Reimbursement for the cost of renting an employee's accommodation. Renting housing for an employee: personal income tax and insurance premiums

T. M. Medvedeva
expert of the journal "Income Tax: Accounting for Income and Expenses"

Enterprises that need highly qualified specialists often invite them to work from other regions (and sometimes countries). Such employees in a new place inevitably have to look for housing for themselves and their families. And, as a rule, the condition of payment by the employer of renting an apartment is one of the decisive arguments for the consent of specialists to move. It would seem that the economic feasibility of the costs incurred by the organization should not be in doubt. But not with officials of regulatory bodies. They just speak out against the recognition of such costs as part of tax expenses in full. The arbitrators, in turn, hold a different opinion on the designated issue. We propose to analyze the arguments for and against this controversial situation.

Why does an employer pay for an employee's rent?

- with the relocation of this employee, his family members and with the transportation of property (unless the employer provides the employee with appropriate means of transportation);

- with the arrangement at a new place of residence.

At the same time, the procedure and amount of compensation to employees (with the exception of those who work in state and municipal bodies and institutions) for the costs of moving to a new place of work in another locality are determined by a collective agreement or a local regulatory act or agreement of the parties to the employment contract, unless otherwise established by the Labor Code Russian Federation, other federal laws and other regulatory legal acts of the Russian Federation.

With regard to the cost of the transfer itself and the carriage of luggage, there are no questions. But what is meant by "arrangement"? This term, obviously, can mean a fairly extensive list of costs, one way or another related to the arrangement of a specialist in a new place of residence, including the cost of renting housing. In fact, the cost of renting an apartment is the cost associated with creating the necessary conditions for providing housing for an employee and his family members (this is the interpretation of the concept of “arrangement” given in explanatory and encyclopedic dictionaries).

Thus, the reason for the company's expenses associated with the payment of rent for employees' housing is a kind of bonus (goodwill gesture) on the part of the employer, attracting non-resident (or foreign) specialists to work. But how to properly qualify this type of expense for income tax purposes? Moreover, the opinions of official bodies and judicial instances on this matter differ.

What expenses are included in wages?

The general principle of attributing certain types of costs to labor costs is formulated in par. 1 st. 255 of the Tax Code of the Russian Federation. Schematically, this principle looks like this.

Article 255 of the Tax Code of the Russian Federation also provides a list of such costs (we emphasize, open). Specifically, labor costs include:

- the cost of free housing provided to employees of the taxpayer in accordance with the procedure established by the legislation of the Russian Federation (the amount of monetary compensation for the failure to provide such housing, utilities and other similar services) (clause 4);

- other types of expenses incurred in favor of the employee, provided for by labor and (or) collective agreements (clause 25).

In addition, it does not follow from this article that labor costs incurred in non-monetary form are normalized.

The position of the authorities

Ministry of Finance officials believe that the cost of renting housing for an employee is remuneration in kind. Therefore, in relation to this type of expenses, the restriction established by Art. 131 of the Labor Code of the Russian Federation. Recall that the named norm determines that the share of wages paid in non-monetary form cannot exceed 20% of the accrued monthly salary of an employee.

Based on the aforementioned norms of tax and labor legislation taken together, the financiers in Letter No. 03‑04‑06/44206 dated October 22, 2013 came to the following conclusion (unfortunately, disappointing for taxpayers): taxation of profits in the amount not exceeding 20% ​​of the monthly earnings of these employees, taking into account bonuses and allowances, subject to the conclusion of labor contracts with them. In the period when such an agreement has not been concluded and the employee is not on the staff of the organization, the above expenses for paying for housing cannot generally reduce the tax base for income.

Explanations similar in essence are also given in the Letter of the Ministry of Finance of Russia dated September 30, 2013 No. 03-03-06/1/40369. True, here the financiers additionally expressed their views regarding the recognition of the analyzed expenses as other expenses related to production and sales, on the basis of paragraphs. 49 paragraph 1 of Art. 264 of the Tax Code of the Russian Federation (in practice, taxpayers are often guided by this rule). Officials believe that in order to recognize the costs of renting housing for employees of an organization as part of tax expenses, one should be guided by the provisions of Art. 255 and 270 of the Tax Code of the Russian Federation, and not paragraphs. 49 paragraph 1 of Art. 264.

Why the Ministry of Finance relates the expenses of an enterprise to pay for renting an apartment for the residence of its employees specifically to non-monetary wages, it becomes clear from the explanations given in Letter No. 03-03-06/1/671 dated October 28, 2010. Literally, it says: when qualifying the amounts accrued in favor of the employee as wages, one should proceed from the fact that the amount of wages is considered established if it is possible to reliably determine from the terms of the employment contract how much wages are due to the employee for the amount of work actually performed. That is, the amount of remuneration is considered established if the employee, having not received the remuneration due under the employment contract in cash or in kind, may, based on the terms of the said contract, require the employer to pay a specific amount of money for the amount of work performed.

It turns out that it's all about the terms of the employment contract. If it not only spells out the obligation of the employer to pay rent to the employee, but also determines the amount of this payment, then this, according to officials, is enough to qualify this amount as wages in kind. Agree, a dubious argument. Indeed, in addition to directly establishing the amount of wages (or other conditions for remuneration), an employment contract may provide for payments of a different kind, for example, various compensations and incentive payments. They will have an indirect relation to the wage itself.

By the way, if financiers admit the possibility of recognizing as part of tax expenses only 20% of the cost of renting housing, then the tax authorities during inspections, referring to paragraph 4 of Art. 255 of the Tax Code of the Russian Federation, and completely deny taxpayers the right to account for these expenses. In other words, the controllers believe that the disputed costs are subject to inclusion in the remuneration only if the free provision of housing to the employee is conditioned by the requirements of the current legislation (see, for example, the Decree of the FAS MO dated 05.07.2013 in case No. A40-122173 / 12‑20‑ 621).

It would seem that with this approach, there should be no disputes about the cost of renting housing for highly qualified foreign employees. But, alas, it is not.

The employer is obliged to provide housing, but not to pay for it

Explanations on the situation with foreign specialists are given in the Letter of the Ministry of Finance of Russia dated March 19, 2013 No. 03‑03‑06 /
1/8392. Their essence is this.

