How to re-qualify a GPC agreement as a labor contract. "Requalification" of a civil law contract into a labor contract

Which conditions are safer to include in the GPA, and which are better left out.
How do courts determine the type of contract?
It is risky to constantly renew the GPA with the same individual.

Any remuneration paid to individuals under civil law contracts is not subject to insurance premiums to the FSS of the Russian Federation (clause 2, part 3, article 9 of the Federal Law of July 24, 2009 N 212-FZ "On insurance premiums to the PFR, FSS of the Russian Federation, FFOMS "). In addition, they do not need to be charged insurance premiums for injuries, if their payment is not provided for by the contract (clause 1, article 20.1 of the Federal Law of July 24, 1998 N 125-FZ "On Compulsory Social Insurance against Industrial Accidents and Occupational Diseases").
Therefore, many organizations prefer to enter into individuals not labor, but civil law contracts. For example, contracts or paid provision services. But don't overuse it. The FSS of the Russian Federation pays close attention to such contracts with individuals. Especially with employees. Inspectors increasingly began to reclassify relations under a civil law contract as employment and charge employers additional insurance premiums to the FSS of the Russian Federation and penalties (for more details, see the box on p. 46).

Note! Requalification of the contract entails administrative fines
If the FSS of the Russian Federation or the court recognizes that the organization covers labor relations with a civil law contract, it will not only be charged additional contributions for compulsory social insurance and injuries, but also fined. After all, evading the execution of an employment contract or concluding a civil law contract instead of a labor contract is an administrative offense. Fines are provided for this (part 3 of article 5.27 of the Code of Administrative Offenses of the Russian Federation):
- for an organization - in the amount of 50,000 to 100,000 rubles;
- for its officials (usually for the general director of the organization) - in the amount of 10,000 to 20,000 rubles.
If the employer is an individual entrepreneur, he will be fined a smaller amount - from 5,000 to 10,000 rubles. The decision on these fines is made by the labor inspectorate (parts 1 and 2 of article 23.12 of the Code of Administrative Offenses of the Russian Federation).

The presence of only one sign of labor relations is not enough to retrain a civil law contract into an employment contract.

The courts identify several parameters that need to be guided by when distinguishing between labor and civil law relations. In their opinion, a civil law contract can be recognized as an employment contract only if there are several signs of an employment relationship (Resolutions Arbitration Court North-Western of 16.03.2015 N F07-697 / 2015 and dated 10.30.2014 N A52-245 / 2014, Moscow of 01.28.2015 N F05-16264 / 2014, Federal Antimonopoly Service of the Urals of 01.20.2014 N F09-14231 / 13 districts ).
Judges do not specify exactly how many signs are enough for retraining. They also do not indicate in the presence of what number of distinctive features a civil law contract cannot be recognized as a labor contract. This means that the more inconsistencies the organization points out, the more likely it is to prevent the re-qualification of the contract and additional accrual of insurance premiums. Let us analyze those features of the contract that judges take into account most often.

The contractor has the right to involve third parties, the employee is obliged to perform the work personally

An individual accepted into an organization under an employment contract is obliged to perform work personally and is not entitled to involve third parties for this (Articles 15 and 56 of the Labor Code of the Russian Federation). The contractor under a civil law contract may delegate the execution of the task to another person or hire a subcontractor (clause 1, article 706 and article 780 of the Civil Code of the Russian Federation).
This means that if a civil law contract provides for the possibility of attracting third parties, relations under it cannot be reclassified as labor.
The difficulty is that under most civil law contracts, an individual performs the work personally, without the involvement of subcontractors. Therefore, the FSS of the Russian Federation claims that this sign of labor relations alone is sufficient to requalify the contract as an employment contract.
Many courts disagree. They analyze the content of the contract. If there are no other signs of labor relations in it, the courts refuse to requalify the civil law contract as an employment contract and cancel the additional assessment of contributions (Resolutions of the Arbitration Court of the North-Western dated March 16, 2015 N F07-697 / 2015 and dated October 30, 2014 N A52-245 / 2014, Moscow dated 01.28.2015 N F05-16264/2014, Federal Antimonopoly Service of the Urals dated 01.20.2014 N F09-14231/13 and dated 04.29.2013 N F09-2424/13 districts).

The contractor, unlike the employee, is not subject to the rules of internal labor regulations

Labor relations provide for the subordination of the employee to the internal labor regulations established in the organization (Articles 15, 21, 22, 56, 68 and 189 of the Labor Code of the Russian Federation). In addition, the employee in the process of work is obliged to comply with the orders of the employer. For their improper performance, an employee can be subject to disciplinary liability (Article 192 of the Labor Code of the Russian Federation).
The internal labor regulations do not apply to the contractor performing work under a civil law contract. For example, he is not required to be in the office during the entire working day (from 9.00 to 18.00) and has the right to work at other agreed times. The contractor cannot be subject to disciplinary action.
The courts believe that the absence in the contract of a condition on the subjection of a citizen to the internal labor regulations is an additional argument against the retraining of relations into labor relations (Decree of the Arbitration Court of the West Siberian of 04/02/2015 N F04-16985 / 2015, North-West of 16.03. -697/2015 and dated 10/30/2014 N A52-245/2014, Federal Antimonopoly Service of the Urals dated 01/20/2014 N F09-14231/13 and dated 04/29/2013 N F09-2424/13 districts).
But if the contractor was familiarized with the internal labor regulations, there is a risk that the inspectors will take advantage of this to charge additional contributions.

The employee performs job duties on an ongoing basis, while the performer is assigned a one-time task

An employee registered under an employment contract is assigned by the employer to a specific position. It should be included in the staffing table. The organization assigns certain labor functions to the employee (Articles 15, 16 and 57 of the Labor Code of the Russian Federation). These features are listed in the job description. It is understood that the employee will perform them on an ongoing basis for a long period of time.
Under a civil law contract, the contractor is usually assigned to perform a one-time task (clause 1, article 702 and clause 1, article 779 of the Civil Code of the Russian Federation). For example, develop computer program or project documentation, improve the territory at the end of the winter period, prepare an expert opinion.
According to the judges, the one-time performance of work or the provision of services is a hallmark of a civil law contract. Therefore, the judges point out that relations under such an agreement cannot be equated to labor (Decrees of the East Siberian Arbitration Court dated November 27, 2014 N A33-22064 / 2013, Ural FAS dated January 20, 2014 N F09-14231 / 13 and dated April 29, 2013 N F09 -2424/13 districts).
Some organizations constantly renegotiate or renew civil law contracts with the same individual to perform the same task (for example, office cleaning). A number of courts believe that this does not translate the relationship between the contractor and the customer into the category of labor (Decrees of the Moscow Arbitration Court dated 04/02/2015 N F05-2340 / 2015 and dated 01/28/2015 N F05-16264 / 2014, North-West dated 03/16/2015 N F07-697 / 2015 and the Ural district of February 17, 2015 N F09-213 / 15 districts).
But the systematic renegotiation of a civil law contract with one contractor increases the risk of his retraining in labor and additional assessment of contributions to the FSS of the Russian Federation. For example, the Federal Antimonopoly Service of the East Siberian District recognized that the relationship was labor, since the organization on an ongoing basis consumed the results of the personal labor of the same performers (Resolution of 06/20/2014 N A33-11367 / 2013). So, in this situation, it is safer to conclude employment contracts.

Note. It is safer to draw up a long-term relationship with the contractor with an employment contract.

