often very difficult to understand what the industry average wage is. After all, probably only a beginner will think that there is only one such indicator. The average industry salary can be for a specific city (region), or it can be regional.

Secondly, it is not so easy to verify the level of wages for this indicator. After all, the requirement indicating the required value in any case already comes after the fact, that is, when it is almost impossible to correct past periods. At the same time, there are often cases of incorrect preparation of a request, in which the size of the industry average wage is simply not indicated at all, and even the performer is unknown.

And what to do in such a situation? Of course, the most important thing and the very first thing is not to panic, but to calmly figure it out.

Order of the Federal Tax Service of Russia dated May 30, 2007 No. MM-3-06/333@ “On approval of the Concept of the planning system for on-site tax audits” defines the planning system for on-site tax audits, and at the same time establishes risk assessments for taxpayers used by tax authorities in the process of selecting objects for conducting on-site tax audits.

Thus, paragraph 5 of this order determines that one of the criteria for assessing risks for taxpayers is the payment of an average monthly salary per employee below the average level for the type of economic activity in a constituent entity of the Russian Federation.

It immediately becomes clearer what industry average value should be considered. In this case, the subject of the Russian Federation will not be the specific city in which the taxpayer is registered, but the subject of the Russian Federation. The list of subjects is given in Article 65 of the Constitution of the Russian Federation.

For example, an organization registered in the city of Smolensk and belonging to the Federal Tax Service of Russia for the city of Smolensk will take the industry average for the Smolensk region.

We didn't have time

But quickly obtaining these values ​​will be problematic, despite the fact that the data in question is open - statistics summarize official results, which are made publicly available, with a certain objective delay.

For example, at the current time (August 2018), data for May 2018 is available on the statistics website (https://www.gks.ru/wps/wcm/connect/rosstat_main/rosstat/ru/statistics/wages/). And even without a breakdown by region of the country. Therefore, it will be possible to correct the discrepancy that has arisen only in the future.

Although, we emphasize, this is not at all necessary. After all, in fact, it turns out that the size of the industry average wage only affects whether the taxpayer will be included in the lists for tax audit. But the law does not establish fines or even an obligation to maintain wages equal to or higher than the industry average. After all, administrative liability is established only for the payment of wages below the minimum wage.

The letter of the Federal Tax Service of Russia for the Moscow Region dated July 23, 2007 No. 18-19/0372 states that additional accruals of “salary” taxes do not directly depend on the level of the average salary. Tax will be assessed additionally only if it is established that the taxpayer has paid “shadow” wages or if any errors are identified that resulted in incomplete payment of taxes.

Judges also say this (Resolution of the Federal Antimonopoly Service of the Moscow District dated July 30, 2007 No. KA-A41/7118-07 in case No. A41-K2-3115/07). By decision of the Supreme Arbitration Court of the Russian Federation dated December 5, 2007 No. 15995/07, the transfer of this resolution to the Presidium of the Supreme Arbitration Court of the Russian Federation for review in the order of supervision was refused.

A similar conclusion was made by the Federal Antimonopoly Service of the West Siberian District in the Resolution of October 30, 2008 No. F04-6627/2008 (15063-A45-25) in case No. A45-1955/2008, in the Resolution of May 21, 2009 No. F04-2979/2009 ( 6530-A81-37) in case No. A81-1884/2008, in the Resolution dated April 27, 2010 in case No. A81-3998/2009.

Objective reasons

But, of course, you don’t want to get caught by the tax authorities either. Especially if there are objective reasons for paying wages below industry standards.

You need to calmly understand the situation and present objective arguments in your response to the tax authority.

For example, if accruals were less than the industry average due to the fact that employees were on sick leave, on unpaid leave, worked part-time under the terms of employment contracts, etc., then these explanations should be stated in the response.


EXAMPLE 1. “EXPLANATORY” NOTE

The level of payment at our enterprise, compared with the industry average wage, was determined incorrectly by the tax authority, only using formal numerical values.