If a Russian organization engages foreign citizens for work in accordance with the procedure established by the legislation of the Russian Federation, then employment contracts must be concluded with them in accordance with the requirements of the Labor Code of the Russian Federation. At the same time, the inviting party (that is, the Russian organization) in accordance with paragraph 5 of Art. 16 of Federal Law No. 115-FZ, guarantees of material, medical and housing support for a foreign citizen for the period of his stay in Russia must be provided. These guarantees are provided in the manner approved by Decree of the Government of the Russian Federation of March 24, 2003 No. 167. One of these guarantees is the obligation of the employer to provide housing for a foreign citizen in accordance with the social norm for housing area established by the state authority of the relevant subject of the Russian Federation (clause "d" Clause 3 of the Order).

Based on the foregoing, the Ministry of Finance came to the conclusion that the organization is obliged only to provide, but not to pay for housing to foreign citizens - employees of the organization.

What follows from this, according to officials? And the fact that the cost of renting housing for such an employee is not subject to paragraph 4 of Art. 255 of the Tax Code of the Russian Federation. Therefore, if the employer assumes the obligation to pay the rent of a foreigner's housing, then he does it of his own free will. Therefore, in this case, when recognizing these costs for tax purposes, the same approach is applied as in relation to Russian employees. That is, the cost of paying for housing to employees of the organization - citizens of foreign countries can be taken into account as expenses when calculating income tax in an amount not exceeding 20% ​​of the accrued monthly salary, subject to the conclusion of an employment contract.

However, in this case, the financiers demonstrate a rather strange logic. What does “only provide, but do not pay” mean? If the company owns residential premises (apartments, houses), then there are no problems with fulfilling the obligation to provide housing for a foreign employee. But how should the employer fulfill this obligation in the absence of such property. The only possible way to provide housing (thus fulfilling the requirement of the law) is to rent housing for a foreign worker, that is, temporarily use the property of the landlord, of course, for a fee (Article 606 of the Civil Code of the Russian Federation).

Preliminary results

An organization that pays rental housing for out-of-town or foreign workers may face the following tax risks:

– tax officials may consider such expenses unreasonable and exclude them from the calculation of the taxable base for income tax;

- tax authorities will allow to take into account only 20% of the accrued monthly salary of an employee when taxing profits.

Unfortunately, the organization will not be able to avoid these risks. But to defend their interests in court is quite. In arbitration practice, there are examples of positive decisions on disputes that have arisen in similar situations.

Arguments in the event of a dispute

Here are some examples of court decisions on the analyzed issue.

The reason for the dispute considered in the Decree of the Arbitration Court of the Moscow Region dated 01.10.2015 No. F05-11410/2015 in case No. A40-6591/15 was the following circumstances. The organization, in accordance with the terms of employment contracts, provided foreign specialists - citizens of France with free housing. The company included the payment for housing rent in full in tax expenses on the basis of paragraph 4 of Art. 255 of the Tax Code of the Russian Federation.

Based on the results of the inspection, the inspection came to the conclusion that the organization was only obliged to provide, but not to pay, housing for foreign citizens - employees of the organization. Therefore, the inspectors excluded from the composition of expenses a part of the cost of renting residential premises for these persons in an amount exceeding 20% ​​of their wages. The result is an additional accrual of only one income tax (without the corresponding penalties) in the amount of 8.9 million rubles.

The arbitrators, recognizing the arguments of the inspectors as unfounded, indicated the following:

1. The legislation does not establish any restrictions on the provision of rental housing to foreign employees. The Company has the right to conclude contracts for the commercial rental of residential premises and then provide these premises for use by its foreign employees. Moreover, the organization bears expenses in the form of rent in accordance with the requirements of the migration legislation of the Russian Federation, as well as in order to ensure that foreign employees can fulfill their direct labor duties.

2. The costs of renting accommodation for foreign employees comply with the provisions of art. 255 of the Tax Code of the Russian Federation are economically justified and documented. In any case, these costs could be taken into account by the company as part of labor costs on the basis of paragraph 25 of Art. 255 of the Tax Code of the Russian Federation (as other types of expenses incurred in favor of the employee, provided for by labor and (or) collective agreements) or among other production expenses in accordance with paragraphs. 49 paragraph 1 of Art. 264 of the Tax Code of the Russian Federation (as other documented and economically justified expenses incurred to ensure the activities of the organization).

3. The 20% limit established for earnings in non-monetary form (Article 131 of the Labor Code of the Russian Federation) does not apply to the costs of renting residential premises. The organization's expenses for renting accommodation for foreign employees are not part of the salary. It includes remuneration for work, compensation and incentive payments. Expenses for the maintenance of employees (including those related to renting housing for them) are not included in wages. This means that when calculating income tax, the cost of renting apartments for foreign workers is taken into account in full.

The fact that the company rented housing and provided it to foreign specialists in pursuance of the norms of the Federal Law No. 115-FZ, and therefore it could not arbitrarily refuse to comply with the requirements of the current legislation, is also noted in the Decree of the FAS SZO dated 11.04.2014 No. F07-1987 / 2014 in case No. А56-18767/2013. As the arbitrators emphasized, the company's expenses for paying for the rent of an apartment for an invited specialist follow from the actual common will of the parties to the staffing agreement, and this circumstance should be taken into account when assessing the consequences of the agreement, in particular, tax.

In disputes when enterprises rent residential premises for employees who are Russian citizens, the arbitrators also proceed from the fact that the decision to charge additional income tax on the episode of overstating the costs of paying employees housing is based on an incorrect interpretation and application of Art. 131 of the Labor Code of the Russian Federation. According to the judges, the established 20% limit on payments in non-monetary form applies only to the wages of employees and is not subject to other payments in their favor, which, among other things, include payment for the rental of residential premises (see Decree of the Arbitration Court of the Moscow Region dated 12.09. 2014 No. F05-9828/14 in case No. A40-9805/14).