They do not create a workplace for the performer and do not provide him with tools and materials

The employer provides the employee with everything necessary for work, provides him with a workplace, equipment, tools, technical documentation and other means (Articles 21 and 22 of the Labor Code of the Russian Federation). This is another hallmark of labor relations.
When working under a civil law contract, the performer performs the task from his own materials and means (clause 1, article 704 and article 783 of the Civil Code of the Russian Federation). This means that the inclusion in this agreement of the condition that the organization does not provide the contractor with equipment and inventory will be an additional argument against the re-qualification of the agreement.

Note. It is better to state in a civil law contract that the organization does not provide the contractor with inventory.

If it turns out that the contractor uses tools and materials belonging to the customer, the FSS of the Russian Federation or the court, if there are other signs of an employment relationship, may equate the contract with an employment contract. But even this circumstance is not an unconditional basis for recognizing labor relations and additional assessment of contributions (Resolution of the Arbitration Court of the North-Western District of October 30, 2014 N A52-245 / 2014).

The contractor is paid for the final result, regardless of the time actually spent

Depending on the system of remuneration, the employee is set an official salary or piece rates (Articles 129 and 135 of the Labor Code of the Russian Federation). In addition, taking into account the complexity, quantity, quality and working conditions, employees are paid bonuses and other incentives.
Unlike labor relations, the contractor will receive payment only after completing the assignment and signing the acceptance certificate (clause 1, article 711 and clause 1, article 781 of the Civil Code of the Russian Federation). That is, he will be paid only the final result, without taking into account the time actually spent. The remuneration under a civil law contract is usually a fixed amount. No additional payments, bonuses, allowances are due to the performer.
This means that in civil law contracts it is necessary to clearly prescribe the task to the contractor, the deadline for its implementation and the calculation procedure. The regularity of payments (especially if they are made within the terms of payment of salaries) can push the inspectors to re-qualify the contract.
In the event of claims, it is advisable to present an act of acceptance of work and payment documents. From them it should follow that the contractor was paid only after the delivery of the work and in the amount that the parties agreed upon at the conclusion of the contract. According to the judges, in conjunction with other signs, this confirms that the relationship with the contractor is not labor (Resolutions of the Arbitration Court of the North-Western dated March 16, 2015 N F07-697 / 2015 and dated October 30, 2014 N A52-245 / 2014, Ural from 02/17/2015 N F09-213 / 15, FAS of the Volga-Vyatka district of 12/16/2013 N A82-15243 / 2012 districts).
You can also refer to another difference. The employer is obliged to pay wages at least twice a month - an advance payment and monthly settlement (Article 136 of the Labor Code of the Russian Federation). Under a civil law contract, the final result is paid. Advances are usually not provided.
But the inspectors may claim that by not paying advances to the contractor (and they consider him an employee), the organization has once again violated labor laws. In this case, it is necessary to give other arguments in favor of the fact that the relationship with the contractor does not have signs of labor.

The contractor is not provided with social guarantees laid down for employees under the Labor Code of the Russian Federation

Another difference between labor relations and civil law relations is that the contractor is not entitled to any social guarantees. For example, he does not have the right to paid leave, various compensations, payment for sick time. Providing the contractor with social guarantees increases the risk of re-qualifying the contract as a labor contract.
But the absence of social payments speaks in favor of the fact that the contract is civil law. Many courts think so (Resolutions of the Arbitration Court of the Far East of March 26, 2015 N F03-559 / 2015, North-West of March 16, 2015 N F07-697 / 2015 and Ural of February 17, 2015 N F09-213 / 15, FAS of the North Caucasus dated 06/20/2014 N A63-1302 / 2013, Ural district dated 01/20/2014 N F09-14231 / 13 and Volga-Vyatka district dated 12/16/2013 N A82-15243 / 2012).

In civil law contracts, it is safer not to use the terminology characteristic of labor relations

In work contracts or paid services and documents to them, it is better to name the parties as provided for by the Civil Code. That is, the contractor or contractor and the customer (clause 1 of article 702 and clause 1 of article 779 of the Civil Code of the Russian Federation). It is safer not to use terms specific to employment contracts - "employee", "employer", "position", "profession", "employment", "start date", "place of work", "probationary period", " wages, layoffs.

An agreement was concluded between the Contractor (LLC) and the Customer for Maintenance engineering networks of the building for a period of 1 year with monthly issuance of acts and monthly payment. The LLC does not have employees with the necessary qualifications to provide these services. A subcontractor (SP) was involved, which actually provided services under the contract. Is there a risk that the contract between the individual entrepreneur and LLC for the provision of services will be reclassified into an employment contract? If yes, how to avoid it? Thanks

The contract itself is quite legitimate and has the right to exist, especially since it was concluded not with an individual, but with an individual entrepreneur. But for the purposes of preventing its retraining in an employment contract, the following factors are important. So, in order to minimize the risk of re-qualification of contracts into labor contracts, it is desirable that the services are not related to labor duties. In addition, it is important that there are no positions similar to the services provided in the staff list. This may serve as the basis for the conclusions of the inspectors that the employee actually performs the duties of the vacant position.

Since 2015, the responsibility for replacing labor relations with civil law ones has been significantly tightened.

If the organization concludes a GPA instead of labor contracts, then inspectors will be able to independently re-qualify such contracts as labor contracts without going to court (Article 19.1 of the Labor Code of the Russian Federation). In this case, the organization is threatened with:

- From the labor inspectorate: from 01/01/2015, a direct rule on administrative responsibility appeared precisely for the fact of concluding a civil law contract that actually regulates labor relations between an employee and an employer - Part 3 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, where fines have increased significantly (for officials - from 10 thousand to 20 thousand rubles; for individual entrepreneurs - from 5 thousand to 10 thousand rubles; for legal entities - from 50 thousand to 100 thousand rubles). rub.).

- From the FSS: the fund will additionally accrue to the organization not only contributions from payments to employees under the GPA, but also penalties with a fine (part 1 of article 25, article 47 of the Federal Law of July 24, 2009 No. 212-FZ; paragraph 1 of article 19, paragraph n. 1 - 3 Article 22.1 of the Federal Law of July 24, 1998 No. 125-FZ).

Thus, there is a high risk of GPA being reclassified into employment contracts. The article below provides arguments in favor of the organization. There are also examples of both positive and negative practices on this issue. Read about what conditions must be met in order for the indicated risk to be minimal.

Rationale

Freelancers: explain how to avoid possible risks

A civil law contract can be recognized as a labor contract

It is forbidden to replace an employment contract with a civil law one (part four, article 11, part two, article 15 of the Labor Code of the Russian Federation). A substitution, if any, will be easily detected by inspectors of the Pension Fund of the Russian Federation, the FSS of Russia or the GIT during an inspection (Article 19.1 of the Labor Code of the Russian Federation). For this violation, the organization faces a fine of up to 100,000 rubles (part 3 of article 5.27 of the Code of Administrative Offenses of the Russian Federation). For a repeated similar violation, the punishment is tougher - up to 200,000 rubles (part 5 of article 5.27 of the Code of Administrative Offenses of the Russian Federation). *

Compare types of contracts. A civil law contract differs from an employment contract in several ways (Art. This is the subject of the contract, the procedure for formalizing relations, the parties to the contract, their status and obligations, the ability to involve third parties to perform work under the contract, the duration of the contract, etc. (sample below).

