Employees-IP: how to avoid problems with the tax
A business cannot exist only at the expense of its creator and ideological inspirer: the involvement of professionals from the outside is inevitable. But paying the employee a “white” salary, the entrepreneur must also pay personal income tax and insurance premiums to the budget. As a result, many companies force employees to register as IP, offering more favorable conditions. How to hedge the risks that such a scheme generates – we will describe in the articleThe main risk of using such a scheme is that during the verification process the tax authority may find out that the essence of the civil contract with the individual entrepreneur is completely different: under the mask of the contract for the provision of services (contract), a labor agreement is hidden. What are the signs of a contract with an individual entrepreneur that may give tax a thought on retraining? We suggest considering specific examples of risks, and how they can be reduced.
The presence in the contract of duties / functionality of the IP in the absence of a specific result
The contract for the provision of services / contracts should be aimed at a specific result, which is paid by the customer. The essence of the employment contract is the fulfillment of the labor function. And this must be clearly understood when transferring labor relations to market rails. Therefore, the contract with the “IP employee” should be drawn up according to the following scheme: the contractor does the work / provides the service, the customer accepts and pays for it.
Long-term experience of “work” IP
The contract with the IP should not be concluded for a specific period and should be constantly renewed. On the contrary, its validity should expire with the receipt by the customer of a specific result. Long-term relationships with IP employees can be built by concluding a fixed-term contract, which will necessarily spell out the possibility of coordinating the terms of reference within the framework of additional agreements. So you emphasize the focus on results.
Contract Payments Too Similar to Salary
Most often, the companies came across the most obvious: the contract stipulated that the same amount is paid twice a month to the individual entrepreneurs. In fact, this is a salary system with a monthly advance, as in the Labor Code. To eliminate risks, it is necessary that the payment depends on the result, work or service. After all, it is not the term of work that should be paid, but its quality and quantity.
Building relationships according to the labor model
There are several aspects to this. First of all, the disciplinary responsibility of the contractor is unacceptable. Everything is strictly according to the canons of civil turnover: forfeit for non-performance or improper performance of the contract and compensation for damages.
In addition, the customer does not provide a workplace, does not establish work schedules – you can agree to the maximum that the company will provide the IP with some materials for work. If a company wants to check how an employee does work, then this should be spelled out in the contract only from the point of view of reports / quality control of execution, without any intervention in the process itself.
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IP works with only one company for many years
This feature was developed by judicial practice and enshrined at the highest level by the Supreme Court in February 2017. The logic is simple: a normal entrepreneur, in order to develop a business, establishes cooperation with various contractors. If you want to formalize your employee as an IP, then this risk will be inevitable: it can be leveled if you manage to circumvent other sharp corners.