Example

The organization invited a highly qualified specialist - a foreign citizen. Under the terms of the employment contract concluded with him, the foreigner was provided with an apartment for living, the rent of which was paid by the organization. The monthly rent is 25,000 rubles, which does not exceed 20% of the monthly salary of this specialist. How to reflect in the organization's accounting expenses for renting an apartment?

If the organization adheres to the official approach of the regulatory authorities, then on a monthly basis it will make the following entries in accounting:

- Debit 20 (26, 44) Credit 70 - reflects the cost of remuneration of a foreign worker;

- Debit 70 Credit 76 - reflects the cost of rent, which is paid for the employee, on account of wages.

In tax accounting, the indicated amount of rent on the basis of clause 25 of Art. 255 of the Tax Code of the Russian Federation will be included in the cost of wages in full.

But there is an alternative option for recognizing the indicated expenses (supported by the judges):

- Debit 76 Credit 51 - the rent for the apartment was transferred;

– Debit 91-2 Credit 76 – lease payment included in other expenses.

For tax purposes, the specified amount of rent on the basis of paragraphs. 49 paragraph 1 of Art. 264 of the Tax Code of the Russian Federation is included in other expenses associated with production and sales.

Let's summarize what has been said. The organization has the right to rent residential premises for its employees (both Russian and foreign citizens). Officials of regulatory authorities believe that for the purposes of taxation of profits, the amount of rent can be recognized as part of the cost of wages under paragraph 4 of Art. 255 of the Tax Code of the Russian Federation - in an amount not exceeding 20% ​​of the accrued wages for such employees. Following such a position is unlikely to cause claims from the tax authorities. But the inclusion of rent in the composition of tax expenses in full in accordance with paragraph 25 of Art. 255 or para. 49 paragraph 1 of Art. 264 of the Tax Code of the Russian Federation is associated with tax risks and, most likely, will lead to a dispute with inspectors.

In accordance with paragraph 29 of Art. 270 of the Tax Code of the Russian Federation for the purposes of taxation of profits, in particular, the expenses of the organization for paying for goods for the personal consumption of employees, as well as other similar expenses incurred in favor of employees, are not taken into account.

Federal Law No. 115-FZ of July 25, 2002 “On the Legal Status of Foreign Citizens in the Russian Federation”.

We thank the accountant Svetlana Kostyrenko(Republic of Komi, Usinsk) for the proposed topic of the article.

The leaders of organizations have been complaining about the shortage of qualified employees for years. So we have to "write out" workers from other regions and from abroad. And sometimes also provide them with housing, for which employers rent apartments or rooms. Let's talk about how to take into account the rental of housing for an employee or the reimbursement of his expenses for renting housing for tax purposes.

The organization pays the rent directly to the owner of the property

Two approaches are possible here.

APPROACH 1 (safe, but not the most profitable)

Regulatory authorities believe that the cost of rent is payment in kind, which forms the income of the employee. Therefore, the obligation to provide the employee with housing should be spelled out in the employment contract with him.

WARNING THE MANAGER

If the lease agreement with the landlord will be concluded for a year or more, then it will need to be registered with the Ros-re-estr a paragraph 2 of Art. 651 of the Civil Code of the Russian Federation.

At the same time, in accordance with the Labor Code of the Russian Federation, the part of remuneration paid in kind cannot exceed 20% of the salary of an employee. Art. 131 of the Labor Code of the Russian Federation. And according to the Ministry of Finance, of all the expenses for renting an apartment in "profitable" expenses the company can recognize as labor costs only the amount that does not exceed the specified limit Art. 255 of the Tax Code of the Russian Federation; Letters of the Ministry of Finance No. 03-03-06/1/8392 dated March 19, 2013, No. 03-03-06/1/216 dated May 2, 2012, No. 03-03-06/1/671 dated October 28, 2010, dated January 17. 2011 No. 03-04-06/6-1.

Although once the court recognized that such expenses can be taken into account for tax purposes in full. The Federal Antimonopoly Service of the Central District pointed out that the expenses were aimed at ensuring the production process, and without them, employees invited from afar would not be able to fulfill their labor duties. He also noted that the norms of the Labor Code cannot regulate tax relations and the argument about a 20% limitation is unlawful. After all, the list of expenses in favor of the employee, which can be taken into account when calculating income tax, is open m Decree of the FAS Central Organ of September 29, 2010 No. A23-5464 / 2009A-14-233.

An employee's income in the form of rent paid for him/her should be taxed NDF L sub. 1 p. 2 art. 211 of the Tax Code of the Russian Federation; paragraph 2 Letters of the Ministry of Finance dated 09/07/2012 No. 03-04-06 / 8-272; Letter of the Ministry of Finance dated 05.07.2013 No. 03-04-06/25983. Therefore, tax will have to be withheld from the employee's cash income. pp. 1, 2 art. 226 Tax Code of the Russian Federation.

Do not forget that by paying rent directly to the owner of housing, who is an individual - non-entrepreneur, your company in any case becomes a tax agent in relation to income received by the landlord, therefore, it must withhold personal income tax from them paragraph 5 of Art. 3, paragraphs. 1, 4 art. 226, sub. 1 p. 1, p. 2 Art. 227 of the Tax Code of the Russian Federation; Letter of the Ministry of Finance dated April 29, 2011 No. 03-04-05 / 3-314.

Also, the amount of the rent will need to be included in the base for insurance premiums. Since it forms the "natural" income of the employee received by him in the framework of labor relations Part 1 Art. 7 of the Law No. 212-FZ of July 24, 2009 (hereinafter - Law No. 212-FZ).

Concerning accounting, then to reflect transactions related to rental housing, it will be necessary to make the following postings.

But of course, approach 1 is very ambiguous. And if you are ready to defend your opinion before the regulatory authorities, study approach 2.

Its essence lies in the fact that the cost of renting an apartment is not the remuneration of an employee. But despite this, such costs are justified and economically justified. Without them, the employer will not be able to organize the production process normally.

Then for income tax purposes it is possible to take into account expenses in the form of rent in full as part of other expenses in sub. 10, 49 p. 1 art. 264 of the Tax Code of the Russian Federation; Decree of the FAS Central Organ of February 15, 2012 No. A35-1939 / 2010.