Differences between a civil law contract and an employment contract

Comparable feature	Labor contract	Civil contract
Subject of the contract	Labor function, that is, work in a certain position, profession or specialty	One-time order or a certain amount of work
Parties to the agreement	Employee and employer	Customer and contractor
The status of the parties to the contract in relation to each other	The employee is subject to the Internal Labor Regulations of the organization	The parties to the contract are on an equal footing with each other. The contractor (contractor) is not subject to the Internal Labor Regulations of the organization
The ability to involve third parties to fulfill the order of the customer	No, the employee must perform the labor function personally	Yes, if it is stipulated in the contract
Contract time	The validity of an employment contract concluded for an indefinite period does not terminate after the employee completes a specific assignment	By general rule, the contractual relationship ends after the act of acceptance and delivery of work is drawn up and signed

We take into account the risks when hiring personnel. In practice, such an economical form of attracting freelancers as staff leasing (outstaffing, secondment) is also widely used. These terms are rather conditional, since they are not fixed in the legislation. The essence of personnel leasing is that the customer organization and a private employment agency enter into a civil law contract (most often, paid services (clause 1, article 779 of the Civil Code of the Russian Federation)). Then the agency engages an employee under an employment contract who actually performs work for the customer organization. As a rule, the workplaces of such employees are located on the territory of the customer of the service.

According to the Labor Code, labor relations arise when an employee is allowed to work (part one, article 61, part two, article 67 of the Labor Code of the Russian Federation). Accordingly, the risks are obvious with such a scheme of relations - in the event of a dispute, the court may recognize agency employees as employees of the organization under an employment contract. What matters in this case will be who exercised control over the work of employees, whose internal labor regulations they obeyed, who set tasks for them. The main argument in labor disputes that will protect the position of the organization is the existence of an employment relationship between the employee and the agency that provided him. If there were no such relations or they were civil law, then the position of the company immediately weakens.

Nina Kovyazina, Deputy Director of the Department of Education and Human Resources of the Ministry of Health of Russia

Is it possible to conclude a civil law contract for the performance of work (provision of services), if the staff list contains vacant position with similar features

Yes, you can, if in fact such an agreement will not regulate labor relations.

The legislation does not prohibit hiring people under the GPA. Even if the state already has specialists who can solve the same problems. The parties to the contract have the right to choose the form in which it will be concluded. That is, each time the employer and the applicant can decide between themselves whether to conclude a GPA or formalize an employment relationship. This conclusion is consistent with the position of the Constitutional Court of the Russian Federation, which is reflected in the ruling of May 19, 2009 No. 597-О-О.

However, if a labor inspector or a court establishes that an employment relationship is actually hidden behind a civil law contract, then it is recognized as sham. Then the employer will be brought to administrative responsibility (part 4 of article 11, Labor Code of the Russian Federation, part 3 of article 5.27 of the Code of Administrative Offenses of the Russian Federation). *

Requalification of a civil law contract into a labor contract: arguments for and against

Requalification of a civil law contract into a labor contract: arguments for and against
How to prove that the office of the company did not create a workplace for the counterparty
On the basis of which it is possible to recognize the conditions on the rest regime of the counterparty as void without retraining the contract into a labor
How to justify the legality of the inclusion of "northern" coefficients in the payment for work under a civil law contract

The number of disputes in which government agencies are trying to prove that between the parties there were not civil law, but labor relations, is increasing. The purpose of this practice is to ensure the receipt of tax collections into the budget, since until recently there was a UST. And although insurance premiums, which are uniform for both employees and civil law counterparties, have been introduced since this year, the problem of additional charge of mandatory payments has only worsened. This is due to the fact that government agencies still have time when they can check the legality of paying the UST.

Below are the arguments "for" the recognition of labor relations and "against".

Ways to determine the labor nature of relations

IN judicial practice Two approaches have been developed on how to determine the nature of the relationship between a company and an individual. They can be described as formalist and informalist. They are largely based on the methods of proof used by the tax authorities.

formalist approach. When examining the validity of a tax benefit, the courts should pay attention primarily to the actual activities of the taxpayer, and not to how he documents it. However, the formalist approach noticeably prevails, since it is based solely on the analysis of the texts of the submitted agreements. If they do not contain the conditions inherent in an employment contract, the relationship is recognized as civil law. At the same time, an employment contract is considered a kind of civil law contract, but with distinctive provisions due to the requirements of industry legislation. So, if the tax authority did not indicate "what exactly the labor nature of the concluded contracts is expressed in", then the taxpayer's actions are recognized as lawful.

Agreements do not meet the concept of an employment contract if they:
- a specific specialty has not been agreed in accordance with the staffing table;
- the subordination of the employee to the rules of the internal labor schedule and the provision of working conditions provided for by the Labor Code of the Russian Federation are not stipulated.

This is a very common position for arbitration courts (for example, the decision of the FAS MO dated 03/04/2009 in case No. KA-A40 / 891-09 and).

Criticism of the formalist approach. It seems that the court cannot refer only to the terms of the contract as sufficient evidence. For example, regarding the subordination of the counterparty to the rules of internal labor regulations. First, it is not clear from the text of the agreement to what extent the person actually complied with it. Control over the execution of an employment contract by a citizen is carried out only by the employer. If it is beneficial for him not to notice violations, then they will not be recorded by him.

Compliance by a party to a civil law contract with the internal labor regulations is also difficult to prove if the enterprise does not have video surveillance or checkpoints that record the movement of persons, and the entry and exit of a person from the territory in any case can be issued “backdated”. Moreover, the state agency will have to additionally prove the inaccuracy of these records.

In our opinion, in case of any doubt, the position of the parties for the court should be preferable, since the burden of proving the legitimacy of the decision of the state body always lies with the latter. The conclusion about the labor nature of the relationship should be based not only on the text of the contract, but primarily on the actual circumstances of the case, no matter how difficult it may be to prove them. Secondly, the condition on the subordination of the counterparty to the internal labor regulations in a civil law contract is invalid, since the application of labor law norms to civil law contracts is illegal. However, arbitration courts allow re-qualification of the contract when they see such conditions in it.

Practice of arbitration courts.
Thus, in the resolution of the FAS VSO dated August 27, 2008 No. A19-17965 / 07-20-Ф02-4147 / 08, a comparison was made between the employment contract and the contract for the provision of services for compensation. The general message is the provisions of Art. 431 of the Civil Code of the Russian Federation, according to which the literal meaning of the terms of the agreement, in case of its ambiguity, is established by comparison with other conditions and its meaning as a whole (i.e., the norm of civil law is applied to labor contracts). As a result of comparing Art. 779 of the Civil Code of the Russian Federation and art. 56 of the Labor Code of the Russian Federation, the court concluded: the contracts are similar. Distinctive features - all the same "terms of contracts". From their content, the court determines the nature and specifics of the work performed and the relationship between contractors. In particular, he concludes that the person was not included in the production activities of the company; The organization was not interested in the process itself, but in its result. Note that in another case, the parties specifically indicated in the text of the contract that their relations were not subject to labor regulations, and the court based this on its decision.

Thus, the formalist approach cannot be called consistent. In addition, in this category of cases, there is a lack of evidence collected by the tax authorities. Therefore, the courts are forced to proceed only from the text of the submitted documents.

informalist approach. Attention - to the actual nature of the relationship between the parties. So, for the re-qualification of civil law agreements, an analysis of their text is not enough (Decree of the FAS ZSO of December 11, 2006 No. F04-8292 / 2006 (29245-A45-42)). The formalist approach is easy to apply - a civil law contract is recognized as an employment contract in exceptional cases, for example, when the parties are so inattentive that they use an employment contract template to complete a transaction for the provision of services; but informalist - allows you to justify your position with a general lack of evidence and entails an unconditional recognition of the nature of the relationship that the parties themselves aspired to.

Doctrinal signs of an employment contract

The legal doctrine reflects a formalist approach, so the essence of relations is determined solely through assumptions and inferences. At the same time, the purpose of the definition of labor relations in Art. 15 of the Labor Code of the Russian Federation - a reflection of not distinctive, but characteristic features for them. Below are the most common of them and counter-arguments for organizations that will defend the civil law nature of the relationship.

