GPC agreement with the employee. How does a civil agreement differ from an employment agreement and what are its advantages? What is a civil contract?

The rules for concluding a civil contract are reflected in the Civil Code of the Russian Federation. The person providing short-term, periodic or seasonal work is required to sign a formal agreement with the contractor. The lack of connection with labor legislation is the main difference between the GPC agreement; the pros and cons for the employee are the absence of formalities. The applicant does not need to sign a bypass form, undergo a medical examination, and can immediately begin executing the agreement.

What does registration under a civil contract mean?

Recognition of a civil law contract as an employment contract

This possibility is discussed in Art. 19 Labor Code of the Russian Federation. According to its provisions, the performer must write a statement addressed to the employer. The latter translates the GPC agreement into labor contract by order of the labor inspectorate or challenges it in judicial procedure. At the initiative of the employee, the category of the contract (labor instead of GPC) can be changed only on the basis of a court decision.

According to Art. 11 of the Labor Code of the Russian Federation, labor legislation and other acts containing norms labor law, do not apply to the following persons (unless, in accordance with the procedure established by this Code, they simultaneously act as employers or their representatives):

Military personnel in the performance of military service duties;

Members of boards of directors (supervisory boards) of organizations (except for persons who have entered into an employment contract with this organization);

Persons working on the basis of civil contracts;

Other persons, if established by federal law.

It is important to know, according to Art. 15 of the Labor Code of the Russian Federation, conclusion of civil contracts that actually regulate labor relations between employee and employer is not allowed.

The provisions of the Labor Code of the Russian Federation, including on vacations, compensation for unused vacations, will be applied only if relations arose on the basis of civil legal contract will be recognized in the prescribed manner as labor (until then, the contractor has no right to demand the implementation of guarantees in accordance with the Labor Code of the Russian Federation; he has the right to demand performance from the customer only within the framework of the customer’s obligations in accordance with the Civil Code of the Russian Federation and the terms of the contract). It is possible to recognize a relationship as an employment relationship in the following order - Art. 19.1 Labor Code of the Russian Federation:

“Recognition of relations arising on the basis of a civil contract as labor relations can be carried out:

by a person who uses personal labor and is a customer under the specified agreement, on the basis of a written application from an individual who is the executor under the specified agreement, and (or) an order not appealed to the court in the prescribed manner government inspector labor to eliminate the violation of part two of Article 15 of this Code;

by the court in the event that an individual who is a executor under the specified agreement appealed directly to the court, or based on materials (documents) sent by the state labor inspectorate, other bodies and persons possessing the necessary powers in accordance with federal laws.

In the event of termination of relations related to the use of personal labor and arising on the basis of a civil contract, recognition of these relations as labor relations is carried out by the court. An individual who was a performer under the specified agreement has the right to apply to the court for recognition of these relations as labor relations in the manner and within the time limits provided for the consideration of individual labor disputes.

Insurmountable doubts when the court considers disputes regarding the recognition of relations arising on the basis of a civil law contract as labor relations are interpreted in favor of the existence of labor relations.

If relations related to the use of personal labor arose on the basis of a civil contract, but subsequently, in the manner established by parts one to three of this article, were recognized as labor relations, such labor relations between the employee and the employer are considered to have arisen from the date of actual admission of the individual , who is the executor under the specified agreement, to fulfill the obligations provided for by the specified agreement."

If, according to the contract, the contractor was tasked with deadline prepare documentation, but the customer did not install workplace, labor regulations and other elements mandatory for labor relations, then it will not be possible to recognize the relationship as labor relations.

Hello, my dear readers! A new question for conversation has arisen on its own. Today, companies and entrepreneurs are trying to ease the tax burden that falls on enterprises when paying wages to employees. According to management, such an opportunity is the conclusion of a non-standard labor agreement, and ДГПХ – civil law agreements.

This option does not reduce the costs of the enterprise much, and in addition, it also has some disadvantages. For last year I have handled cases related to employment under GPC several times and have identified for myself both positive and negative characteristics of such a cooperation scheme. Well, I’ll start my story and I hope that it will be useful to many readers.

The first and most important thing that every employee should know is that registration under a GPC agreement is in no way connected with labor relations. More details about what GPC is when applying for a job are spelled out in the Civil Code. We are talking about concluding a standard agreement governed by the specified code.

So that readers can understand what we are talking about, it should be noted that GPC has two subtypes:

• contract agreement;
• service agreements.

In each of these options there are two participants - the customer and the contractor. The first person sets a task for the second, and the second undertakes to solve it within the allotted time. Payment is made by the customer for the completed task or for the services provided.

It is important to clearly understand that a civil agreement is not an employment contract, and what is more important here is the result, but not the process. With some types of work and services, no doubt arises, and the law allows signing a civil act, however, there are positions and work in respect of which only an employment contract can be drawn up.

IN administrative code The fine is clearly indicated: 5-10 thousand rubles for individual entrepreneurs and 50-100 thousand rubles for a company for violating the described rule. On official a fine of 10-20 thousand rubles is also imposed.

Advantages and disadvantages of such a document

The structure of labor legislation is based on the need to protect the interests of workers first and foremost. It is for this reason that any deviation from the current regulations is a direct violation of the interests of hired employees and a benefit for the employer.

If we talk about the pros and cons for the employee, we can note the following points:

In general, we can say that this option is quite convenient for the parties, but it may not be possible in all cases. It is important not to break the law and not to deliberately enter into a GPC in place of a labor contract. You can learn more about this issue from the video:

How to properly draw up a GPC agreement?

When signing a GPC agreement, the contractor will be required to provide documents such as: passport, TIN, SNILS. This information must be recorded in the employee’s details. The company will be required to provide only its registration data, as well as its full name and address. The agreement can be signed for any period of time.

There are no restrictions on the amount or timing of payments, but the following points must be indicated:

• the subject of the agreement is the result of the performer’s work;
• duration of the transaction;
• duties and responsibilities, rights of parties to the agreement;
• conditions under which the provisions of the contract can be revised;
• grounds and reasons for termination of the agreement;
• details of the parties to the agreement.

At the end of the act there must be the signatures of the parties to the transaction, and if a legal entity is involved in the agreement, then the seal of the organization. In other words, a civil agreement is a one-time document that does not have any labor basis. It is important that the deed is correctly drawn up and signed by all participants, otherwise it will be considered illegal and invalid.