The employee has no income, and personal income tax you don't have to hold on to it. This point of view is also supported by the courts. clause 2 of the Decree of the FAS ZSO dated 09/02/2011 No. A70-10656 / 2010; Decree of the FAS MO dated March 21, 2011 No. КА-А40/1449-11. At the same time, the court once noted that such lease payments are made in the interests of the organization and are not related to the wage system. Decree of the FAS UO dated 06/08/2012 No. Ф09-3304 / 12.

Insurance premiums it is not necessary to accrue everything for the same reason: providing an employee with housing is not a remuneration for work.

CONCLUSION

If you don’t like arguing with the tax authorities and you are not ready to apply approach 2, then it will be easier for you to increase the employee’s salary by the amount of the lease payment. And let him pay for his rented accommodation. Of course, personal income tax and insurance premiums will have to be withheld from this amount, but there will be no problems with recognizing it as “profitable” expenses.

The organization reimburses the employee for rent

In order to prove the reasonableness of the reimbursement costs, you must have:

• a copy of the lease agreement between the employee and the landlord;
• copies of payment documents for rent for housing (for example, receipts from the landlord for receiving money).

In addition, the obligation to reimburse the employee for rental expenses must be specified in the employment contract with him.

In such a situation, there are also two approaches to how this should be reflected in tax accounting.

APPROACH 1 (safe but disadvantageous)

It lies in the fact that such compensation is not compensation that the employer is obliged to provide to the employee under the Labor Code. So, all this is the “charity” of the organization in favor of the employee.

WARNING THE MANAGER

Even the organization will reimburse the employee for the cost of renting housing in accordance with the employment contract, tax authorities can exclude these amounts from "profitable" expenses. Therefore, it is safer to rent premises yourself to provide workers with housing.

Then the rental costs reimbursed to the employee cannot be taken into account in reducing the base for income tax paragraph 29 of Art. 270 of the Tax Code of the Russian Federation; paragraph 1 Letters of the Ministry of Finance dated March 17, 2009 No. 03-03-06 / 1/155; Clause 2 Letters of the Federal Tax Service dated January 12, 2009 No. BE-22-3 / [email protected] .

The refund must be subject to personal income tax, since such compensation is not named among the tax-free payments Letter of the Ministry of Finance dated May 15, 2013 No. 03-03-06/1/16789.

Insurance premiums the amount of compensation will have to be accrued, since it is paid within the framework of an employment relationship Part 1 Art. 7 of Law No. 212-FZ; paragraph 1 of Art. 20.1 of the Law of July 24, 1998 No. 125-FZ; FSS letter dated 11/17/2011 No. 14-03-11 / 08-13985; p. 3 Letters of the Ministry of Health and Social Development dated 05.08.2010 No. 2519-19. Once the court came to this conclusion, supporting the FSS Decree 16 of the AAC dated February 6, 2013 No. A63-13026 / 2012.

IN accounting there will be the following lines.

APPROACH 2 (risk but rewarding)

It is the opposite of the previous approach: reimbursement for rental housing costs is a statutory compensation. After all, in accordance with the Labor Code of the Russian Federation, when an employee moves to another locality, in agreement with the employer, the latter must provide the employee with a lift within the limits established by the contract. Moreover, the employment contract must be concluded before moving the employee to the place of work Art. 169 of the Labor Code of the Russian Federation.

Since the reimbursement of rental housing costs is part of the lifting costs, it is taken into account when calculating income tax among other expenses sub. 5 p. 1 art. 264 Tax Code of the Russian Federation.

Compensations related to the relocation of an employee to another area are not taxed NDF L paragraph 3 of Art. 217 Tax Code of the Russian Federation.

Insurance premiums it is not necessary to accrue, since such compensation is indicated among the non-contributory payments sub. "and" p. 2 h. 1 art. 9 of Law No. 212-FZ; sub. 2 p. 1 art. 20.2 of the Law of July 24, 1998 No. 125-FZ; articles 164, 165, 169 of the Labor Code of the Russian Federation. And once the court agreed with this Decree 13 of the AAC of 07.05.2013 No. A21-10270 / 2012.

At the same time, it is important to understand: the legislation does not say that the employer is obliged to pay the employee, among other things, the lifting and housing. Therefore, the regulatory authorities will certainly not agree that the rent reimbursed to the employee for several months or even years is lifting, provided for by labor legislation. Accordingly, disputes with tax authorities when applying approach 2 are very likely.

Almost a third of the interviewed applicants (29%) have at least once received an offer from potential employers to move to another locality. This means that relocation is becoming an increasingly common practice in the labor market.

The law provides for compensation for paying for housing as a measure of social support for the poor, as well as socially vulnerable and privileged categories of citizens. Citizens who have registered with the social protection department can apply for a monthly reimbursement of expenses, confirming their right with documents. In addition, employees of enterprises and military personnel who are on a business trip or work on a permanent basis from their organization and at the same time rent housing can count on housing costs.

Social payments for housing are established by federal legislation and local governments in the region. Payment is made according to the employment contract and service instructions. In both cases, reimbursement of expenses is made in accordance with the establishing documents, checked by the department of social protection or the accounting department of the enterprise (part). Payments are made after the establishment of actual costs, in some cases (business trip) they can be provided in advance, with subsequent reporting.

Social reimbursement for housing costs

In 2010, there was a monetization of a preferential discount on housing payments provided to various categories of citizens. Monthly cash compensation (CBC) is individual for each beneficiary, calculated according to the receipts submitted to the social protection department for the past month. If earlier the benefit was averaged and determined by a single amount for all citizens, then at present, after the submission of documents confirming the right, a monthly recalculation is made taking into account the paid utilities and the cost of hiring.

The ABC depends on the annual indexation at the regional level, which is carried out for the next financial year. Indexation depends on budget allocations, may vary depending on the region. If there are several people in the family who have a preferential category, then their subsidies add up, but cannot exceed half of the rent.

In many cases, the rent varies significantly during the heating season and without heating. Accordingly, a recalculation is carried out and it happens that in the summer period the EBC is not allowed, and a large subsidy is obtained for heating. Such fluctuations in payments do not require special treatment and writing an application.