The personal nature of the work performed. This feature is inherent in all labor relations. However, the civil law principle of freedom of contract also allows this provision. In particular, in paragraph 1 of Art. 313 of the Civil Code of the Russian Federation, the fulfillment of the obligation is assigned to a third party, unless the obligation of the debtor to do this personally follows from the law, other legal acts, the terms of the obligation or its essence. Thus, the wording will not fundamentally differ from a similar provision in the employment contract. Therefore, the allocation of the personal nature of the performance of work as a distinctive feature is incorrect.

labor function. It is understood as work by position in accordance with the staffing table, profession, specialty, indicating qualifications or a specific type of work assigned. This feature is eliminated through the use of civil law formulations. The argument of the state body that the nature of the functions performed by a person “reminiscent of work according to the position in accordance with the staff list” can be countered by the provision on the nullity of the terms of the employment contract in civil law agreements.

Payment for work, not for its result. Practice shows, and the law allows some identity of the order of payment in civil law and labor relations. According to Art. 136 of the Labor Code of the Russian Federation, wages must be paid twice a month. The regularity of payment cannot serve as a strong argument in favor of retraining, since formally the procedure for payment is determined by the same freedom of contract. However, if the fact of labor relations is established, the payment of amounts once a month is a violation of the law, and not proof of its absence.

In addition, work contracts may provide for "northern" coefficients. This is also not a basis for re-qualifying the contract, since they are included in the total price of the transaction due to the nature of the work performed and the average cost of similar services, calculated based on the salary of employees with all compensations and allowances (Resolution of the FAS MO dated June 30, 2008 No. KA-A40 / 5891-08).

Focusing on the process, not the result, is very conditional. For example, a number of civil legal relations do not have a result independent of the process of activity. The latter includes the provision of services. Here it is purely individual: while defining the subject of this agreement in an exhaustive manner, the legislator did not include the achievement of a result in its concept (Resolution of the Constitutional Court of the Russian Federation of January 23, 2007 No. 1-P).

Cooperative labor. Yu.P. Orlovsky singled out, probably, the only distinguishing feature for labor relations - obedience to the rules of the internal labor schedule, when personal volitional activity is carried out in conditions of cooperative labor. This is what determines the mode of working time and rest time, personal responsibility for the performance of labor duties. In our opinion, the cooperative nature of the performance of work is a more significant feature than the formal obedience to the rules of the labor schedule. Its absence should speak in favor of the fact that the relations of the parties are civil law.

Submission to the administrative and law enforcement authority of the employer. Practice shows that the counterparty can actually obey, remaining a party to a civil law contract, and vice versa - perform work regardless of the orders of the management, having the status of an employee of the organization.

It all depends on the interest of the participants in the relationship and their agreement on this matter. The assumption of certain duties can be fictitious, which is why submission becomes formal. At the same time, the production need to coordinate the actions of the team gives rise to the need for leadership, while the obligation to obey does not mean that this work requires interaction with the rest of the employees of the enterprise.

Signs of the labor nature of the relationship of the parties

It should be noted that the peculiarities of labor relations, of course, must be taken into account by the courts. Their totality means that the work of a person was carried out in regular interaction with other workers, in otherwise it would be impossible.

The employer ensures the working conditions of the employee. At the same time, they are provided for by labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations and an employment contract. Evidence of this is the provision of premises, materials, tools. Counterargument: in the absence of a person, property (table, chair, telephone, etc.) was used by other employees, which excludes the possibility of qualifying the company's office as his workplace. In addition, according to paragraph 2 of Art. 975 of the Civil Code of the Russian Federation, the principal (principal) is obliged to provide the attorney (agent) with the funds necessary for the execution of the order. And by virtue of Art. 1001 of the Civil Code of the Russian Federation, under a commission agreement, the committent reimburses the amounts spent by the commission agent. These obligations do not contradict the nature of other civil law contracts.

That is, in civil law relations, the property independence of the parties matters: the contractor spends his own material resources, the employee, as a rule, belongs to the employer. The labor function is carried out in the property sphere of the employer, while the party to the civil law contract initially focuses on the price of the contract, commensurating its costs with this indicator. Counterargument - the premises were transferred to the person for temporary use on the basis of a lease agreement, which in principle excludes the labor nature of the relationship between the parties.

The employee is obliged to comply with the rules of the labor schedule. Judicial practice gravitates towards formalism: if this duty of the employee is not spelled out in the contract, then there is an argument in favor of the civil law nature of the relationship. At the same time, even the mode of operation of the counterparty is perceived as a condition of a civil law contract. Firstly, the requirements of internal documents can apply to any person located on the territory of the organization. Secondly, the line between facilitating the execution of a civil law contract (in the form of detailed instructions, etc.) and the instructions of the employer is very thin. For example, as part of the execution of a contract, individuals performed the tasks of a legal entity and the instructions of equipment manufacturing companies. The court regarded this as the timely provision of the contractor with the necessary information materials and a clear formulation of his requirements in accordance with Art. 718 of the Civil Code of the Russian Federation.

The parties agreed on the specific specialty of the performer. As a rule, the tax authorities try to reclassify the contract by linking the work performed by the counterparty with the work of other persons in the enterprise. According to the position of the Ninth Arbitration Court of Appeal, a civil law contract should establish the economic independence of a citizen without being tied to the rules of internal labor regulations, work and rest schedules, periods of incapacity for work (Resolution of the Ninth AAS dated November 11, 2009 No. 09AP-21584 / 2009-AK). FAS VVO also pointed out the impossibility of correlating the wording of the contract with the organization's staffing table (decision dated 03.03.2008 in case No. A31-1340 / 2007-15).

At the same time, the court may recognize actions related to the regular production activities of the company as a specific labor function (for example, in the case of hiring a driver, security guard, freight forwarder, electrician, loader, etc.). The counterargument is that almost any area of an enterprise's activity can be singled out as an independent one and transferred for execution under a civil law contract.

A strong argument in favor of the commercial nature of the relationship will be the presence of a citizen of similar agreements with other organizations, since the employee, as a rule, gives his work to one enterprise. As an option - a citizen has the status of an individual entrepreneur. So, the entire department of employees can be registered in a separate company, where the boss will be an individual entrepreneur. Here the argument about the personal performance of work is no longer applicable, because the contract is concluded with one person, and the performer is another. However, the court may interpret Part 3, Clause 1, Art. 2 of the Civil Code of the Russian Federation in such a way that, due to the lack of a reference to the entrepreneurial goals, the transaction recognizes the contract as labor.

Relations between the parties are of a long-term nature . This sign should be recognized as secondary, since it is valid only in addition to those indicated above. The counterargument is that the duration of the relationship is equally possible both in the field of civil and labor law, therefore it is not a hallmark of labor relations.

There are no reports on the work done and acts of acceptance and transfer of services rendered. The execution of these documents is a strong argument against the arguments about the pretense of civil law contracts. In accordance with Art. 715 of the Civil Code of the Russian Federation, the customer has the right to check the progress and quality of work. But if they do not use it, this will raise suspicion that the transaction is fictitious.

The personal responsibility of the employee is established. If the contract provides for a penalty (fine or penalty) for non-fulfillment of obligations, then this is an argument in favor of the civil law nature of the relations between the parties. Labor legislation does not allow fines for employees: they may be subject to disciplinary sanctions (Article 192 of the Labor Code of the Russian Federation) or material liability (Chapter 39 of the Labor Code of the Russian Federation).

conclusions

1. The labor nature of the relationship can be established only from the actual features of the performance of work (rendering of services).