Instead of results

Termination of the GPC is possible, but only within the scope of a separate clause of this agreement. Usually, when terminating an agreement, we are talking about compensation for damage caused to one of the parties to the agreement.

Otherwise, it must be emphasized once again that the document has a number of pros and cons that characterize this form legal relations from different sides. It is important to choose the right agreement to enter into, because if labor relations are concealed under the GPC, the employer will certainly be held accountable under the law.

In every organization, situations arise when a special employee is not provided for in the staffing table to perform any work or provide services. As a result, it is necessary to attract outside workers. However, in practice, the head of an organization often has no desire to make such a decision. Firstly, as a result of the introduction of “strangers” into the organization, information leakage is possible and there is a threat of disclosure of trade secrets.

What are the pros and cons for an employee when working under a civil contract?

Secondly, the management of the organization, knowing the abilities of its employees, their qualifications, experience and knowledge, can offer them additional work as one of the components of motivation. Therefore, managers more often enter into civil contracts with full-time employees.

If the manager decides to enter into a civil contract with a third-party organization or individual entrepreneur, the accountant will not have any special problems recognizing such expenses for tax purposes: in paragraphs. 41 clause 1 art. 264 of the Tax Code of the Russian Federation states that other expenses associated with production and (or) sales include expenses under civil contracts (including contract agreements) concluded with an individual entrepreneur who is not on the staff of the organization.

But in the case of concluding a civil contract with a full-time employee, the accountant may have questions. How should a civil contract with a full-time employee of an organization be drawn up correctly? Do I need to make transfers to the Pension Fund? Are payments under such an agreement subject to unified social tax and personal income tax? Can these payments be taken into account when calculating income tax? Let's look at each question separately.

How to correctly draw up a civil contract with staff members

When carrying out tax control activities tax authorities and FSS representatives are very picky about civil contracts and often try to reclassify them as employment contracts. Is this legal?

The legislation of the Russian Federation, along with labor legislation, does not prohibit an employer and an employee from entering into civil legal relations, including in cases where labor relations already exist between these persons.

The general definition of a civil contract is given in Art. 420 Civil Code of the Russian Federation. In accordance with it, a contract is understood as an agreement between two or more persons to establish, change or terminate civil rights and obligations. The agreement is concluded on a voluntary basis, its terms are determined at the discretion of the parties, except in cases where the corresponding condition is prescribed by law or other legal acts(Article 422 of the Civil Code of the Russian Federation). Payment under the contract is also established by agreement of the parties.

Civil contracts are quite diverse and are used in almost all areas of life. Each of the agreements has its own characteristics, and therefore many of them are devoted to separate chapters in the Civil Code of the Russian Federation. So, for example, a contract is discussed in Chapter. 37, paid provision services - in chap. 39, transportation - in ch. 40, instructions - in ch. 49, commissions - in Ch. 51, etc. Despite the variety of forms, they all have a number of common features that distinguish them from employment contracts.

According to Art. 56 of the Labor Code of the Russian Federation, an employment contract is an agreement between an employer and an employee, according to which the employer undertakes to provide the employee with work for a specified labor function, to provide working conditions provided for by the Labor Code of the Russian Federation, laws and other regulatory legal acts, collective agreement, agreements, local regulations, containing labor law norms, pay the employee wages in a timely manner and in full; in turn, the employee undertakes to fulfill the labor function defined by this agreement and to comply with the internal labor regulations in force in the organization.

Differences between a civil contract and an employment contract

So, in order to ensure that tax authorities and Social Insurance Fund employees do not re-qualify a civil contract concluded with a full-time employee of an organization as a labor contract, the following conditions must be ensured:

• an employee on the staff of an organization must perform duties under a civil contract during non-working hours;
• such an agreement should not imply the performance of work (provision of services) that is performed within the framework of the employment contract;
• the contract specifies a specific individual task;
• the final result of the work performed or service provided is paid for;
• the fact of work performed (service provided) is confirmed by the acceptance certificate.

Contributions to the Social Insurance Fund under civil contracts concluded with full-time employees

According to paragraph 1 of Art. 5 Federal Law dated July 24, 1998 N 125-FZ "On compulsory social insurance against accidents at work and occupational diseases"individuals performing work on the basis of a civil contract are subject to compulsory social insurance against industrial accidents and occupational diseases, if, in accordance with the specified contract, the insured is obliged to pay the insurer insurance premiums.

This means that if the agreement does not contain a clause that provides for the transfer of such contributions, then they should not be paid.

Tax base for profit

Is it possible to take into account the costs of paying amounts under civil contracts concluded with full-time employees of an organization when calculating income tax?

For the purposes of ch. 25 “Organizational Income Tax” of the Tax Code of the Russian Federation, a taxpayer-organization reduces the amount of income received by the amount of expenses incurred, with the exception of expenses specified in Art. 270 Tax Code of the Russian Federation.

The position of the Ministry of Finance on this issue is ambiguous. Previously, financiers said that payments to full-time employees for performing work or providing services under civil contracts are not recognized as expenses when calculating income tax. This position is based on paragraphs. 41 clause 1 art. 264 of the Tax Code of the Russian Federation, which states that other expenses associated with production and (or) sales include expenses under civil contracts (including contract agreements) concluded with individual entrepreneurs who are not on the staff of the organization. This provision does not allow expenses under civil contracts concluded with employees of the organization to be included among other expenses related to production and sales. Such expenses are not named in the list contained in Art. 255 Tax Code of the Russian Federation.

Thus, a taxpayer organization does not have the right to include expenses that reduce income received when determining tax base for income tax, costs under civil contracts concluded with full-time employees. This position can be seen in Letters of the Ministry of Finance of Russia dated 04/22/2004 N 04-02-05/1/29, dated 05/06/2005 N 03-03-01-04/1/234, dated 11/28/2005 N 03-05-02- 04/205, 04/24/2006 N 03-03-04/1/382.