In addition to compensation for paying housing to preferential categories, social protection is included in the scope of social protection. If a family pays for housing and communal services in the amount of 22% of the total income, then it has the right to social support, Art. 159 ZhK RF. You can calculate the possibility of obtaining a subsidy by contacting the department of social protection and providing documents on the ownership of the apartment, a work book, a certificate of income, family composition and a paid receipt for the last month.

If there is a rent arrears, then you cannot count on a subsidy. It is required to confirm the right to receive a subsidy once every six months; missing the last renewal date will lead to a re-application with the entire package of documents. Receiving an EBC and a subsidy do not exclude each other, if a citizen is entitled to both benefits for housing, then he has the right to receive both. The amount accrued under both forms of social support is included in the income for the calculation for the next month.

Employee Housing: Reimbursement

At the conclusion between the employee and the administration of the enterprise, a clause on reimbursement of housing costs may be introduced. Most often, this position involves working on long business trips or in a branch of the organization. Compensation is also provided for military personnel and their families if they rent housing. The contract must contain an exact indication of the possible surcharge, the type of proposed real estate and the conditions for fulfilling obligations.

The return of the funds spent depends on the form of payment for the premises, but there must be a lease agreement between the landlord and the organization. By agreement, funds are transferred before the start of the billing month or through regular transfers to the employee's bank account. An employee can settle accounts with the owner of the living space, and then receive the agreed amount in his account along with wages.

Art. 19 of the Labor Code of the Russian Federation allows you to include in the employment contract the possible amount of compensation for housing funds, as well as change it if necessary. The amount of the payment depends on many factors, for example, whether the family lives with the employee, the duration of the business trip or permanent work, the comfort of living conditions. According to the Labor Code of the Russian Federation, in the event of early termination of the housing contract due to the fault of the employee, he is liable and cannot count on reimbursement of housing expenses.

The rented living quarters will be transferred to the use of employees under the act of acceptance and transfer. Employees are not charged for accommodation. Employees pay utility bills on their own.

Question

Answer

In accordance with Art. 169 of the Labor Code of the Russian Federation, when an employee moves, by prior agreement with the employer, to work in another locality, the employer is obliged to reimburse the employee for the following expenses:

• for the relocation of the employee, members of his family and the transportation of property (except for cases when the employer provides the employee with appropriate means of transportation);
• settling in a new place of residence.

According to first approach, the costs of paying for the employee's accommodation during the entire period of work in another locality fall under the concept of compensation enshrined in Art. 169 of the Labor Code of the Russian Federation.

According to second According to the approach, accommodation means living expenses for an employee and his family only in the period immediately following the move. Thus, Decree of the Government of the Russian Federation of April 2, 2003 No. 187, which establishes the amount of reimbursement by organizations financed from the federal budget, expenses to employees in connection with their relocation to work in another area, provides for only a one-time payment as compensation for the costs of arranging . The cost of living for an employee in a new place is not compensated.

From these approaches to the definition of the concept of “arrangement”, two approaches follow to determine the legal nature of the costs of providing housing for workers who have moved to another area for the entire period of residence in a new place.

Labor legislation uses the concept of "compensation" in different situations and gives it different meanings. Thus, the Labor Code of the Russian Federation considers compensation payments as:

• an integral part of wages (employee wages) - for example, additional payments and allowances for work in conditions that deviate from normal, work in special climatic conditions and in territories exposed to radioactive contamination, and other compensation payments (Article 129 of the Labor Code of the Russian Federation).
• a cash payment established for the purpose of reimbursement to employees of costs associated with the performance by them of labor or other duties provided for by the Labor Code of the Russian Federation and other federal laws (Article 164 of the Labor Code of the Russian Federation).

Providing workers with housing depends only on the occurrence of a certain event - the move. The obligation of the Company to provide housing does not depend on the labor contribution of the employee, the results of his work, and therefore is not of a stimulating nature.

Article 169 of the Labor Code of the Russian Federation was amended, which entered into force on April 2, 2014. This rule was supplemented by part 4, according to which the procedure and amount of reimbursement of expenses when moving to work in another area for employees of other employers (non-budgetary sphere) are determined by the collective agreement or local normative act or by agreement of the parties to the employment contract. In our opinion, this innovation expands the list of expenses to be reimbursed upon relocation, and makes it possible to include all expenses named in the collective agreement or local regulatory act, the reimbursement of which is due to the need to move the employee to another locality, as expenses for arrangement.

Thus, employers have been given the right to fix the procedure and amount of reimbursement for moving expenses in a collective agreement or a local regulatory act.

Due to the fact that the obligation to provide housing when employees move is established by the Company in a local regulatory act, we believe that the Company has every reason to consider the operation of providing housing as compensation under Art. 169 of the Labor Code of the Russian Federation, i.e. as a reimbursement for the employee's expenses for the arrangement.

The second approach to qualification: the provision of housing is part of the salary. Payment for housing of a nonresident employee during the entire period of his stay at work in another locality is not directly provided for in the Labor Code of the Russian Federation.

Since housing payments after the initial period after the move are made on a regular basis, they are not in the nature of reimbursement of atypical costs, but are a supplement to the wages of employees living in a certain area.

By virtue of Art. 131 of the Labor Code of the Russian Federation, in accordance with a collective agreement or an employment contract, upon a written application of an employee, remuneration can be made in other forms than cash, which do not contradict the legislation of the Russian Federation and international treaties of the Russian Federation.

Thus, providing workers with housing when moving to another locality represents payment in kind.

Let us consider the procedure for taxation and imposition of insurance premiums on operations to provide housing for employees when moving to another locality, depending on the above approaches to their qualifications for the purposes of labor legislation.

Provision of housing is compensation (guarantee)

Compensation (guarantees) provided by the employer to employees in accordance with labor legislation can be accounted for both as part of other expenses for tax purposes and as part of labor costs.

The first option: other expenses. According to sub. 5 p. 1 art. 264 of the Tax Code of the Russian Federation, other expenses related to production and sale include, in particular, the amounts of paid lifting fees within the limits established in accordance with the legislation of the Russian Federation. For organizations not financed from the federal budget, the norms of lifting are not established by the legislation of the Russian Federation.