However, it is necessary to take into account the fact that the enterprise has people who work part-time based on the specifics of the enterprise.

For example, D.V. Mironov, acting as chief accountant with a salary of 18,000 rubles. According to the employment contract, he must work no more than four working hours a day. His responsibilities include consolidated control of primary documents, identification of errors, and generation of tax reporting based on the results of work for the quarter.

And in accordance with clause 79.3 of Rosstat Order No. 772 dated November 22, 2017 “On approval of the Instructions for filling out federal statistical observation forms No. P-1 “Information on the production and shipment of goods and services”, No. P-2 “Information on investments in non-financial assets", No. P-3 "Information on the financial condition of the organization", No. P-4 "Information on the number and wages of employees", No. P-5 (m) "Basic information on the activities of the organization"" persons who worked part-time in accordance with the employment contract, staffing schedule, or transferred with the written consent of the employee to work part-time, when determining the average number of employees, they are taken into account in proportion to the time worked.

Thus, when recalculating the amounts of wages for full-time work according to the methodology of Rosstat of the Russian Federation, we find that the amount of wages at the enterprise is not only not lower than the industry average, but significantly exceeds it.

Based on the above, there are no negative deviations of wages from the industry average wage level.

If, nevertheless, it is established that the tax authority is correct regarding the correspondence of the actual level of wages to the industry average, you need to understand what the magnitude of the discrepancy is, how well the statistical indicator corresponds to the objective economic reality in your area.

After all, the “average temperature in the hospital” will not always reflect the condition of a particular patient. All these arguments must also be presented in a substantiated manner in the answer.


EXAMPLE 2. REASONS FOR DIFFERENCES

Excerpt from the response to the tax authority (numeric values ​​are conditional):

The salary at our enterprise is 21,200 rubles, which is indeed lower than the industry average salary in our region, which is 27,380 rubles. However, we do not have the financial ability to increase wages for certain economic reasons. Strong competition and low prices for our services do not allow us to take such a step. Our net profit for the last reporting period amounted to 182 thousand rubles. We are planning to renovate our office building, the planned cost of which will be 130 thousand rubles.

At the same time, our organization employs 15 people. Increase in wages by 6180 rubles. (27,380 rubles - 21,200 rubles) will lead to an increase in expenses by 92,700 rubles, which, together with the planned repair costs, will negatively affect the financial condition of the organization and will result in a loss in the amount of 40.7 thousand rubles. (182 thousand rubles – 130 thousand rubles – 92.7 thousand rubles).

Thus, at the moment our organization does not have the financial ability to increase wages.

Naturally, the arguments may be different. There may be a comparison of real wages with the minimum wage, the presence of losses, and upcoming large investment projects that affect the solvency of the company. The main thing is that they are justified.

And, of course, another option is to increase payment to the recommended amount.


EXAMPLE 3. NOT GUILTY, BUT WE WILL CORRECT

Excerpt from the response to the tax authority:

Your request regarding the fact that the salary level in our organization is below the industry average has been carefully considered. After analyzing the financial condition of our company, it was decided to increase wages to the recommended amount from the 1st of the next month.

The accountant and the management of the enterprise must carefully evaluate all possible options for action, the pros, cons and consequences, and after that, be sure to draw up a written response to any option.

Sergey Danilov, "PB" correspondent

The heads of those companies that pay wages below the average level for types of economic activity, taking into account data on “low-wage” organizations, are invited to the “salary” commission.

Moreover, the function of the “salary” commission is not to increase wages for employees of enterprises (for this there are organizations that regulate labor relations), but to bring hidden forms of remuneration out of the shadows (letter of the Federal Tax Service of Russia for Moscow dated August 8, 2007 No. 15-08 /075418).