2. The terms of employment contracts contained in civil law agreements are invalid. For this reason, with a lack of evidence, the court must proceed from the will of the parties themselves.

3. There are no such circumstances that in themselves would prove the existence of an employment relationship. Any of them can take place in civil law relations.

4. The subject of proving labor relations is the cooperative nature of the activity of a citizen, namely, three components: his labor function, entry into the organization (subordination to the internal labor regulations and fulfillment of obligations in the property sphere of the company) and the connection of his actions with the activities of other employees of the enterprise.

Quote

“For a person who does not have legal qualifications and whose main duties are to clean the premises, it seems difficult to correctly answer the question of the distinction between labor and civil law relations, moreover, this question cannot always be unambiguously answered by persons with a higher legal education.”

Resolution of the Ninth Arbitration Court of Appeal dated April 15, 2010 No. 09AP-5862/2010-AK.

The position of the courts: on what grounds is the contract recognized as labor or civil law

Work in progress:
Contracts are concluded with employees to perform work similar to those performed under employment contracts

The contracts do not reflect either the types of work, or the timing of their implementation, or the cost.

Under the contracts, they were obliged to perform work in a certain position, specialty or profession, while strictly observing all the instructions of the customer

The work performed is similar to the previously performed work function

The contract does not define specific work, the result of which must be transferred to the customer

Work in progress:
Doing specific work

Performing specific one-time work

Individuals, when performing work under the terms of contracts, are limited solely by the quality of the work performed and the deadline for their execution

Services do not relate to labor functions enshrined in the job descriptions of employees

Acts:
Lack of acts of acceptance of work performed

Acts and contracts do not provide for the performance of work and the delivery of their results by a certain date, but the performance of work during the term of the contract and their assessment at the end of each month

Work acceptance certificates do not imply acceptance of the result of work

Services are formalized by acts of acceptance of work performed under an employment contract

The acceptance certificates do not contain information about the work performed and their volume

Acts:
Availability of acts of services rendered

The work performed under the contracts is accepted according to the acts of acceptance of the work performed and paid in the amounts agreed by the parties in the contracts

Payment:
In expenditure cash orders, the amounts paid are called wages.

The contract stipulates that payment for work is made monthly.

The price of the contract consists of a monthly remuneration, payment is made monthly according to the time sheet

Contracts set working hours

As well as:
The customer undertook to provide the performers with basic and auxiliary materials, equipment and tools, overalls, safety shoes and PPE, to instruct, certify

The work book is kept by the customer

The contracts define a specific place for the performance of work - departments and workshops provided for by the staffing of the enterprise

The duration of legal relations and the regularity of concluding work contracts

Compliance with internal labor regulations

As well as:
Works are performed during the time free from the main activity (vacation, weekend)

Tasks in the contracts do not correspond to the regular job responsibilities of the staff

The contracts do not provide for the observance of a certain mode of work and rest, the payment of amounts for temporary disability and injuries, the provision of other guarantees of social protection to individuals

According to the terms of the contracts, the customer is not interested in the process itself, but in the result

Contracts do not contain conditions regarding labor regulations, social guarantees

Works performed under contracts (services rendered) do not imply the subordination of individuals to the internal regulations in the organization

How to distinguish between labor and related civil law contracts

According to the legislation, the insured is obliged to accrue insurance premiums to the FSS of the Russian Federation for the entire amount of wages for all reasons, with the exception of some payments, including remuneration under civil law contracts. Employers often explain the incomplete accrual of insurance premiums to the wage fund by the existence of written agreements with employees, mistakenly considering all such agreements as civil law contracts.

In this regard, attention should be paid to the letter of the FSS of the Russian Federation of May 20, 1997 No. 051 / 160-97 (it is applied in accordance with Article 423 of the Labor Code of the Russian Federation, since it does not contradict the Labor Code of the Russian Federation). So, when determining whether the contract is labor or related to it civil law, employees of the FSS of the Russian Federation analyze the real relationship between the parties that develop in the course of the work that is reflected in the contract. If its text does not contain essential elements regarding the nature of the work, the conditions for its implementation, the procedure and amount of payment, the obligations of the parties, they may ask the employer to additionally provide the necessary documented data. He, in turn, does not have the right to refuse this with reference to a commercial secret: information about the number, composition of employees, their wages, documents on the payment of taxes and obligatory payments, etc. cannot constitute a commercial secret.

So on what grounds does the FSS of the Russian Federation distinguish between labor and related civil law contracts?

1. According to Art. 56 of the Labor Code of the Russian Federation, the employee performs the labor function prescribed in the employment contract. Under a civil law contract, they perform a specific task (assignment, order, etc.). Its subject is the end result of labor (constructed or renovated building, delivered cargo, prepared accounting report, etc.).

2. The second sign of the employment contract follows from the first: hiring on the personal application of the employee, issuing an order (instruction) of the employer, which indicates the profession or position, salary, date of commencement of work, etc., as well as making an entry about work in work book.

3. The third, very significant feature that distinguishes these contracts is the procedure and form of remuneration. Wages under an employment contract are paid regularly. Under civil law contracts, the price of the work (service) performed, the procedure for its payment is determined by agreement of the parties, and remuneration is usually paid after the end of the work. The issuance of an advance allowable by civil law does not change the nature of such contracts: the final payment is always made after the contractor delivers the results of the work to the customer, and the advance payment can be returned.

In addition, unlike an employment contract under work contracts and paid services, the contractor bears the risk of accidental damage to the result of the work before it is accepted by the customer.

4. Another characteristic feature of an employment contract is the establishment of clear internal labor regulations for employees and the provision by the employer of working conditions stipulated by law. Those working under civil law contracts independently determine the methods and ways of fulfilling an order.

On December 08, 2010, the Labor Disputes magazine held a webinar for its subscribers on the topic “Employment contract in the interests of the employer”. Buyanova Marina Olegovna, Professor of the Department of Labor Law and Law, answered the questions of the participants of the event social security Moscow State Law Academy, lawyer of the Moscow Chamber of Lawyers, Honored Lawyer of the City of Moscow, Doctor of Law. Sciences.

Subscribers of the magazine, who for some reason could not take part in the webinar, can familiarize themselves with all the issues that were raised at the event on the website in the "Webinars" section. A video recording of the speech is also available for viewing.

Inspectors are trying to retrain the GPA into labor. But they do not always succeed in retraining the GPA into an employment contract. There are arguments that won't allow it.

Requalification of GPA into an employment contract can be dangerous

The conclusion between an employee and an employer of civil law contracts that actually regulate labor relations is not allowed (part 2 of article 15 of the Labor Code of the Russian Federation). The possibility of re-qualifying the contract is provided for in Article 19.1 of the Labor Code of the Russian Federation. This norm was put into effect by the Federal Law of December 28, 2013 No. 421-FZ. The re-qualification of the GPA into an employment contract is carried out, among other things, by the court at the request and on the basis of materials submitted by the authorized bodies.

Important article:

Interest in civil law contracts may be shown by tax authorities, auditors from non-budgetary funds, the police, and the labor inspectorate. These regulatory bodies have the right to come to the organization with a check. The result of the audit may be the fixation of violations and the adoption of measures for the re-qualification of civil law contracts into labor contracts.

When retraining companies will be forced to comply with the requirements of labor legislation. And not from the moment of re-qualification of the contract, but from the moment of its conclusion. In a practical sense, this means the payment of vacation pay, compensation for unused vacation, payment of sick leave and bonuses. Employers will also be required to pay additional insurance premiums from the amount of remuneration paid to employees and pay the corresponding fines and penalties. Employees will be able to demand compensation for non-pecuniary damage (Article 236 of the Labor Code of the Russian Federation).