According to the regulatory authorities, the taxpayer's expenses related to the compensation of the employee's expenses for settling in a new place of residence when he is transferred to work in another area represent the amount of lifting.

Thus, the Federal Tax Service of Russia for Moscow, in a letter dated February 18, 2008 No. 20-12 / 015139, came to the conclusion that, in accordance with Chapter 25 of the Tax Code of the Russian Federation, lifting means compensation by the employer to the employee of expenses, including, among other things, expenses for relocation of an employee to work in another area, as well as to settle in a new place of residence.

The Ministry of Finance of Russia, in a letter dated February 13, 2012 No. 03-04-06 / 6-35, also indicated that the costs of reimbursement of expenses associated with moving an employee to work in another locality, provided for in Art. 169 of the Labor Code of the Russian Federation, for the purposes of taxation, the profits of an organization can be taken into account as part of other expenses associated with production and sales, on the basis of subpara. 5 p. 1 art. 264 of the Tax Code of the Russian Federation.

Similar conclusions are contained in the letters of the Ministry of Finance of Russia dated November 18, 2014 No. 03-04-06 / 58173, dated November 23, 2011 No. 03-03-06 / 1/773, dated January 17, 2011 No. 03-04-06 /6-1.

However, these clarifications do not contain a specific list of costs included in the cost of development. It follows from the foregoing that the provision of housing in another locality during the entire period of the employee's performance of official duties can be considered as lifting (expenses for arrangement) and included in other expenses related to production and sales.

Arbitration practice in relation to accounting as lifting expenses related to the provision of housing for employees when moving to another locality is represented by a single arbitration case.

The Federal Antimonopoly Service of the Urals District, in Resolution No. F09-11484 / 06-C2 dated January 9, 2007, recognized as reasonable the accounting as part of expenses on the basis of sub. 5 p. 1 art. 264 of the Tax Code of the Russian Federation expenses for paying for the employee's accommodation in another locality.

The second approach is labor costs. As follows from Art. 255 of the Tax Code of the Russian Federation, the taxpayer's labor costs include any accruals to employees in cash and (or) in kind, incentive accruals and allowances, compensatory accruals related to the mode of work or working conditions, bonuses and one-time incentive accruals, expenses related to maintenance these employees, provided for by the norms of the legislation of the Russian Federation, labor agreements (contracts) and (or) collective agreements.

The literal interpretation of this norm allows us to say that the legislator has established a procedure according to which any accruals in kind (without any restrictions) are included in the expenses, if such accruals are provided for by labor contracts. The list of payments is open (clause 25, article 255 of the Tax Code of the Russian Federation).

Chapter 25 of the Tax Code of the Russian Federation does not contain any conditions restricting the taxpayer in recognizing for the purposes of taxation payments to personnel in kind, if they are provided for by an employment contract. Therefore, if the living expenses not only during the period of settlement, but also for the entire period of work of the employee are provided for by a local regulatory act, which is referred to in the employment contract, and at the same time they meet the criteria of economic justification and are aimed at generating income for the Company (Article 252 Tax Code), such expenses may reduce taxable income.

According to the authorities, in order to be included in income tax expenses, payment for an employee’s housing should be considered not as compensation for expenses incurred by the employee in the interests of the employer (Article 169 of the Labor Code of the Russian Federation), but as an integral part of the employee’s remuneration, carried out in kind (Article 131 of the Labor Code of the Russian Federation).

So, according to the joint letter of the Ministry of Finance of Russia and the Federal Tax Service of Russia dated January 12, 2009 No. BE-22-3 / 6 @, if payment for housing for non-resident workers is provided for in the employment contract and its specific amount is stipulated, then such a payment can be considered as a component part of wages paid in non-monetary form. Based on the foregoing, if the provision of an apartment for the employee to live is a condition of the employment contract and is considered by the parties as the obligation of the employer to pay part of the salary in non-monetary form (with a specific definition of the amount of this part), then such expenses should be taken into account for the purposes of taxation of profits as part of the expenses for wages.

Please note: there are a number of letters from the Ministry of Finance of Russia, in which, with reference to Art. 131 of the Labor Code of the Russian Federation, it is concluded that the costs of paying for housing to employees of an organization can be taken into account as expenses for the purposes of taxing the profits of organizations in an amount not exceeding 20% ​​of the accrued monthly wages (letters dated October 22, 2013 No. 03-04-06 /44206, dated September 30, 2013 No. 03-03-06/1/40369).

In our opinion, this position is contrary to the law. The ban on the payment of wages in non-monetary form in excess of 20% is established by labor legislation (Article 131 of the Labor Code of the Russian Federation) and is aimed at providing state guarantees for employees - to prevent payment in kind by the employer's products (Article 130 of the Labor Code of the Russian Federation). However, the tax legislation does not contain any standards regarding the attribution to expenses of labor costs that are made in kind, which is also confirmed by arbitration practice.

In particular, the Federal Antimonopoly Service of the Central District, in its Decree dated September 29, 2010 in case No. A23-5464 / 2009A / 14-233, declared the reference of the tax authority to Art. 131 of the Labor Code of the Russian Federation, since the article in question of the Labor Code of the Russian Federation cannot regulate tax legal relations and establish any restrictions in relation to them.

As can be seen, both proposed options for tax accounting of the Company's expenses allow them to be attributed to a decrease in the tax base for income tax.

The use of the first option, according to which the payment for renting an apartment is included in other expenses, entails the risk of a dispute with the tax authority regarding the qualification of the entire amount of the expense, since according to the official position, the expenses in question are wages. As indicated by the Ministry of Finance of Russia in a letter dated September 30, 2013 No. 03-03-06 / 1 / 40369, “as regards the possibility of applying paragraphs. 49 paragraph 1 of Art. 264 of the Code (on other costs associated with production and sales) in order to recognize the above costs of the organization as part of the costs taken into account when forming the tax base for corporate income tax, it should be borne in mind that the procedure for accounting for these costs is regulated by Art. Art. 255 and 270 of the Tax Code of the Russian Federation.