Legal status of the “salary” commission

The legal status of the “salary” commission is not defined by any regulations. There is no such concept in labor, tax or civil legislation. As a rule, they act on the basis of orders from local authorities. Thus, in Moscow, such a commission is guided by the order of the Federal Tax Service of Russia for the city of Moscow dated February 22, 2008 No. 96 and the order of the Moscow government dated May 24, 2006 No. 867-RP “On the interdepartmental commission of the Moscow Government for the interaction of public authorities of the city of Moscow, Federal government bodies, enterprises and organizations of the city of Moscow on issues of remuneration, payment of taxes and insurance contributions."

Commissions created in the regions are guided by similar orders. But the main document, which is the primary basis for the formation of “salary” commissions, is the recommendations of the Federal Tax Service of Russia, set out in the Basic Provisions for the implementation of the letter of the Federal Tax Service of Russia dated May 18, 2007 No. MM-14-02/220dsp@ “On the work of tax authorities with unprofitable organizations”, communicated by letter of the Federal Tax Service of Russia dated August 30, 2007 No. SK-14-02/343dsp@.

Despite the unsettled status, you should not ignore the invitation to the “salary” commission. A refusal may be followed by a priority tax audit. Also, company materials can be transferred to the city labor inspectorate or prefecture. In addition, a fine of 2,000 to 4,000 rubles may be imposed on the head of the company under Article 19.4 of the Code of Administrative Offenses for disobedience to a legal order of an official of the body exercising state supervision (control). Since the right to demand explanations from taxpayers is enshrined in Article 31 of the Tax Code. It should be noted that the correctness of this approach has also been confirmed by court decisions (resolution of the Federal Antimonopoly Service of the Far Eastern District dated November 1, 2007 No. F03-A51/07-2/4597).

On the other hand, since there is no regulatory regulation of the actions of “salary” commissions at the legislative level, then there is no regulation of attendance on them. Therefore, the manager can visit the commission in the company of relevant specialists: an accountant, lawyer, financier, consultant, etc. Any employee can also represent the company on the basis of a properly executed power of attorney.

Salary amount

Regulatory authorities pay close attention to the amount of wages paid by firms to their employees, because wages are the main component of the base for calculating insurance premiums and personal income taxes. If the official wages of employees are below the industry average, then controllers assume that in addition to such wages, money is paid that is not taken into account for taxation: the so-called payments in “envelopes,” “shadow” or “gray” wages.

It should be noted that the concept of “industry average salary level” is used only for statistical data. Neither labor nor tax legislation provides for such a concept.

Labor legislation operates with the concept of “minimum wage”. Thus, according to Article 133 of the Labor Code, the monthly salary of an employee who has fully worked the standard working hours during this period and fulfilled labor standards (labor duties) cannot be lower than the minimum wage. In addition, a regional agreement on the minimum wage may establish the amount of the minimum wage in a constituent entity of the Russian Federation (Article 131.1 of the Labor Code of the Russian Federation). It can be established for employees working in the territory of the corresponding constituent entity of the Russian Federation, with the exception of employees of organizations financed from the federal budget.

Dangerous moment

The legal status of the “salary” commission is not defined by any regulations. However, you should not ignore the invitation. A refusal may be followed by a priority tax audit. In addition, a fine may be imposed on the head of the company, since the right to demand explanations from taxpayers is enshrined in Article 31 of the Tax Code.

The size of the minimum wage in a constituent entity of the Russian Federation is determined taking into account socio-economic conditions and the cost of living of the working population in the corresponding constituent entity of the Russian Federation. It cannot be lower than the minimum wage established by federal law. Failure to comply with these provisions is a violation of labor laws, which entails a fine in accordance with Article 5.27 of the Code of Administrative Offenses:

  • for officials from 3,000 to 5,000 rubles;
  • for organization from 30,000 to 50,000 rubles.

In addition, violation of labor and labor protection legislation by an official who has previously been subjected to administrative punishment for a similar offense entails disqualification for a period of one to three years.