Since 2007, the Ministry of Finance has explained in its letters that payments under civil contracts to employees on the staff of an organization can be taken into account when determining the tax base for income tax as part of other expenses associated with production and sales, on the basis Art. 264 Tax Code of the Russian Federation. This article contains 49 points, and this list is not closed: paragraphs. 49 clause 1 art. 264 contains the concept of “other expenses”, which allows them to be taken into account for profit tax purposes, subject to compliance with the criteria given in Art. 252 of the Tax Code of the Russian Federation (expenses are recognized as justified and documented expenses incurred (incurred) by the taxpayer, provided that they were incurred to carry out activities aimed at generating profit). This position of the regulatory authorities is reflected in Letters of the Ministry of Finance of Russia dated January 19, 2007 N 03-04-06-02/3, dated January 29, 2007 N 03-03-06/4/7, dated March 29, 2007 N 03-04-06- 02/46, dated 08/22/2007 N 03-03-06/4/115, dated 03/27/2008 N 03-03-06/3/7, Federal Tax Service of Russia dated 10/20/2006 N 02-1-08/222@.

In 2008, the FAS PO Resolution of March 18, 2008 N A55-11216/07 appeared - remarkable judgment on the issue under consideration in favor of the taxpayer. The court indicated: Art. 421 of the Civil Code of the Russian Federation establishes the freedom to conclude an agreement for citizens and legal entities for the provision of services for a fee. At the same time, relations arising from a civil contract for the provision of services for a fee are regulated by civil law; the organization’s expenses for paying for services provided by a full-time employee under the specified agreement (subject to the requirements for expenses of Article 252 of the Tax Code of the Russian Federation) can be taken into account as part of other expenses (clause 49, clause 1, article 264 of the Tax Code of the Russian Federation).

Thus, if these payments are economically justified, documented and made for profit, then they can be recognized as expenses. Basis - Art. 421 of the Civil Code of the Russian Federation, which states that there is freedom to conclude an agreement for citizens and legal entities for the provision of services for a fee. The contractor undertakes, on the instructions of the customer, to provide services (perform work), and the customer undertakes to pay for these services. Since relations arising from a civil contract are regulated by civil law, the organization’s expenses for paying for services provided by a full-time employee under the specified agreement (subject to the requirements for expenses of Art.

252 of the Tax Code of the Russian Federation), can be taken into account as part of other expenses (clause 49, clause 1, article 264 of the Tax Code of the Russian Federation).

As can be seen from the above, the position of the Ministry of Finance and the tax department on the issue of taking into account, when calculating income tax, expenses for the payment of amounts under civil contracts concluded with full-time employees, is ambiguous. We can conclude that the organization, when attributing these expenses to reducing the tax base for income tax and further defending its position, must take into account the following:

• features of a civil law contract;
• expenses under these agreements must be economically justified, documented and carried out by the taxpayer to carry out activities aimed at generating profit.

Contributions to the Pension Fund and UST taxation

Based on paragraph 1 of Art. 236 of the Tax Code of the Russian Federation, the object of UST taxation for taxpayers making payments in favor of individuals is recognized as payments and other remunerations accrued by the taxpayer under employment and civil law contracts, the subject of which is the performance of work (provision of services) and copyright agreements, with the exception of remunerations paid individual entrepreneurs.

According to paragraph 3 of Art. 236 of the Tax Code of the Russian Federation specified in paragraph 1 of Art. 236 of the Tax Code of the Russian Federation, payments and remuneration are not recognized as an object of taxation if taxpayers do not classify these payments as expenses that reduce the tax base for income tax in the current tax period.

Thus, if these payments are classified as expenses that reduce the tax base for income tax on the basis of paragraphs. 49 clause 1 art. 264 of the Tax Code of the Russian Federation, then the Unified Tax must be accrued and paid in the generally established manner, but taking into account clause 3 of Art. 238 of the Tax Code of the Russian Federation, that is, without charging tax to the Social Insurance Fund.

Contributions to the Pension Fund from payments under civil contracts concluded with full-time employees of the enterprise must be accrued and transferred on the basis of clause 2 of Art. 10 of the Federal Law of December 15, 2001 N 167-FZ "On compulsory pension insurance in Russian Federation". This Law states that the basis for calculating insurance premiums is the object of taxation and the tax base for the unified social tax established by Chapter 24 of the Tax Code of the Russian Federation.

Personal income tax

In paragraph 1 of Art. 226 of the Tax Code of the Russian Federation states that if a taxpayer, when interacting with Russian organizations, receives income, then the organizations are obliged to calculate, withhold from the taxpayer and pay the amount of tax calculated in accordance with Art. 224 Tax Code of the Russian Federation. Any organization on the basis of this article is a tax agent.

According to paragraphs. 6 clause 1 art. 208 of the Tax Code of the Russian Federation, payments under civil contracts are subject to personal income tax.

Thus, when concluding a civil contract with full-time employees, the organization is responsible for the calculation and payment of personal income tax. The tax is withheld and transferred to the budget by the organization (tax agent) upon actual payment of income to the taxpayer (clause 4 of Article 226 of the Tax Code of the Russian Federation). The tax rate for residents of the Russian Federation is 13%, and for non-residents - 30%. In addition, no later than April 1 of the year following the reporting year, a certificate of income in form 2-NDFL is provided to the tax office.

Compensation payments under civil contracts

When performing work (providing services) under a civil law contract, an employee of an organization may have additional expenses, such as travel and accommodation in another city, the purchase of any materials, etc. This is where questions arise. How to compensate for these costs? Are these compensations subject to unified social tax and personal income tax? Can they be classified as expenses that reduce the tax base for income tax?

Costs incurred by an employee when performing work (providing services) under civil contracts can be compensated on the basis of Art. Art. 709 and 783 of the Civil Code of the Russian Federation. In order to take these compensations into account when determining the tax base for income tax, it is necessary to discuss in the contract the conditions under which they are paid (for example, the presence of appropriate supporting evidence). primary documents). Then the organization will be able to include these compensations in expenses when calculating income tax.

Until a certain time, it was not entirely clear whether these compensations were subject to unified social tax, since there were disagreements between financiers and tax department employees.

The financiers, in their Letter dated May 25, 2004 N 04-04-04/58, explained that compensation for expenses associated with the implementation of civil contracts and the actual work performed on them are not included in the taxable base under the Unified Social Tax on the basis of Art. 238 Tax Code of the Russian Federation. The same opinion is expressed in Letters of the Ministry of Finance of Russia dated December 13, 2007 N 03-04-06-02/219, dated July 14, 2006 N 03-05-02-04/189, Federal Tax Service for Moscow dated July 31, 2007 N 21- 11/072704@.