The second option, according to which the payment for the employee's accommodation in another location is considered as labor costs, is in line with the explanations of the regulatory authorities. However, a dispute is possible with the tax authority regarding the accounting for tax purposes of the amount of expenses for rental housing in excess of 20% of the amount of wages.

VAT.

In this regard, the question arises as to whether the provision of housing to employees is a gratuitous sale, i.e. subject to VAT.

As stated in paragraph 13 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 30, 2014 No. 33 “On some issues arising from arbitration courts when considering cases related to the collection of value added tax”, operations for the free provision by the taxpayer of their guarantees and compensations in kind provided for by labor legislation (for example, in the presence of harmful and (or) dangerous working conditions).

Arbitration practice at the district level also confirms that the provision of housing to employees in cases where such an obligation is established by labor legislation is not subject to VAT.

Thus, the Federal Antimonopoly Service of the North-Western District, in its Decree dated September 13, 2010 in case No. A26-12427 / 2009, indicated that the free provision of residential premises and bed linen for temporary use related to the performance of labor duties is not a free transfer of any of these premises , nor such underwear and, accordingly, the object of taxation, provided for in Art. 146 of the Tax Code of the Russian Federation does not arise in this case.

Due to the fact that, according to the approach under consideration, the provision of housing is compensation provided on the basis of Art. 169 of the Labor Code of the Russian Federation, we believe that the transfer of residential premises to employees for use is not subject to VAT.

personal income tax. According to paragraph 3 of Art. 217 of the Tax Code of the Russian Federation are not subject to taxation (exempted from taxation) all types of compensation payments established by the current legislation of the Russian Federation, legislative acts of the constituent entities of the Russian Federation, decisions of representative bodies of local self-government related to the performance of labor duties by the taxpayer (including moving to work in another locality and reimbursement of travel expenses) .

Because Art. 169 of the Labor Code of the Russian Federation in the new edition allows you to independently determine in the local regulatory act the procedure and amount of reimbursement of expenses upon moving, the employer has the right to include in such compensation, including the costs of paying for accommodation.

An analysis of arbitration practice shows that the courts, subject to proper documentary consolidation of the obligation of the employer to pay the cost of living for an employee when he is transferred to work in another locality, consider this payment as compensation exempt from personal income tax.

For example, the Federal Antimonopoly Service of the East Siberian District, in its Resolution of September 11, 2013 in case No. A19-2330 / 2013, recognizing the additional assessment of personal income tax to a taxpayer as unlawful, indicated that residential lease agreements were concluded for the purpose of carrying out the taxpayer’s economic activities, for the possibility of hiring a manager and Deputy Director for organizing the activities of the taxpayer in the city of Angarsk; payments made by the taxpayer to landlords of residential premises are related to the performance by nonresident employees of their official duties stipulated by the terms of employment contracts, are not related to the wage system and are made in the interests of the taxpayer himself as an employer; payment for the rental of residential premises was made by the taxpayer directly to the lessors of residential premises; these costs are attributed by the taxpayer to general business expenses, they were not included in the wage fund; at the same time, compensation payments were provided for by the terms of labor contracts concluded with employees.

Similar conclusions are contained in the Resolutions of the Federal Antimonopoly Service of the North-Western District of August 28, 2014 in case No. А56-50900/2013, the Federal Antimonopoly Service of the Far Eastern District of January 25, 2013 No. F03-5923/2012, the Federal Antimonopoly Service of the Urals District of June 8, 2012. No. Ф09-3304/12, Federal Antimonopoly Service of the West Siberian District dated September 2, 2011 in case No. А70-10656/2010, dated November 17, 2010 in case No. А45-26455/2009, Federal Antimonopoly Service of the Moscow District dated March 21, 2011 No. КА-А40/1449-11.

It follows from the foregoing that if we consider the provision of housing to an employee who has moved to another locality as an operation carried out solely in the interests of the employer, then it represents compensation and is not subject to personal income tax.

In order to apply the analyzed approach to the taxation of personal income tax on these payments, we recommend that employment contracts with employees include references to the relevant local regulatory act or an indication that when moving, expenses are reimbursed in accordance with the Company's local regulations.

Insurance premiums. According to paragraph 1 of Art. 7 of the Federal Law of July 24, 2009 No. 212-FZ “On insurance contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund”, payments and other remuneration accrued by payers of insurance premiums in favor of individuals within the framework of labor relations.

At the same time, according to sub. "and" paragraph 2 of Art. 9 of Law No. 212-FZ, payments related to the performance of labor duties by an individual, including in connection with moving to work in another locality, are not subject to insurance premiums.

An analysis of arbitration practice shows that if the obligation of the employer to provide non-resident employees with housing is properly documented, then the provision of housing is compensation within the meaning of Art. 169 of the Labor Code of the Russian Federation and is not subject to insurance premiums.

Thus, the Supreme Arbitration Court of the Russian Federation, in Ruling No. 301-KG14-6974 dated January 23, 2015, found that there was no violation of substantive law by lower courts when recognizing as compensation for the expenses of an employee for self-hiring housing when moving to another locality, the obligation to compensate for which is due to Art. 169 of the Labor Code of the Russian Federation lies with the employer. At the same time, the courts pointed out that the disputed payments are not stimulating, do not depend on the qualifications of employees, the complexity, quality, quantity and conditions of the work itself, and are not intended to compensate for the costs caused by the implementation of labor duties in accordance with a specific labor function.

The 20th AAS in its Resolution dated March 29, 2013 in case No. А68-7790/2012 (upheld by the cassation instance) concluded that the payment for the accommodation of employees from other cities in the provided housing is directly related to the performance by employees of their labor duties and, in essence, is compensation payment within the meaning of Art. 164 of the Labor Code of the Russian Federation, in connection with which it is not subject to insurance premiums.

Similar conclusions were made in the Ruling of the Supreme Court of the Russian Federation of August 27, 2014 in case No. 309-ES14-82, Resolutions of the Federal Antimonopoly Service of the Urals District of December 17, 2014 No. F09-7555 / 14, of November 5, 2014 No. F09-7365 / 14, Federal Antimonopoly Service of the Northwestern District of August 28, 2014 in case No. А56-50900/2013.

