In a published material explanations of experts in the tax matters of the income of members of farms are made.
TAXATION of the INCOME of MEMBERS of FH
The subject of our next discussion is quite actual for farms as the income which are paid to their members, have the special status.
In conversation participate: lawyer of the Balans-Klub company Elena KANTERMAN; head of department of Department of the taxation of individuals of GNA of Ukraine Tatyana DOBRODIM; the deputy director of Department of receipt of the income – the head of department of methodology of ensuring payments in the Pension fund of Ukraine of PFU Lyudmila SHHIPKA; the deputy director of Executive management of Fund socialnogo insurance on temporary disability Alexander LEONOV; the head of the insurance department on a case of unemployment of the Ministry of Labour and social policy of Ukraine Tatyana USTINOVA; head of department of the accounting of insurers and ensuring receipt of the income of Executive management of Fund of soyotsialny insurance upon occupational accidents and occupational illnesses of Ukraine Natalia ZELENSKAYA; head of department of methodology of statistics of a labor market of Department of statistics of work of Goskomstat of Ukraine of Tatyana BOTCHKAREV.
- Elena KANTERMAN, tells about legal status of members of FH in relation to an economy.
According to the Law on FH spouses, their parents, children who have reached 14-year age, other members of the family, relatives who united for the general maintaining FH (Art. 3) can be members of a farmer hozyayyostvo.
The law allocates two look working in FH:
• the members of FH carrying out activity in this economy and being relatives;
• hired workers with whom the written employment contract and on which rasprostranyayutsya all standards of the labor law consists.
I pay attention to such important point: it is impossible to be at the same time hired worker and the member of FH (p.1 Art. 3 of the Law on FH).
According to the mentioned Law labor relations in an economy are regulated by members of FH. As a rule, the relations connected hardly of members of FH, are defined in the Charter or other internal documents of an economy (for example, in the relevant provisions approved as meeting of members of FH).
And this Law doesn’t demand, that the relations regulating work of members of FH, completely sootvetstvovali to the labor law (unlike hired workers for whom such requirement is directly provided h. 2, 4 Art. 27 of the Law on FH).
I will notice also that in FH are conducted labor knizhki both on hired workers, and on members of FH (if they work in an economy). Records in the service record should be certified by the signature of the head, the deputy, other authorized person of local body of the state executive authority and zaverena the press of this body (Instruction No. 58 item 4.1).
So, we will sum up. Members of FH aren’t hired workers, but some labor guarantees on them extend. Labor relations of members of FH are regulated by them in the internal documents.
- Whether it is possible to include members of FH in the staffing table?
Yes, it is quite possible. Ukraiyona’s legislation doesn’t define the concept "staffing table". However, as appears from established practices, it is the organizational and administrative document of the enterprise in which its internal structure is reflected, the list of positions with the indication of their quantity and the sizes of compensation (it concerns hired workers).
According to Art. 64 of the Economic code the enterprise independently defines organizational strukturu and number of staff. Therefore the order of drawing up of the staffing table can be approved by FH Charter. If such order in it is mute isn’t present, members of FH at the meeting can define it and fix in protokole meetings or in the relevant situation. Inclusion or a non-inclusion of members of an economy in the shtatyony schedule doesn’t influence in any way their legal status: hired workers all of them equally don’t become.
As the order of drawing up of the staffing table legislatively isn’t written out to avoid confusion about communication with supervisory authorities, rekomenyoduy in this schedule to differentiate two categories of the working: to allocate the section for hired workers and separately to specify members of FH.
- Whether the payment for work which is received by members of FH, a salary is? If isn’t present, what its legal status?
No, it is impossible to consider this payment as a salary, as according to the Law on compensation a zarayobotny payment – this compensation paid to the worker for work performed by it according to the truyodovy contract (Art. 1). And as we noted above, with members of FH the employment contract doesn’t consist. Thus, other legal status, rather than a salary have payments to members of FH. Besides, the Instruction No. 5 didn’t provide reference of payment to members of FH to a wages fund.
The law doesn’t define legal status of this payment, however according to Methodical recommendations No. 189 (item 7.12) it is the income of FH distributed between his members is proportional to their labor contribution. Doyobavlya that Methodical recommendations aren’t the normative legal act therefore members of FH can distribute the economy income differently, for example, in a soyootvetstviye with the size of contributions to an authorized capital of FH.
Periodicity of payments of the distributed income, distribution poryayodok, the size are established etc. by members of FH (for example, payments can be carried out in the advance payment monthly, quarterly or once a year after definition of the sum of profit). I turn a vniyomaniye: the amount of payments to members of FH isn’t adhered in any way to the size of the minimum salary as that payment aren’t.
Now the questions connected with taxation of the income of members of FH by taxes and social contributions, we address to representatives of tax administration and Funds socstraxa.
- Tatyana DOBRODIM explains, how the personal income tax the income paid by a farm to the members within a year is assessed, whether is applied to this income of NSL.