Another position is as follows: according to the Federal Tax Service, compensation payments are additional remuneration to an individual for certain work or services performed by him under civil contracts, therefore they should be subject to UST in the general manner (Letter of the Federal Tax Service of Russia dated 04/13/2005 N GV-6-05/294@). A similar approach can be seen in Letters of the Ministry of Finance of Russia dated October 12, 2004 N 03-05-02-04/32, dated October 29, 2004 N 03-05-02-04/39.

In this difficult situation, the court comes to the aid of the taxpayer. Thus, in the Resolution of the Supreme Arbitration Court of the Russian Federation dated August 18, 2005 N 1443/05, it is determined that, since these compensations do not relate to the payments listed in Art. 236 of the Tax Code of the Russian Federation, that is, they are not remuneration for the performance of work (provision of services), they will not be subject to UST taxation, regardless of their inclusion in expenses when taxing profits. And the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 14, 2006 N 106 states: compensation of costs to persons performing work (providing services) for an organization for a fee is aimed at repaying expenses incurred by the contractor in the interests of the customer of the work (services), therefore, cannot be considered as payment for these works (services), and therefore is not subject to UST taxation.

The amount of compensation under this agreement is also not subject to personal income tax - it is withheld only from the taxpayer’s income, as expressly stated in Art. 209 of the Tax Code of the Russian Federation. In the case of a civil contract, such income is remuneration. And the amount of compensation paid, as stated above, does not apply to remuneration. Therefore, the organization is not obliged to pay personal income tax on it. The same opinion was expressed by the judges in the Resolutions of the FAS SZO dated 03/06/2007 N A56-10568/2005, FAS UO dated 03/21/2007 N F09-11047/06-S3: compensation for expenses of performers provided for in civil contracts is not included in the remuneration under the contract and not subject to personal income tax.

Summarizing all that has been said, I would like to note: be careful when drawing up civil contracts with your employees, take into account all the nuances so that regulatory authorities cannot reclassify such contracts as employment contracts. Clearly distinguish between the concepts of “remuneration” and “compensation”, as this is directly related to taxation.

E.A. Soboleva

Journal expert

"Payment:

accounting

and taxation"

News / What contract to work under?

In accordance with the legislation of the Russian Federation, an organization has the right to determine under what contract to hire a person: under an employment contract or a civil law contract. Today we will try to answer frequently asked questions on this topic.

What is a contract?

Civil contract is defined by the Civil Code of the Russian Federation as an agreement by virtue of which one party (contractor) undertakes to perform certain work on the instructions of the other party (customer) and deliver its result to the customer, and the customer undertakes to accept the result of the work and pay for it (Article 702 of the Civil Code of the Russian Federation).

Under civil contracts, payment is made for the final result of work performed or services provided; the fact of completion of work (rendering of services) is confirmed by an acceptance certificate.

If an employee, under a contract, incurs expenses related to the performance of work, the organization is obliged to reimburse them to the employee; the procedure for paying such expenses and the corresponding amount of remuneration are established in the contract.

An organization has the right to conclude a civil contract both with an employee of the organization and with a person who is not in an employment relationship with the organization.

If an organization has entered into a civil contract with an employee who is on the staff of this organization, then the employee must perform the list of work under the concluded contract during non-working hours; otherwise, this work is considered part-time work.

Civil contracts with third parties are concluded, first of all, due to the lack of necessary specialists in the organization or when the employer wants to relieve himself of some of his responsibilities.

The civil law agreement provides for the following clauses:

• start and end dates of work,
• procedure for payment for work;
• list of works (services) that the employee must perform (provide);
• procedure for delivery and acceptance of work;
• requirements for the quality of work;
• liability of the parties for violation of the terms of the contract.

What are the features of a civil law contract?

Under a civil contract, the employee himself organizes the process of his work. No responsibility for absenteeism, tardiness, etc. there can't even be any talk.

Under civil law contracts, one party (the contractor) performs certain types works or services, regardless of qualifications or specialty, as well as position, for the other party.

Those working under civil contracts independently determine the methods and methods of fulfilling the order. For them, the final result of the work is important - fulfillment of the terms of the contract in proper quality and on time.

Civil legal relations are not subject to the Labor Code of the Russian Federation, thereby not burdening the employer with a number of responsibilities:

• provide work or pay for downtime;
• provide paid leave after six months or pay compensation upon dismissal;
• pay sick leave;
• pay wages on time;
• terminate the contract only on the grounds provided for Labor Code;
• from the reward you do not have to pay insurance premiums for compulsory insurance from industrial accidents and occupational diseases (unless the obligation to accrue them is expressly stipulated by the terms of the contract);
• For these remunerations it is not necessary to accrue UST in the part that is paid to the Federal Social Insurance Fund of Russia.

For payments under a civil contract, insurance contributions to the Social Insurance Fund are charged only if the contract itself provides for this. Consequently, if you write this clause into the contract, then payment of sick leave becomes possible. As a result, the insurance length of the “contract” employee will increase.

The situation is similar with the payment of benefits in the event of an injury at work for a person working under a civil contract. Individuals performing work on the basis of a civil contract are subject to compulsory social insurance from NS and PZ, if, in accordance with the specified agreement, the policyholder is obliged to pay insurance premiums to the insurer (clause 1 of Art.

We conclude a civil contract with the organization’s staff members

If the contract does not stipulate that the organization pays insurance premiums to the Federal Social Insurance Fund of Russia for insurance against industrial accidents, the employee performing the work is not subject to this species compulsory social insurance. That is, the organization will not be able to pay him temporary disability benefits in the event of an industrial injury at the expense of contributions to compulsory insurance against industrial accidents.

However, the victim has the right to payment of benefits in connection with work injury, even if the civil contract does not provide for the employer’s obligation to pay insurance premiums for compulsory social insurance against accidents and occupational diseases. But it won't be state benefit for temporary disability, and compensation to the insured person for lost earnings in terms of wages under a civil contract.

A similar situation occurs with remuneration; under civil contracts, payment is made exclusively for results. Consequently, it is no longer necessary to pay wages every month, and the amount of payment is indicated in the contract and is mandatory in addition to the minimum wage or living wage not attached.

What are the consequences of concluding work contracts instead of an employment contract?