Please note that the minimum wage in force in Moscow is (agreement dated December 2, 2010 “On the minimum wage in the city of Moscow for 2011 between the Moscow Government, Moscow trade union associations and Moscow employers’ associations”):

  • from January 1, 2011 – 10,400 rubles;
  • from September 1, 2011 – 10,900 rubles.

The size of the “industry average” salary

Those managers whose average salary in the company is less than the industry average are invited to the meeting of the “salary” commission.

The definition of “industry average salary”, which is used by inspectors, is mentioned in the “Concept of a planning system for on-site tax audits”, approved by order of the Federal Tax Service of Russia dated May 30, 2007 No. MM-3-06/333@. This order also approved publicly available criteria for self-assessment of risks for taxpayers, used by tax authorities in the process of selecting objects for conducting on-site tax audits. One of the criteria is “payment of the average monthly salary per average-level employee by type of economic activity in a constituent entity of the Russian Federation.”

Sources of obtaining information on statistical indicators of the average level of wages by type of economic activity in a city, region or in general for a constituent entity of the Russian Federation are also determined by the above order:

  • official websites of territorial bodies of the Federal State Statistics Service (Rosstat). Information about the addresses of these Internet sites is located on the official Internet site of Rosstat www.gks.ru;
  • collections of economic and statistical materials published by territorial bodies of Rosstat (statistical collection, bulletin, etc.);
  • requests to the territorial body of Rosstat or the tax authority in the corresponding constituent entity of the Russian Federation (inspectorate, department of the Federal Tax Service of Russia for the constituent entity of the Russian Federation);
  • official websites of the departments of the Federal Tax Service of Russia for the constituent entities of the Russian Federation after posting the relevant statistical indicators on them. Information about the addresses of Internet sites of the departments of the Federal Tax Service of Russia for the constituent entities of the Russian Federation is located on the official Internet site of the Federal Tax Service of Russia www.nalog.ru.

Having analyzed publicly available information about the value of the “industry average salary”, it is possible to predict a call to the “salary” commission.

Defend your position

When you come to the “salary” commission, you must be prepared for the fact that the controllers will try to find out the reasons for what they consider to be low salaries. In addition, they will try to catch the company having salaries in “envelopes”. It should be noted that controllers do not have any evidence to accuse the enterprise of evading its obligations to the budget and extra-budgetary funds. Committee members can only ask questions to which reasoned answers must be given.

Firstly, the commission is always interested in why the company’s salaries are lower than the industry average for such organizations. Let us recall that controllers try to interpret low wages as the company’s dishonesty (payment of wages in “envelopes”, use of “gray” schemes).

Attention

Controllers try to interpret low wages as the company’s dishonesty. However, they do not have any evidence to accuse the enterprise of evading its obligations to the budget and extra-budgetary funds. Members of the commission do not have the right to impose additional charges or fines based on “speculation”; they are only competent to ask questions to which reasoned answers should be given.

There can be many answer options, it all depends on the specific circumstances.

1. The company has just begun to operate, so the activity at the initial stage does not bring profit or all funds are directed to the development of production. A similar response is also possible when opening a new direction, re-equipping or repurposing production.

2. Temporary difficulties are a universal reason that is also easily explained. For example, changes in market conditions, decreased funding, decreased demand and reduced sales markets. And one should not discount the financial crisis, the consequences of which have not yet been overcome.

3. The presence of part-time workers is a fairly popular and objective reason for low salaries. As you know, part-time workers do not work full time, so they are paid wages only for the time worked. But the employment contracts set out completely market wages.

4. Special bonus system. This explanation is suitable for trading and other non-production companies, where the effectiveness of an employee is determined by the result achieved. For example, the number of transactions concluded or products sold, and not the number of hours spent at work. The motivation system involves dividing wages into two parts: salary and bonus. Moreover, bonuses may be paid not monthly, but once a quarter or year, and in some cases not paid at all if the employee does not achieve a certain result fixed in the bonus regulations.