Compensation of members of FH (i.e. payment of the income by it) is made by results of an economic deyayotelnost of such FH from the profit which has remained after a covering of expenses, tax payment, collecting and other payments, or otherwise according to the arrangement provided by the charter of this economy. Such payments aren’t connected with the relations of labor hiring and aren’t a salary.
However in understanding of the Law No. 889 they are doxodami members of FH. After all according to item 1.2 of this Law the income – is the sum of any means, cost of materiyoalny and non-material property, other assets having cost, received by the taxpayer in a property or added in its advantage during the corresponding reporting tax period.
The income paid to members of FH, joins in structure their the general monthly nalogooblagaemogo the income and personal income taxes on a rate of 15 % (Law No. 889 subitem 4.2.12) are assessed.
At payment of the income to the members of FH is the nayologovy agent and it is obliged to hold from this income and to transfer into the personal income tax budget, and also to fill and present to body of GNS in a place of the registration tax accounts in a No. 1DF form.
As to NSL, according to Law No. 889 Art. 6 it is applied only to the income of a nayologoplatelshchik added in the form of a salary. And as it was already noted, the income paid to members of FH, isn’t a salary therefore NSL to them isn’t applied.
I pay attention: if members of FH are voluntary insured in PFU and in funds of obshcheobyazatelyyony state social insurance, at personal income tax calculation the sum of the income received from FH doesn’t decrease by the sums of contributions of these funds. After all according to Law No. 889 item 3.5 the income decreases by the sum of contributions in the form of a salary only.
- Lyudmila SHHIPKA, explains: – whether members of FH are subject to obligatory pension insurance? Whether it is necessary to charge and pay insurance fees for the sums of the income which within a year the economy pays to the members? If it is necessary, on what rate if the economy is the payer of the fixed agricultural tax?
According to the Law No. 1058 to obligatory gosuyodarstvenny pension insurance are subject, in particular:
• the persons working at conditions of the employment contract (contract) or on other conditions, provided by the legislation, or under contracts of civil-law character (Art. 11 item 1);
• members of farms, including chosen a special way of the taxation (Art. 11 item 2).
Thus, members of FH and the persons working in it is mute on a labor or civil-law dogoyovor, treat the insured persons and are subject to obligatory state pension insurance.
Object on which insurance contributions are assessed, the salary of hired workers and doxod, FH distributed between members and podlezhayoshchiya to personal income tax taxation (p.1 Law No. 1058 Art. 19) is.
According to item 8 of Final provisions of the Law No. 1058 insurance fees are paid by strayokhovatel and the insured persons on conditions and as it should be which are defined by this Law, and in the sizes provided by the Law No. 400.
The size of a rate on which contributions from the income of members of FH which are not hired workers and not performing works on contracts of civil-law character in this economy should be paid, isn’t established by the Law No. 400.
In this regard the members of FH who are not his nayemyony workers (the labor doyogovor isn’t concluded with them), aren’t insured in system of obligatory state pension insurance. Sledovayotelno, they have the right to take voluntary part in such insurance. The order of voluntary insurance is provided by Art. 12 of the Law No. 1058 and the Instruction No. 21-1.
For the persons taking voluntary part in sisteme of obligatory state pension insurance, for 2008 the rate of 33,2 % is established.
However I will notice that there are cases when FH makes out the members according to employment contracts and charges them a zayorabotny payment, as to hired workers. In that case, if FH is the payer of the fixed selskoyokhozyaystvenny tax, it pays insurance fees for hired workers (irrespective of their membership in this economy) by which the salary, on the special rate making in 2008 of 19,92 % is charged.
- Alexander LEONOV, answered questions: whether members of FH are subject to obligatory social insurance in connection with temporary disability? Whether should charge an economy to (hold) insurance fees for the sums of the income paid within a year to the members? Whether members of FH have the right to receive material security and social services from the Social Insurance Fund on temporary disability?
Recognizing that members of FH there can not be the persons working in is mute according to the employment contract (to Art. 3 of the Law on FH), and also considering standards of Art. 6 of the Law No. 2240, members of FH aren’t subject to obligatory social insurance in connection with temporary loss of a trudospoyosobnost. Respectively on their income of FH shouldn’t charge to (hold) insurance fees.
However members of FH can take part in this type of the state social insurance on the dobroyovolny beginnings and in that case have the right to a poyolucheniye of the corresponding material security and social services (for example, on payment of sick-lists). Mechanism of such voluntary insurance opredelen Order No. 62.
At the same time it is necessary to note that in practice inogda cases when in defiance of the legislation with certain members of FH employment contracts consist take place and it charges a salary from which insurance fees in the Social Insurance Fund on temporary disability are paid. At a nastuyopleniye of insured events these members of FH have problems with granting a material obespeyocheniye or social services.
In that case, considering the actual payment of strayokhovy contributions, consider possible to include the period of payment of contributions to an insurance experience, and a question otnosiyotelno granting material security and social services to solve after statement on the accounting of such farmer in body of Fund on voluntary nachalax. In the reporting which was represented in Fund, in these cases should be introduced sootvetstvuyuyoshchy amendments.
- Tatyana USTINOVA explained: whether members of FH are subject to obligatory state social insurance on an unemployment case? Whether should charge an economy to (hold) insurance fees for the sums of the income paid within a year to the members?