The reason for the revision of the contract may be any of its clauses or conditions that indicate the existence of an employment relationship. For example, a clause stating that the performer is obliged to comply with the discipline and order established at the enterprise. Moreover, all fatal doubts when considering by the court disputes on the recognition of relations arising on the basis of a civil law contract, labor relations are interpreted in favor of the employee (Article 19.1 of the Labor Code of the Russian Federation).

To prevent retraining from happening, the employer should approach the drafting of the contract more responsibly. And to prevent the inclusion in it of compromising conditions that are characteristic of employment contracts.

The main features of an employment contract

According to Article 56 of the Labor Code of the Russian Federation, an employment contract is an agreement under which the employer undertakes to provide the employee with work according to the stipulated labor function, ensure working conditions, and pay wages. And the employee undertakes to perform the labor function determined by this agreement and to comply with the rules of internal labor regulations.

The employment contract does not involve the performance of a one-time task, but a permanent job of a certain kind. Its constituent element is the fulfillment of the orders of the employer in the process of work. For improper performance, the employee may be subject to disciplinary liability.

Unlike civil law, an employment contract may establish rules for bonuses to employees, their receipt of overtime and compensation payments. Payment of wages is always made taking into account the position of the employee, his salary, tariffs and harmful factors of production.

Among other things, the employment contract implies the provision of guarantees of social security (social package).

If the concluded contract meets the indicated criteria, then it is likely that the relationship from civil law will be reclassified into labor. And the employer will accrue all due contributions and penalties.

Features of a civil law contract

Unlike labor contracts, under civil law contracts, the contractor is not subject to the internal regulations of the enterprise. The contractor independently sets the time and order of work that he needs. It is the obligation to hand over the result of the work to the customer, and he is paid only for the completed assignment (certain work). In other words, it is not the time spent at work that is paid, but the final result of the work.

In this case, the customer undertakes to pay for the work performed or the services rendered to him within the time and in the manner specified in the contract (Article 779 of the Civil Code of the Russian Federation). The subject of the transaction here is the result of the work of the contractor, and not the performance of a certain labor function by him, as in an employment contract.

Payment is usually made after the completion of work and drawing up an act of work performed. While in an employment relationship, salary is paid every month (twice a month). The remuneration does not take into account either the duration of the work, or the qualifications of the performer, or the harmfulness or complexity of the assigned task.

Another distinctive feature is that the performer is not included in the staff list, is not required to comply with internal labor regulations and discipline. He also does not bear responsibility for violations and is only responsible for the result of the work and its timing.

For its part, the customer has the opportunity to use the work of the contractor exclusively within the framework of a specific service specified in the contract. The customer cannot force the contractor to do other work.

Unlike an employment contract, a civil law contract is concluded for the performance of a certain work, the purpose of which is to achieve its specific end result.

Achieving a specific result in the framework of labor relations does not always occur. In addition, the achievement of the result stipulated by the contract entails the termination of this contract. The employment contract (if it is not urgent) continues to be valid.

Long term relationship

Some organizations constantly renegotiate or prolong civil law contracts with the same individual. In this case, the performer performs the same task (for example, cleaning the office). Some courts believe that this does not translate the relationship between the contractor and the customer into the category of labor (decree of the Arbitration Court of the Ural District dated February 17, 2015 No. F09-213 / 15).

The judges note that citizens and legal entities are free to conclude an agreement and determine its terms (Article 421 of the Civil Code of the Russian Federation), including in terms of the term of the agreement (decisions of the Arbitration Court of the Moscow District dated 02.04.15 No. F05-2340 / 2015, dated 28.01. 15 No. Ф05-16264/2014). The long-term nature of the disputed legal relationship does not change the civil law nature of the contracts and is not indisputable evidence of the existence of labor relations between the parties (Resolution of the Arbitration Court of the North-Western District dated March 16, 2015 No. F07-697 / 2015).

The Arbitration Court of the Volga District, in its resolution of June 22, 2016 No. F06-9672 / 2016, recognized that the duration of the contractual relationship and the responsibility of the performers for violating fire safety rules cannot be the basis for the GPA to be re-qualified into an employment contract. The court pointed out that the analysis of the content of the contract for the presence or absence of signs of a civil law or employment contract is of decisive importance.

At the same time, the circumstances of the duration of the contracts, the provision by the customer of the contractors with means of labor and the liability of the contractor for violation of fire safety rules are not indisputable evidence of the existence of relationships between the parties arising from the employment contract.

But in the presence of other dubious signs in long-term relationships, there is a risk of retraining (decisions of the Volga-Vyatka Arbitration Court of October 31, 2014 No. A79-10183 / 2013, the Far Eastern Federal Antimonopoly Service of October 1, 2012 No. Ф03-3620 / 2012 districts).

The FAS of the East Siberian District noted that society systematically consumed the personal labor of the same individuals. Despite the conclusion of civil law contracts of various forms and for various periods, the functions of the employee remained unchanged: the transportation of goods and people (Decree No. A33-11367 / 2013 of 20.06.14).

In the decision of the Arbitration Court of the North Caucasian District of October 20, 2015 No. Ф08-7134/2015, the court concluded that the activities of individuals under contracts did not meet the criteria of equality, autonomy of will and independence, characteristic of civil law relations, and was labor.

When deciding in favor of the FSS, the courts often take into account that individuals were included in the production activities of the organization, in its work schedule, the relationship between the parties was of a subordinate nature (decree of the Arbitration Court of the East Siberian District of November 14, 2014 No. F02-5013 / 2014).

Payments were made on a monthly basis in comparable amounts, regardless of the actual volume of services rendered. The relations of the parties had a continuing, systemic character. The interaction of performers with other employees took place in compliance with the working conditions and regime adopted in the organization. The process of labor of individuals had signs of a certain labor function in the organization (profession, specialty).

Use of materials and equipment of the customer

If the contractor uses the customer's materials and equipment when performing work, this is a sign of an employment relationship. After all, it is the responsibility of the employer to provide the employee with everything necessary for work: provide a workplace, equipment, tools, technical documentation, etc. (Article 22 of the Labor Code of the Russian Federation). Within the framework of a civil law contract, the contractor performs the task with his own funds and from his own materials (clause 1, article 704, article 783 of the Civil Code of the Russian Federation).

If it turns out that the contractor uses tools and materials belonging to the customer, then in the presence of other suspicious signs, the auditors will seek to re-qualify the contract as an employment contract. The court can support them.

In the decision of the Arbitration Court of the East Siberian District dated November 14, 2014 No. Ф02-5013/2014, the judges, along with other signs, took into account that the performer performed work on the premises of the company using its machinery and equipment.

However, in the decision of the Arbitration Court of the North-Western District dated October 30, 2014 No. А52-245/2014, the court indicated that there were no conditions in the work contracts obliging the contractors to comply with a certain work and rest schedule. Employees did not obey the internal labor regulations, were not brought to disciplinary responsibility.

Re-qualification of the GPA into an employment contract due to the regularity of payments

Depending on the system of remuneration, the employee is set an official salary or piece rates (Articles 129, 135 of the Labor Code of the Russian Federation). In addition, taking into account the complexity, quantity, quality and working conditions, employees are paid bonuses and other incentives.

The customer pays the contractor for the final result, regardless of the time spent. The employee will receive payment only after completing the task and signing the act (clause 1, article 711, clause 1, article 781 of the Civil Code of the Russian Federation). The remuneration under a civil law contract is usually a fixed amount. No additional payments, bonuses, allowances are due to the performer.

In a civil law contract, it is necessary to clearly state the task to the contractor, the deadline for its implementation and the calculation procedure. The regularity of payments may lead inspectors to the idea of replacing labor relations with civil law ones, especially if payments are made on paydays.