Firstly, an individual loses the right to receive temporary disability benefits, compensation for unused vacation and additional payment for working overtime, as well as receive free special clothing from the organization (customer), special shoes, other means personal protection, therapeutic and preventive nutrition. At the same time, the contractor can purchase personal protective equipment and medical and preventive food at his own expense, providing for expenses and losses in the estimate for the work. The contractor (employee) is also not entitled to leave, since labor legislation does not apply to “contract” workers (Article 11 of the Labor Code of the Russian Federation);

Secondly, the state receives fewer contributions to the Social Insurance Fund and spends less on temporary disability benefits;

Thirdly, the employer has the opportunity to overcome restrictions in the use of overtime work, established by Art. 99 of the Labor Code of the Russian Federation (no more than 4 hours within 2 days and no more than 120 hours per year), it also saves cash due to non-payment of compensation for unused vacation and others.

Fourthly, for the contractor (employee), the conclusion of a work contract means interrupted work experience, and especially the insurance period, which is taken into account when calculating sick leave.

In comparison, it turns out that a civil contract is much more profitable for the employer. However, sometimes tax inspectors see signs of fraud behind such contracts, because payments to contractors are not subject to the UST (Unified Social Tax) in the part payable to the Social Insurance Fund.

But at the same time, the employer who chose workers to register civil contract, there is a danger in the form of recognition of the contract concluded with the employee not as a civil one, but as an employment one.

How to prove that a civil contract is still an employment contract?

Re-qualify the contract concluded with an individual in labor is possible only through the court.

The court can do this as required labor inspection, and at the “will” of the employee himself. If the court finds that the employee has not entered into a civil contract, but an employment contract, the employer will have to issue a work record book and provide all the benefits under the Labor Code of the Russian Federation. This includes paying the employee all unpaid amounts - vacation pay, sick leave, and travel allowances.

First, let’s look at what conditions are essential when concluding an employment contract:

• assigning a position, specialty, profession to an employee, indicating qualifications, in accordance with the organization’s staffing table, and assigning a specific job function to him;
• payment for the labor process (and not its final result as when concluding a contract) in accordance with tariff rates, official salaries of the employee, taking into account additional payments, allowances, incentive payments, compensation and benefits;
• the employer's obligation to provide working conditions for the employee;
• provide the employee with the types and conditions of social insurance;
• compliance by the employee with internal labor regulations, etc.

Consequently, if at least one of these conditions is present in a work contract, it is no longer a civil law contract, but an employment contract. At the same time, the amount of work that an employee is required to perform under a “contract” agreement must have reasonable limits. And the subject of the contract must very clearly comply with the requirements for such contracts. For example, it is doubtful to enter into a contract with a janitor, driver, accountant, etc., if they work full time. After all, this already “pulls” on a regular employment contract.

Detailed advice can be obtained from the department of labor relations, labor protection and interaction with employers of the State Public Institution KK "Employment Center of the City of Anapa", according to address g-k Anapa, st. Kalinina, 12A, office. 10, tel. 4-01-31.

Head of the Department of Labor Relations, Labor Safety and Interaction with Employers of the State Public Institution KK "Employment Center of the City of Anapa" E.V. Grigorenko

In what cases can a civil contract be concluded?

with employees is to perform one-time work (for example, office renovation) and is regulated by civil law. They cannot be used to register full-time employees who will perform a certain labor function (Article 11 of the Labor Code of the Russian Federation).

GPC agreement

Most often concluded work contract(contracts) and provision of services.

If the court finds that a civil contract actually regulates labor relations, the contract will be recognized as an employment contract (Article 11 of the Labor Code of the Russian Federation).

Recognition of an employment contract means that the company will have to formalize the hiring of an employee, accrue and pay him a salary for the entire duration of the contract. And also provide other benefits provided for by the Labor Code of the Russian Federation - vacations, sick pay, etc. (clause 8 of the resolution of the Plenum Supreme Court RF dated March 17, 2004 No. 2).

Is it possible to send an employee with whom a civil contract has been concluded on a business trip?

No, only an employee with whom an employment contract has been concluded can be sent on a business trip (Article 166 of the Labor Code of the Russian Federation). In a civil contract, you can provide that the citizen’s expenses will be compensated for him in connection with the performance of obligations under the contract, and allocate funds for such a trip. But this will not be considered a business trip.

Is it necessary to issue an order for employment under a contract?

Concluding civil contract, there is no need to issue a hiring order, make entries in the employee’s work book, maintain time sheet. Labor legislation does not apply to persons working under a civil contract (Article 11 of the Labor Code of the Russian Federation).

Differences between a civil law contract and an employment contract

How to draw up a civil contract correctly

When determining the content of the contract, be guided by Chapters 37 and 39 of the Civil Code of the Russian Federation. Do not include labor law terms in the contract text. Instead of the words “employer” and “employee”, use the words “customer” and “performer” or “contractor”. The phrase "salary" should be replaced with the concept "remuneration." Do not use the terms “working time”, “rest time”, “lot leave”, etc., which are used by fixed-term employment contract. IN civil contract do not include a condition on obedience to internal labor regulations, because only employees hired under employment contracts are required to observe labor discipline. Cm. labor agreement

An employment contract to perform a specific job

An employment agreement with an individual to perform work for a certain period. As a rule, it is concluded with a temporary worker, an individual, to perform certain tasks.

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EMPLOYMENT CONTRACT

for the duration of a specific job

Civil contract with a full-time employee

in a person acting on the basis, hereinafter referred to as “ Society", on the one hand, and gr. , passport: series, No., issued, residing at: , hereinafter referred to as “ Worker", on the other hand, hereinafter referred to as the "Parties", have entered into this agreement, hereinafter " Agreement”, about the following:

1. The employee is accepted for temporary work in the Company as a...
2. Wages The employee's salary is rubles per month.
3. During the period of work in the Company, the employee reports directly.
4. This employment contract is concluded for the duration of the work. The work must be completed no later than. Upon expiration of the specified period, this agreement is terminated, except for the cases specified in paragraphs. 8 and 9 of the agreement.
5. The employee is required to start working in 2018.
6. The employee is required to perform the following job duties as specified in the job description.
7. Place of work of the Employee: .
8. After completing the work specified in clause 4 of the contract, this employment contract may be extended by agreement of the parties, or a new employment contract may be concluded between them for temporary or permanent work.
9. The employment contract is extended for indefinite period and The employee acquires the status of a permanent employee if the employment relationship actually continues and neither party has demanded its termination in the following cases:
10. if upon expiration of the contract the work specified in clause 4 is not completed;
11. if, after completing the work specified in clause 4 of the contract, the Employee continues to perform work in this specialty and qualification.
12. Work in the Company is the main place of work of the Employee.
13. The work schedule, rights and obligations of the parties, grounds for termination of the employment contract and other conditions are determined in the Personnel Regulations, approved by the head of the Company.
14. Additional terms and conditions under this agreement: .
15. The terms of this employment contract are confidential and are not subject to disclosure.
16. The terms of this employment contract are legally binding on the parties. All changes and additions to this employment contract are formalized by a bilateral written agreement.
17. In all other respects that are not provided for in this agreement, the parties are guided by current legislation.
18. The parties are guided by the internal regulations of the Company (Personnel Regulations, internal labor regulations, etc.) only if the Employee familiarizes himself with them against signature.
19. Disputes between the parties arising during the execution of an employment contract are considered in the manner prescribed by current legislation.
20. The Agreement is drawn up in 2 copies having equal legal force, one of which is kept by the Company and the other by the Employee.

LEGAL ADDRESSES AND DETAILS OF THE PARTIES

Society Legal address: Postal address: Taxpayer Identification Number: KPP: Bank: Account/account: Correspondent/account: BIC:

Worker Registration: Postal address: Passport series: Number: Issued by: By: Telephone:

SIGNATURES OF THE PARTIES

Society _________________

Worker _________________

GPC agreement - what is it?

In my practice, I often have to deal with labor disputes, and from time to time disputes arise among them related to the application of a civil law contract in the relationship of citizens among themselves or with organizations. In this article, I will tell you about what a GPC agreement (agreement, contract) is, where it can be applied and when you should not agree to substitute this document for labor relations. At the bottom of the page is a sample of the 2018 GPC agreement.

The GPC agreement has long been a common practice and is often used to formalize the relationship between the customer and the contractor when performing short-term work in the interests of the customer and for the amount of money specified by him. Such a contract has nothing to do with labor legislation and is fully regulated by civil law, or to be more precise - Civil Code RF.

Such a GPC agreement always contains the following mandatory elements:

• Personal data (details) of the parties.
• Description of the nature of the subject of the agreement.
• Short deadline for completing the task.
• The price for the service and the procedure for paying it to the contractor.
• Responsibility of both parties.

What are the advantages of a GPC agreement in 2018

Registration under a civil law agreement is beneficial, first of all, for the customer. Cause? Everything is very simple - the hired person does not need to be registered according to the Labor Code of the Russian Federation; pay social contributions from it, which in our country are very disproportionate; no need to give social guarantees; and most importantly, you can stop contact with the performer at any time, without even explaining the reason for such an action.

In addition, the customer can specify in this document many strict requirements for the quality, timing and volume of services, if deviated from which the contractor will not have the right to claim a monetary reward.

But it is beneficial for the contractor to enter into a GPC agreement for purely secondary reasons. For example, the desire to work remotely and earn money on the Internet (freelancer activities); or the absence of vacancies similar to the proposed cooperation in the official labor market. Also, often the reason for choosing an activity under an agreement for citizens is a significant difference in the amount of remuneration. It happens that an employer is ready to pay 2-3 times more to an employee who agrees to work not officially, but on the basis of a civil law agreement.

What are the disadvantages of the agreement?

I think that citizens are well aware, even without the advice of lawyers, that if they enter into a relationship with a customer of any services and are not officially employed with a guarantee of a long and stable relationship, they will not have to hope for long-term cooperation. You should also always understand that when cooperating under a civil agreement, you will not have a fixed salary, vacation, dismissal benefits, length of service or pension contributions.

In addition to the above inconveniences, you must also take into account the fact that if the customer does not like your result, or he simply pretends that it does not suit him, you can practically forget about the reward. Yes, of course, you can try to prove the fact that certain work was performed on the defendant’s instructions within the framework of the agreement reached, but this is not always easy to do. We'll talk about this below.
In addition, if the customer himself suddenly has financial problems: the money runs out, the organization goes bankrupt, it will be even more difficult to get anything from such a counterparty, or rather, almost impossible.

But, despite such difficulties, GPC contracts are still used by citizens, including due to the fact that sometimes for making money in certain areas of commercial activity there are no alternatives to such contracts, or official relations are less interesting financially.

Popular civil contracts

Let's see when citizens agree to a relationship using sample civil contracts to draw up:

• Contracting, including the construction of private houses and apartment renovation, design.
• Activities on the Internet (freelancers): creating and promoting websites, writing texts, and numerous other tasks on the Internet.
• The work of journalists on the Internet and print media.
• One-time transportation of goods and people.

How to protect your rights if a civil contract has been concluded

First of all, having decided to agree to perform services under a GPC agreement, you should carefully consider the text of the document and study the finished sample. It is necessary to understand that this will be the only document that, in the event of a conflict with an opponent, will help you defend your rights and get your earned money. Yes, these are far from protected labor relations, but civil relations are also subject to legal protection.

For this reason, when concluding a civil contract in 2018, pay attention to ensuring that the contract template contains mandatory conditions, such as:

1. Details of the parties.
2. Detailed description of the scope of services.
3. Accurate indication of deadlines.
4. Cost and payment procedure.
5. Penalties for failure to comply with the terms of the contract, including late payment.
6. Signatures of the parties.

So, we signed a contract, completed the work, but the “employer” refused to pay us for it. What to do in such a situation? First, we send a claim to him, demanding payment and threatening the court and the prosecutor's office. We mention the prosecutor's office in the complaint, hinting that the customer used you by replacing the employment relationship with you with civil law, and, consequently, his corresponding punishment and financial sanctions.

If there was no proper response to your claim and you still haven’t seen the money you earned, on your own or with the help of a lawyer, contact civil court with a statement of claim for the recovery of the amount of money due. At the same time, unfortunately, unlike violations of labor standards, for violating the terms of payment of a civil contract when going to court, you will need to pay a state fee, which is calculated from the price of the claims.

In court, we prove the fact of concluding an agreement on certain conditions (we provide the court with our copy of the GPC agreement) and confirm in all possible ways evidence of the timely completion of the full scope of services.