Members of the “salary” commission are also interested in the reason for the transfer to the company of workers whose salary at their previous place of work was higher than their current one.

You can also prepare several answers to this question.

1. An employee was hired who was laid off from his previous employer. The newly hired employee decided that it was better to have a small (compared to his previous job) but stable income than to be unemployed and live on benefits.

2. The employee is more interested in criteria such as convenient office location and flexible work schedule.

The “salary” commission is also interested in such an indicator as accountable amounts. Controllers believe that money issued on account is a hidden form of wages, especially if the indicators on the issuance of amounts on account are quite high.

In this case, members of the commission should explain that cash is issued on account in strict accordance with the Procedure for conducting cash transactions approved by the Central Bank of the Russian Federation and the Regulations on accountable funds in force at the enterprise. Particular attention should be paid to the fact that money on account is issued only if the employee fully reports for the previous advance. If necessary, then as evidence you can present the local Regulations on accountable funds, acts of cash discipline inspections carried out by the servicing bank, acts of inventory of accountable funds, advance reports, cash receipts and expenditure orders.

Special rules

Another information that is the subject of clarification at the “salary” commission is the source of expensive purchases made by the company’s employees (apartments, cars).

In such a situation, it should not present any evidence that the company is not hiding payments. The accounting records of an enterprise contain information only about those employee incomes, the source of which is the enterprise itself. Income that an employee receives outside of the employer is not subject to company accounting. The source of an employee's expensive purchases is the employee's own business. In the end, he may have additional income (part-time, under contract agreements), he can take out a loan from a bank or borrow from friends, receive an inheritance or sell an old car (apartment). In any case, the employee’s income received outside the company cannot be the subject of interest and verification of the enterprise.

Sometimes at “salary” commissions they ask for clarification regarding the payment of monthly dividends. But such questions arise in rare cases, since dividends, as a general rule, are paid annually or quarterly. In addition, they are not widespread, because not all employees can be participants or shareholders. But if a problem arises, then you need to keep the following in mind. In order for dividends to be recognized as such, they must meet the concept of dividends, namely, be paid from net profit, which is formed on the basis of accounting data at the end of the year. In addition, they must be properly documented: minutes of meetings of participants or shareholders (Article 42 of the Federal Law of December 26, 1995 No. 208-FZ, Article 28 of the Federal Law of February 8, 1998 No. 14-FZ). If all the necessary conditions are met, then there will be no problems (resolution of the Federal Antimonopoly Service of the East Siberian District dated August 11, 2005 No. A33-26614/04-S3-F02-3800/05-S1).

Parting words

In conclusion, it is necessary to recall that the function of the “salary” commission is not to increase wages for employees of organizations, but to bring hidden forms of remuneration out of the shadows. If a company’s wages are taken into account in full when paying insurance premiums, as well as personal income tax, then there will be no claims against it (letter of the Federal Tax Service of Russia for Moscow dated August 8, 2007 No. 15-08/075418).

It should also be borne in mind that the “salary” commission operates with statistical data that is not suitable for a comprehensive and complete analysis of the company’s activities. In addition, each enterprise conducts its activities individually, acting at its own peril and risk. Therefore, the approach should be individual, and not an average statistical one. And if the head of an enterprise succumbs to persuasion and decides to raise wages at the facility entrusted to him, then it is better to do this not abruptly, but gradually, following a certain schedule. Then the salary increase will look justified, and no one will even be able to think that the existence of the schemes did exist.

When deciding to increase wages, you should remember that this will lead to an increase in the tax burden and may cause the manager to be called again to give explanations. But already on a “unprofitable” commission.

When going to the “salary” commission, you should not be afraid that your explanations will conflict with the explanations of the workers, since it is not intended to invite the workers themselves to the meeting of the “salary” commissions (letter of the Federal Tax Service of Russia dated December 2, 2009 No. 3-5-04 /1774).

O.E. Cherevadskaya, Audit Director of CJSC Financial Control and Audit, Doctor of Economics