In the event of claims, it is advisable to present acts of acceptance of work performed and payment documents. It should follow from them that the company paid off with the contractor only after the delivery of the work and in the amount that the parties agreed upon when concluding the contract (decisions of the North-Western Arbitration Court dated 16.03.15 No. F07-697 / 2015, Uralsky dated 17.02.15 No. F09- 213/15 districts).

If the amount of the fee does not depend on the volume and quality of work, and the same list of works is included in the acts every month, this is a risk factor (Decree of the Autonomous Association of the Volga-Vyatka District dated December 25, 2015 No. A79-9190 / 2014). Hourly guaranteed monthly payment is unacceptable (decision of the Central Administrative District of the Central District dated 04.04.16 No. F10-469 / 2016).

There is another difference in contracts. The employer is obliged to pay wages at least twice a month (Article 136 of the Labor Code of the Russian Federation). Within the framework of a civil law contract, the final result is paid. There are usually no advances.

Courts pay attention to the rules for calculating remuneration. Tariff rates, official salaries, labor participation rates, etc. are not applicable to the contractor (decree of the AC of the East Siberian District of November 27, 2014 No. Ф02-5005 / 2014).

Inadmissible signs of an employment relationship

Among the unacceptable signs that may indicate the replacement of labor relations with civil law ones, one can single out:

use of labor terms in contracts;
transfer of full-time employees to outsourcing;
the absence of a list and scope of work or services in the contract;
social guarantees to the contractor;
fixing in the contract the mode of work and rest or the obligation to follow the instructions of staff members;
hiring on a personal application, issuing an order, including a position in the staff list;
the actual lack of independence of the employee.

In civil law contracts, it is categorically not recommended to use the terminology characteristic of labor relations: “employee”, “employer”, “position”, “profession”, “employment”, “date of commencement of work”, “place of work”, “ probationary period”, “salary”, “dismissal”, etc. In contract agreements (paid services), acts and other documents, the parties must be called as provided for by the Civil Code of the Russian Federation: “executor”, “contractor”, “ customer” (clause 1, article 702, clause 1, article 779 of the Civil Code of the Russian Federation).

If the performers previously worked in the company under an employment contract, the court may conclude that their activities are aimed at obtaining unreasonable tax benefits (decrees of the Federal Antimonopoly Service of the West Siberian District dated 04.27.11 No. A27-6452 / 2010, dated 03.24.11 No. A03 -1259/2010). The judges noted that the dismissal and registration of employees as individual entrepreneurs while maintaining labor functions were made at the initiative of the employer. In fact, individuals are in an employment relationship with the organization on an ongoing basis, receive wages at the cash desk.

The law does not prohibit an employee from quitting, becoming an entrepreneur, and providing services to a former employer. But, firstly, it should be a personal initiative of an individual. Secondly, the company must have a convincing explanation why it used the services of an individual entrepreneur, and did not hire another employee. You need to show a business goal that is not related to saving insurance premiums.

If the scope of work is not specified, then the courts may come to the conclusion that labor as such is important for the parties, it is possible to re-qualify the GPA into an employment contract (Decree of the Federal Antimonopoly Service of the Central District of 04.04.16 No. F10-469 / 2016).

Providing the contractor with social guarantees greatly increases the risk of re-qualifying the contract as a labor contract. And on the contrary, the absence of social payments says that the contract is civil law (decisions of the Far Eastern Arbitration Court dated 03.26.15 No. F03-559 / 2015, North-West dated 03.16.15 No. F07-697 / 2015, North Caucasian Federal Antimonopoly Service dated 06.20.14 No. A63-1302 / 2013, Ural district dated 01.20.14 No. F09-14231 / 13 districts).

The terms of the agreement on subordination to internal regulations are an unacceptable sign. When considering one of these disputes, the court emphasized that the auditors from the FSS did not prove that individuals were familiar with the internal labor regulations and performed work in accordance with the work schedule established by the company (decree of the North-Western District Arbitration Court of October 30, 2014 No. A52-245 /2014).

If the customer issued an order to enroll an employee in a certain position, made an entry in the work book, paid for labor at tariff rates, the court unequivocally requalifies the civil law contract as an employment contract (resolution of the Moscow District Arbitration Court dated January 28, 2015 No. Ф05-16264 / 2014).

During interrogations, the performer may admit that he is not independent, follows the instructions of the management, or considers himself a full-time employee of the company. This is one of the main signs of an employment relationship. In the presence of such evidence, the court is likely to take the side of the inspectors (Decree of the Federal Antimonopoly Service of the Volga-Vyatka District dated July 16, 2012 No. A43 14361/2011).

And, on the contrary, if the court establishes that the contracts did not provide for the conditions for observing a certain regime of work and rest of the performers, disciplinary liability for failure to perform work, he will take the side of the company (Resolution of the Arbitration Court of the North Caucasus District dated 08.22.16 No. A32-36800 / 2015 ).

Based on the materials of the journal Arbitration Tax Practice.

The Supreme Court upheld the demand of the tax authorities and recognized the company's contracts with individual entrepreneurs
Ivan

Well, there the situation was different from yours, I turned to the source, the journalists are still

Resolution of the Arbitration Court of the East Siberian District of October 27, 2016 N F02-5659 / 2016 in case N A58-547 / 2016 (in this case, the Supreme Court refused to transfer to the Economic Board of the Armed Forces)