If the customer uses the practice of concluding a civil law agreement as a way to escape formalized relations and uses your work systematically on an ongoing basis, you have the opportunity to reclassify in court civil law relations as regulated by the Civil Code of the Russian Federation and demand from the defendant-employer all outstanding payments due , including social, as well as to compensate for moral damage caused by the illegal behavior of the employer and require an entry in the work book. In case of filing such statement of claim, you do not need to pay a state fee for going to court.

Sample GPC agreement 2018

Look at a standard sample of a civil law contract, which can be universally used for any type of work: contracting, provision of services, etc. The sample agreement optimizes the rights and obligations of both parties to the legal relationship. Print, fill out and sign this sample in two copies: for the contractor and the customer.

How to prove that labor relations are hidden by civil ones?

In order to convince the court of the existence of a permanent employment relationship between you and the defendant, your interaction with the “actual employer” must contain, for example, one of the following conditions:

• The presence in this document of a mention of position, specialty, profession, rank, etc.
• An indication of the performance of a certain systematic function over a long period of time.
• Mention of the need to comply with internal regulations, working hours, and working hours.
• Calculation of remuneration in relation not to the result of work, but to the time of performance of labor functions (hours, days, months).

Civil contract with a freelancer

If in court the plaintiff manages to prove that his relationship was not civil law, but labor, the period of work of such a plaintiff with the defendant is calculated from the moment he contacts the customer-defendant and begins activities on his instructions. Hence, the defendant has an obligation to pay the employee for this entire long period of time vacation pay, compensation for work on weekends and holidays and for overtime work.
In addition to property liability to the plaintiff-employee, the employer receives additional financial losses as a violator of the Labor Code of the Russian Federation:

• Fine for administrative offense in connection with violation of the law in the amount of 50,000 rubles.
• Reimbursement to the state for unpaid contributions under the UST and insurance contributions to the Social Insurance Fund with additional payment of fines and penalties for the violation.

It is precisely because of the possibility of the above-mentioned undesirable financial consequences for the customer of work and services who has drawn up the GPC agreement, in the event of violations on his part in payment for the work performed by the contractor, it makes sense to first pre-trial procedure a claim to invite the negligent customer to pay the money due and hint about what awaits him in court if he refuses to voluntarily fulfill his obligations. Often a warning about increasing financial losses if the customer continues the dispute has a sobering effect on him.

Lawyer Gennady Efremov

The procedure for formalizing the relationship: An employment contract is drawn up, an employment order is drawn up, and a T2 personal card is drawn up. A contract/service agreement is drawn up.

Civil contract with an employee: pros, cons, pitfalls

2. Making an entry in the work book. Entered. Not included. 3. Parties to the contract Employer and employee. Contractor/performer, customer. 4. Possibility of performing work by third parties The employee performs the work personally. The contractor has the opportunity to transfer part of the work to a third party with the consent of the contractor/customer. 5. Subject of the contract The labor process, the performance of a certain labor function, that is, work in a certain position, in accordance with the staffing schedule. Performing actions, performing work/providing services (individually - a specific task - assignment, order) in proper quality and within the time period agreed upon by the parties. 6.

Differences between an employment contract and a civil law contract

The main point to pay attention to is the nature of the work ahead: this is an activity aimed at a specific business transaction with a predictable result (for example, holding a tender) and a certain deadline, or it is a process of performing work that is valuable in itself.

Employment and civil law contracts - differences

Any links to staffing table, tariff and qualification characteristics of the work for a specific profession and specialty of the employee may be the basis for recognizing such an employment contract. A civil contract, unlike an employment contract, cannot provide for a person’s obligations to obey the Labor Regulations or any other local regulations of the organization: orders, instructions of the head of the organization. Read about the maximum period for which a GPA can be concluded in our material.
A civil contract, unlike an employment contract, cannot provide for the payment of remuneration for the performer’s work itself. Only a certain result is paid. The organization may not pay for the work of the performer, which did not lead to the achievement of the result established by the civil contract for the performance of work or provision of services.

The difference between a work contract and a service contract, an employment contract and a civil contract

Pros and cons of a civil contract Civil contracts are becoming increasingly popular. And there are reasons for this. For the employer, the GPA is characterized by the following advantages:

• The employee has obligations. He must complete the work efficiently and on time.
• There is no need to set up a workplace, provide a social package, or make contributions to health and social insurance.
• Tax benefits.

  
  In particular, there is no need to pay unified social tax.

• The employer does not pay for the work process, but exclusively for the result.

However, GPA is not without its drawbacks:

• It is impossible to control the work of an employee.
• It is difficult to hold an employee accountable for violating the routine.

GPA does not imply great responsibility on the part of the employer, but it also lacks tools for control over employees.

The difference between employment and civil law contracts

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Civil contract

Attention

Result of work A specific result is not considered as the purpose of the employment contract and does not entail its termination in connection with the achievement of this result. The specific result is the goal of a civil contract. Carrying out actions on the instructions of the contractor/customer is only a way to achieve the goal - the result.

Payment procedure The employer pays the employee wages based on the official salary, depending on the remuneration system in force in the organization. Salaries are paid at least every half month. The contractor/customer undertakes to pay for the work performed/services provided within the time frame and in the manner specified in the contract.

8. Terms of payment Wages are paid to the employee regardless of the result of work. Payment is made upon completion of the work/services and the drawing up of the report.

The difference between an employment contract and a civil law contract

In relation to such employees (performers under the GPA), the employer does not bear labor safety risks, does not pay for downtime, and is not obliged to provide materials and raw materials. There is also no need to keep military records, make an entry in the work book or carry out other personnel records. For the employee (performer), the advantage will be the ability to enter into an unlimited number of similar contracts at the same time, there is no need to comply with LNA and obey the employer’s internal labor regulations, there is no need for a 2-week notice of termination of the relationship, liability under the Civil Code of the Russian Federation, equal partnerships with the employer.

What are the differences between a civil law contract and an employment contract?

Responsibility for violation of this norm, defined in Articles 15 and 19.1 of the Labor Code of the Russian Federation, is the re-qualification of the contract into an employment contract, recognition of the parties as actually an employee and an employer. In addition, it is possible to impose a fine under Part 4 of Article 5.27 of the Administrative Code, which provides for a fine for a single violation from 50,000 to 100,000 rubles per legal entity for each fact of such misconduct. If 5 such agreements are found, the fine may be increased proportionally.
Advantages of the GPA for the employer (customer) and the employee (performer) For the employer (customer), the main advantage when concluding a GPA is saving money on social benefits ( sick leave, vacation, etc.), payment for the final result of work based on the certificate of completion of work.