FH in the order established by the law is registered as the payer of contributions to obshcheobyazatelyyony state social insurance in soyootvetstvuyushchy funds, including in Fonyod’s bodies of obligatory state sotsialyyony insurance of Ukraine on an unemployment case (item 2 of Art. 34 of the Law on FH).
To insurance on a case of unemployment the persons working at conditions of the employment contract or kontrakta (p.1 are subject to Law No. 1533 Art. 4). Members of FH not rabotayut on the terms of the employment contract and consequently, aren’t subject to such type of insurance. By Sootvetyostvenno shouldn’t be charged to (be kept) insurance fees for the sums of the income of members of FH.
At the same time according to h. 1533 members of FH can be insured and pay 4 Art. 6 of the Law No. insurance vznosy in the Social Insurance Fund on an unemployment case on a voluntary basis. In case of payment of contributions they will have the right to material security by this look a strakhovayoniya. For 2008 the size of contributions for this category of payers makes 1,8 % of the taxable income (profit) within the established size of the maximum size (Law No. 2213 Art. 1).
- Natalia ZELENSKAYA answered questions: whether members of FH are subject to obligatory social insurance in the Social Insurance Fund from an occupational accident? Whether should assess an economy insurance contributions for the sums of the income paid within a year to the members?
The persons working at conditions of a labor doyogovor or the contract (Law No. 1105 Art. 8) are subject to obligatory insurance upon accident. Members of FH don’t work at conditions of the employment contract (contract) (Art. 3 of the Law on FH), means, aren’t subject to such strayokhovaniye. According to FH shouldn’t charge to (hold) insurance fees for the sums of the income which it pays to the members.
At the same time members of FH can voluntary zastraxovatsya and pay contributions to the Social Insurance Fund from unfortunate sluchaev on production and occupational illnesses of Ukraine (p.1 to Law No. 1105 Art. 11). For this purpose neobxodimo to sign with Fund the contract on voluntary participation in insurance. The order of the conclusion and a sample of such contract is defined in the Instruction No. 36.
The size of a contribution for voluntary insured fiyozichesky person makes one minimum zarayobotny payment and if this person is a disabled person,-0,5 minimum wages, established at date of payment of an insurance fee, counting on kayolendarny year (Law No. 2272 Art. 6).
Payment by members of FH of voluntary insurance fees gives them the right to medico-social services and payments which are carried out by Fund in a sootyovetstviye from Law No. 1105 Art. 21 at approach of accident or professional a zabolevayoniya. Thus the amount of insurance payment directly depends on the sum of the contributions paid by voluntary zastrakhovanyony person for the corresponding period before insured event.
- Tatyana BOTCHKAREV, whether it is necessary members of FH and the income which the economy pays them, to consider when filling forms of the state statistical supervision No. 1-PV The report on work and No. 3-PV The report on use of working hours?
Indicators of forms No. 1-PV (urgent, monthly) and (urgent, quarter) The report on work and No. 3-PV (urgent, semi-annual) The report on use of working hours pay off according to the Instruction on statistics of number of workers and the Instruction on salary statistics. These Instrukyotsy contain the basic methodological provisions by definition of quantitative indices of hired workers and their salary.
That is state statistical nablyudeniyoy on work hired workers (except subjects of an entrepreneurial activity), consisting in labor relations with the enterprise on the basis of the employment contract, and also the persons working on civil-law contracts are covered.
I will repeat once again. Members of FH according to the current legislation aren’t hired workers of such economy, and their income isn’t a salary. They don’t perform as well work for the economy on the basis of civil-law dogoyovor.
Thus, on members of FH and the sum of their income gosudaryostvenny statistical supervision on work not rasprostranyaetsya. Therefore, their number, doxody which to them are paid by an economy, their expenses of working hours aren’t considered when filling forms No. 1-PV and No. 3-PV. In given forms data on hired workers of FH, and also the persons working on civil-law contracts are reflected only.
So, we will sum up. Insurance fees, including pension, on the income paid to members of FH, are charged only if the last will make the decision on voluntary insurance in the relevant funds.
At the same time the expert of the Pension fund considers that members of FH nevertheless can be issued in an economy according to the employment contract and by it the salary can be charged. In this case pension contributions to a salary should be charged and keep in the general order, as for hired rabotnikov. And if FH – the payer of FSN, pension contributions are charged on a special rate which in 2008 makes 19,92 %. We consider such statement disputable as to make out members of FH according to the employment contract forbids the Law on FH.
At the same time, if members of FH are interested in payment of pension contributions for the accounting of an insurance experience, and the economy besides is the payer of the fixed agricultural tax, registration of members of FH according to the employment contract can be favorable to application of the special (lowered) rate of a contribution. However, we repeat, similar actions don’t correspond to the Law on FH. Such is a position of speyotsialist of PFU and to listen to it or not – to solve to you.
As to other funds irrespective of, the employment contract is issued with members of FH or not, insurance fees from the income of members of FH can be paid only voluntary.
(On Balans-Agro newspaper materials).