During the outing tax audit established, that the number of employees is 1 person - director, there are no other staff units, a 2-NDFL certificate is submitted for one employee (director of the company). To carry out activities related to the processing of waste and scrap metal, the company, under contracts for the provision of services, engages individuals with the status of an individual entrepreneur.
In the audited period, the society having no employees concluded contracts for the provision of services for a fee with individual entrepreneurs for the following types of services: scrap metal processing (Altynbaev A.Zh., Bondar Yu.A., Vlasyuk A.V., Kartoev M.D., Karyukov E.A., Kompaneets A. .V., Kompaneets R.V., Kuzyakov A.V., Leukhin M.S., Pascal G.E., Frolov V.Yu., Cheshtanov V.K., Sharkov S.V., Yakimov I.V. .); maintenance, operation of vehicles - truck crane KS-55730 (Morozov E.Yu.); activity accounting(Lipskaya O.S., Obrevko M.A.); conducting cash transactions (Leukhina O.A.); logistics, cash transactions (Borisova Yu.S.).
The company's relations with contractors are formalized by contracts for the provision of services for a fee, the performance of work (rendering of services) - by acts of work performed, the payment of remuneration - by cash receipts.
Article 16 Labor Code Russian Federation labor relations arise between the employee and the employer on the basis of an employment contract concluded in accordance with Articles 57-62 of the Code.
By virtue of Article 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 according to the stipulated labor function, to ensure working conditions provided for by labor legislation and other regulatory legal acts containing labor law norms, collective agreement, agreements, local regulations and this agreement, pay the employee wages in a timely manner and in full, and the employee undertakes to personally perform the labor function defined by this agreement, to comply with the internal labor regulations applicable to this employer.
In accordance with Article 702 of the Civil Code of the Russian Federation, under a work contract, one party (contractor) undertakes to perform certain work on the instructions of the other party (customer) and hand over its result to the customer, and the customer undertakes to accept the results of the work and pay for it.
According to Article 779 of the Civil Code of the Russian Federation, under a contract for the provision of services for a fee, the contractor undertakes, on the instructions of the customer, to provide services (perform certain actions or carry out certain activities), and the customer undertakes to pay for these services.
These civil law contracts are similar to an employment contract, as they involve the implementation of certain activities or actions.
At the same time, there are signs that make it possible to limit an employment contract from civil law contracts, such as: the performance of work under an employment contract involves the inclusion of an employee in the production activities of the organization; the employment contract provides for the subordination of the employee to the internal labor schedule, its constituent element is the fulfillment of the employer's orders in the course of work, for the improper implementation of which the employee may be subject to disciplinary responsibility; according to the employment contract, the employee performs work of a certain kind, and not a one-time task of the customer.
Article 57 of the Labor Code of the Russian Federation provides for the essential terms of an employment contract: place of work (indicating the structural unit); date of commencement of work; the name of the position, specialty, profession, indicating qualifications in accordance with the staffing table of the organization or a specific labor function.
If, in accordance with federal laws, the provision of benefits or restrictions is associated with the performance of work in certain positions, specialties or professions, then the names of these positions, specialties or professions and the qualification requirements for them must correspond to the names and requirements specified in the qualification reference books approved in the order established by the Government of the Russian Federation.
Therefore, the name of the contract in itself cannot be considered as a sufficient basis for unconditionally classifying the concluded contract as a civil or labor contract. Of decisive importance for the qualification of the contract concluded by the parties is the analysis of its content for the presence or absence of signs of a civil law or labor contract.
In the course of the consideration of the case, on the basis of an analysis of the conditions of the contracts for the provision of services concluded between the company and individual entrepreneurs, as well as testimonies, remuneration calculations, other evidence presented in the case file, the courts established that the service contracts concluded by the company and entrepreneurs were aimed at ensuring the activities of the company in in accordance with its main activity, given that the organization has only one employee (director), the contracts provide for the systematic performance of services with their regular payment on the first day following the month of the provision of services, the subject of the contracts contains a clear indication of the specialty and profession - accountant, cashier, logistics manager, as well as the specific type of activity assigned to the employee - acceptance, sorting, storage, shipment of scrap metal, for an accountant, cashier, logistician (cashier), the foreman, locksmith is held liable for the shortage of the property entrusted to them, as well as for the damage incurred by the customer as a result of compensation for damage by other persons, in all contracts for the provision of services for a fee, a condition is provided for the provision of services personally, the company, as a party to the contract, consumed the personal labor of individuals, all contracts concluded by the company were not one-time, but systematic: all contracts with individuals were concluded for a calendar year or until the end of calendar year. At the end of the calendar year or at the beginning of the year, all contracts were renegotiated in the form of an identical or similar contract. Individuals engaged by the company under contracts for the provision of services for a fee, having the status of individual entrepreneurs, for a long period of time, every day (except Sundays) provided their services for a full working day in accordance with with a schedule for receiving scrap metal from 09.00. to 18.00, with a break for lunch from 13.00. at 14.00. Wherein, it is possible to leave the workplace upon notification of the management of the company. These circumstances indicate that entrepreneurs were required to comply with the company's work schedule. For reference entrepreneurial activity in the field of scrap metal processing, the company has purchased and the workplaces of persons providing relevant services are equipped with the necessary office equipment, software, as well. Individual entrepreneurs attracted by the company use the premises, equipment, tools, machinery, etc. belonging to the company in their activities. free of charge.
The condition for concluding contracts for the provision of services with individuals involved in the activities of the company was their registration as individual entrepreneurs. Upon termination of the service relationship d society, individual entrepreneurs ceased their entrepreneurial activities and deregistered.
All individual entrepreneurs apply a simplified taxation system with the object of taxation "income" according to the applications submitted by them in the month of registration as an individual entrepreneur.
During the audit, the tax authority also found that tax returns paid in connection with the application of the simplified tax system for 2011, 2012, 2013 for individual entrepreneurs were submitted to the tax authority centrally via telecommunication channels in one period under the powers of attorney of entrepreneurs by the Company signed by the legal representative of the company Zhabin O.V. In declarations under the simplified tax system, the object “income” basically corresponds to the amount of income received from the company.
Consequently, the actual economic meaning of the activities of entrepreneurs attracted by society was a substantive implementation labor activity as employees.
Thus, the activities of the company related to the conclusion of service agreements with individual entrepreneurs using the simplified taxation system, and in essence - performing labor duties, are reasonably qualified by the tax authority as aimed at obtaining unjustified tax benefits by the taxpayer by evading the duties of a tax agent for Personal income tax (calculation of tax, withholding and transfer of tax within the time limits established by law).
In refusing to satisfy the applicant's claims, the courts reasonably proceeded from the fact that the formalization of the actual labor relations by civil law contracts for the provision of services for a fee gives the formal customer of the performance of work (the provision of services) a documentary reason to believe that it is possible not to fulfill the tax agent's obligation to calculate, withhold and transfer of income tax.
These conclusions of the courts do not contradict the evidence available in the case.

as you can see, the picture emerges is definite and not in favor of the OO, therefore, in my opinion, in this case, the re-qualification of the GP relations into labor relations was completely justified and it was by no means done on some 1 or 2 grounds, therefore it has nothing to do with your situation

In the event of an unlawful conclusion of a civil law contract (GPA), which actually regulates labor relations between an employee and an employer, such civil law contracts (GPC) may be recognized as labor contracts, and the employer may be held administratively liable.

Who is the initiator of the re-qualification of the GPC agreement into a labor one?

According to Article 15 of the Labor Code of the Russian Federation, the conclusion of a GPA that actually regulates labor relations between an employee and an employer is not allowed. Therefore, the Code allows the re-qualification of the GPC agreement for the performance of work or the provision of services in the labor market.
Citizens themselves are primarily interested in such retraining. The basis for it is a written statement by the contractor under the GPC agreement and the order of the state labor inspector to eliminate the violation of Part 2 of Art. 15 of the Labor Code of the Russian Federation.
Recall that any citizen with whom the organization has concluded a GPC agreement can file a complaint with the district prosecutor's office and / or the State Labor Inspectorate (GIT) of a constituent entity of the Russian Federation. Within 30 days his complaint will be considered ( the federal law dated January 17, 1992 No. 2202-1 "On the Prosecutor's Office of the Russian Federation"; TC RF). You can send a complaint through the official website of these departments.
After considering the complaint, the prosecutor's office may issue representation and the State Labor Inspectorate prescription on the elimination of violations of labor legislation, mandatory for the employer (paragraph 6, part 1, article 357 of the Labor Code of the Russian Federation).
The GPC agreement can be reclassified by the labor inspectorate based on the results of the audit, that is, without the appeal of citizens.
Besides, the GPC agreement can be re-qualified as a labor court:

In order to recognize the relationship between an organization and a citizen as either labor or civil law courts, they must not only take into account the presence of formalized acts (GPA, staffing, etc.), but also establish whether there were actually signs of an employment relationship and an employment contract (definition Supreme Court RF dated September 25, 2017 No. 66-KG17-10).
If during the consideration of the case signs of labor relations are found, then the provisions of labor legislation will apply to such relations (part 4 of article 11 of the Labor Code of the Russian Federation, letter of the Ministry of Labor of Russia dated 15.03.2016 No. 17-4 / B-107).
Note! If the GPC agreement has expired, then the relationship that has arisen between the organization and the citizen can only be recognized as labor by a court (part 2 of article 19.1 of the Labor Code of the Russian Federation).

EXAMPLE 1

In the direction of the Employment Center of the city of Murmansk from February 21, 2015 to June 10, 2016 Grushko V.D. worked in OJSC "Murmansk Shipping Company" (hereinafter - OJSC).
During employment, the defendant imposed on him the registration of labor relations by GPC agreements (contracts for the provision of paid services No. 262 of February 20, 2015, No. 1317 of October 22, 2015, No. 291 of March 16, 2016).