Differences between an employment contract and a civil contract

The limits of an employee's financial liability are limited by labor legislation. The performer may be held financially liable. In case of damage, the performer is obliged to compensate for the damage caused in full.

Vacation The employee is guaranteed annual paid vacation. For some categories of employees, additional paid vacations are also provided. At the same time, during the vacation, the employee retains his place of work. Working women are also granted maternity leave, as well as parental leave until the child reaches the age of three years.

The contractor can rest at any time, but only if this does not affect the completion of the work/provision of the service on time and of the established quality. The performer's vacation is at his own expense, since the customer's responsibilities do not include the provision and payment of vacation pay.
The operating mode is determined independently according to the PVTR Features of the work performed specific task, project, with the possibility of evaluation based on the result according to job responsibilities, labor function Documents for conclusion passport, SNILS passport, work book, SNILS, military ID, certificate (for certain positions), diploma (for certain positions) Personal data is not transferred to 3rd parties, processed to a limited extent can be transferred to 3rd parties m persons are processed to the extent permitted by the employee. Labor protection is not fully regulated, according to the law Prerequisites determined by the Civil Code of the Russian Federation determined by the Labor Code of the Russian Federation Replacement of an employment contract with a civil law one Replacement of an employment contract with a civil law one is not allowed in cases where there are labor relations.

Not only young specialists are interested in getting a job. Any entrepreneur needs a highly qualified employee. Don’t forget: before you sign the contract that is concluded between you and the future employee, you need to understand the intricacies of the Labor and Civil Code system.

What is a civil contract?

In a broad sense, the term “civil relations” refers to mutually beneficial cooperation between the customer and the contractor. A written document confirming this is usually a contract () or paid services (), concluded by the company either with an individual or with an individual entrepreneur (). The primary difference between a civil law contract (CLA) and an employment contract is that the first does not fall under the competence of the second:

1. The importance of an employee’s professionalism is determined not by his qualifications, but by the level of fulfillment of assigned tasks.
2. Payment for labor is made only for the final result and is a form of remuneration, the amount of which is agreed upon by both parties.
3. The contractor retains the right to independently choose the methodology for performing the work; he even has the opportunity to involve third parties, unless this is prohibited by the contract.
4. Execution of technical specifications ( terms of reference) is always documented.
5. The contractor is not a full-time employee, so he is not obliged to comply with the company’s internal regulations.

Registration of an employee under a civil contract is a violation of the law and faces fines from 50,000 to 200,000 rubles (). Why is it still more profitable for you, as an employer, to hire people primarily based on the GPA?

Civil relations without falling within the framework Labor legislation, relieve the customer of the lion's share of responsibility for many points stipulating working conditions. For example, insurance premiums are not paid for the contractor, he is not entitled to vacation, sick leave, maternity leave, as well as other payments and benefits. These factors are advantages for the employer and disadvantages for the employee.

Civil legal relations, not falling within the scope of Labor legislation, relieve the customer of the lion's share of responsibility for many points stipulating working conditions.

But one way or another, there are a lot of situations when a company needs to attract an outside employee to optimize work, and organizations quite quickly find the necessary performers. Which quite clearly illustrates the interest of the contractor himself, despite all the shortcomings of working under a civil contract (GPC).

With whom to conclude?

Regardless of what you need, you, as an employer, can enter into a GPC agreement of any type: either a contract agreement, or a paid provision of services. At the same time, there are no restrictions on quantity. The only difference will be who exactly you sign the contract with and who your performer is.

1. With an individual.

A GPC agreement is perfect in a situation where a small amount of work needs to be completed, but it makes no sense to hire an employee for this. For example, this is equipment repair, documentation development, translation, transport transportation etc.

More often, with such cooperation, the customer does not make entries in the performer’s work book, although the actually established period of work should be included in the work experience. This is required by the rules of the GPC agreement. The employer must transfer both tax () and insurance contributions for the performer from the amount of remuneration () Pension fund(PFR). Insurance contributions to the Social Insurance Fund (SIF) and the Compulsory Medical Insurance Fund (FFOMS), in turn, are optional, therefore they are issued on a voluntary basis.

2. With an individual entrepreneur (IP).

The GKH agreement is also suitable when the customer requires the work or services of the organization. For example, website development, banner design, call center or cleaning company services, etc. In this case, the customer is not responsible for the individual entrepreneur, individual entrepreneur From the amount of remuneration he pays for himself both tax () and insurance contributions to the Pension Fund, Social Insurance Fund and Federal Compulsory Medical Insurance Fund.

This type of cooperation is mutually beneficial for both the customer and the contractor: the first does not contact the Pension Fund, and the second can reduce the interest rate of taxation. True, such agreements are closely monitored by tax authorities.

How to correctly draw up a GPA?

When registering an employee under a civil contract, you can use any form: draw it up yourself or take a ready-made one from the Internet. The main thing is, no matter what type of GPC agreement you choose, be sure to take into account all the points established by the Civil Legislation (Civil Code of the Russian Federation) so that the inspectors cannot classify your document as an employment contract (). For example, you cannot introduce clauses on creating working conditions and a social package for the performer, or indicate the name of the position.

Then what aspects should be taken into account in the GPC agreement? Sample form ():

– Full name of the customer and contractor;

– type of services provided;

– deadlines;

– amount of payment (direct remuneration or cost of compensation, if agreed) ();

– payment of an advance (a set amount or percentage of remuneration) ();

– conditions for failure to fulfill obligations or refusal;

– use of additional tools or materials if necessary ();

– signature of the persons who made the transaction.

Sometimes, when formalizing cooperation under the GPA, it is worth considering another important point: this is the re-qualification of the contract into an employment contract. That is, if a civil law contract has been concluded between the customer and the contractor, but in reality an employment relationship has been established, then the court may recognize the existing contract as an employment contract. This happens by paying taxes, fines or penalties.

In any case, drawing up and signing a civil or employment contract is entirely your choice. Both the employer and the employee must be guided by their own interests here in order to determine the basic terms of cooperation.