Thus, the operation of providing housing to employees who have moved to another area is not subject to insurance premiums.

Housing is part of the salary

As mentioned earlier, Chapter 25 of the Tax Code of the Russian Federation does not contain any conditions restricting the taxpayer in recognizing the costs of payments to personnel in kind, if they are provided for by an employment contract and (or) a collective agreement.

At the same time, the expense in favor of the employee is considered to be provided for by the employment contract, including when the employment contract contains a reference to a local regulatory act establishing the relevant payments (see, for example, letter of the Ministry of Finance of Russia dated September 22, 2010 No. 03-03-06 / 1 /606).

Therefore, if the living expenses not only during the settling period, but also for the entire period of the employee’s work are provided for by the employment contract and at the same time they meet the criteria of economic justification and are aimed at generating income for the Company (Article 252 of the Tax Code of the Russian Federation), then such expenses may reduce the taxable profit.

VAT. In accordance with sub. 1 p. 1 art. 146 of the Tax Code of the Russian Federation for the purpose of taxing VAT, the transfer of ownership of goods, the results of work performed, the provision of services free of charge are recognized as the sale of goods (works, services).

At the same time, according to paragraph 2 of Art. 154 of the Tax Code of the Russian Federation when transferring goods (results of work performed, rendering services) when paying for labor in kind, the tax base is determined as the cost of these goods (works, services), calculated on the basis of prices determined in the manner similar to that provided for in Art. 105 3 of the Tax Code of the Russian Federation.

Thus, if we consider operations for the provision of housing to employees as remuneration in kind, then, guided by sub. 1 p. 1 art. 146, paragraph 2 of Art. 154 of the Tax Code of the Russian Federation, it is necessary to charge VAT on the cost of the rights to use housing.

Supervisory authorities also believe that remuneration in kind is subject to VAT (see letter of the Federal Tax Service of Russia for Moscow dated March 3, 2010 No. 16-15/22410).

However, we note that arbitration practice regarding the need to charge VAT on wages in kind is contradictory.

According to a number of courts, remuneration is carried out within the framework of labor relations, is not a gratuitous sale and, therefore, an object of VAT (see, for example, Resolutions of the Federal Antimonopoly Service of the Urals District dated September 25, 2012 No. F09-8684 / 12, dated February 18 2011 No. F09-11558 / 10-S2, Federal Antimonopoly Service of the Moscow District dated December 15, 2009 No. KA-A40 / 13201-09).

However, there are cases in which arbitration courts found it lawful to charge additional VAT when paying wages in kind (see the Decree of the Federal Antimonopoly Service of the Volga District of March 1, 2007 in case No. A65-15982 / 2006).

In our opinion, a more reasonable position is that when wages are paid in kind, VAT is subject to accrual.

Despite the fact that the payment of wages is carried out within the framework of labor relations, this operation is the transfer of goods (works, services) for the personal needs of the employee. Consequently, the will of the employer is aimed at the transfer of goods (works, services), and not at providing the labor process with the necessary resources.

personal income tax. According to paragraph 1 of Art. 210 of the Tax Code of the Russian Federation, when determining the tax base for personal income tax, all income of the taxpayer received by him both in cash and in kind or the right to dispose of which he has arisen, as well as income in the form of material benefits, determined in accordance with Art. 212 of the Tax Code of the Russian Federation.

At the same time, income received in kind includes wages in kind (subclause 3, clause 2, article 211 of the Tax Code of the Russian Federation).

According to the Ministry of Finance of Russia (letter dated August 26, 2013 No. 03-04-06 / 34883), payment by an organization for renting an apartment for an employee is recognized as his income received in kind and subject to personal income tax.

A similar position is stated in the letters of the Ministry of Finance of Russia dated January 17, 2011 No. 03-04-06 / 6-1, dated June 11, 2010 No. 03-04-06 / 6-118, dated July 13, 2009 No. 03- 04-06-01/165, December 17, 2008 No. 03-03-06/1/688, July 20, 2007 No. 03-04-06-01/255, May 30, 2007 No. 03 -04-06-01/165.

Thus, when qualifying an operation to provide housing as payment in kind, personal income tax is subject to withholding from the taxpayer's income.

Insurance premiums. If the provision of housing when moving is considered as payment in kind, then such an operation will be subject to insurance premiums in the generally established manner as wages.

This point of view is the official position of the regulatory authorities. So, in paragraph 3 of the letter of the Ministry of Health and Social Development of Russia dated August 5, 2010 No. 2519-19, it is indicated that the compensation for renting housing paid to an employee who moved to another city to work in a branch of the organization is not subject to subpara. "and" paragraph 2 of Art. 9 of Law No. 212-FZ, since this provision provides for exemption from the taxation of insurance premiums on reimbursement of employee expenses only for relocation. Consequently, the amounts of such compensation are subject to insurance premiums in accordance with the generally established procedure.

Some courts also believe that the operation of providing housing to employees when they move is subject to inclusion in the base for calculating insurance premiums (see, for example, Ruling of the Supreme Arbitration Court of the Russian Federation dated May 12, 2014 No. VAS-3314/14).

Conclusions. Since in 2014 Art. 169 of the Labor Code of the Russian Federation, amendments were made to clarify the procedure for reimbursement of expenses when moving, the application of the approach according to which the payment for housing of nonresident workers is considered as compensation has become safer from the point of view of taxation.

Nevertheless, it is impossible to completely exclude the possibility of claims by regulatory authorities based on the qualification of the housing operation as payment in kind, in terms of VAT, personal income tax, and insurance premiums. If the dispute is resolved in court, the taxpayer has prospects for successfully challenging the claims of the tax authority.

For this reason, the need for compensation should be stipulated in the employment agreement. The Labor Code states that the element of remuneration, expressed in kind, should not exceed 20% of the salary. The associated expenses of the employer are reflected in "profitable" expenses. And in this case, only the amount not exceeding 20% ​​of the salary can be taken into account in their list. However, there is a precedent in which all expenses of the employer were recognized as part of "profitable" expenses in full. This was justified by the fact that all these expenses are needed to ensure the production process. If the employer did not reimburse all expenses, employees from other cities would not be able to perform their labor functions. According to the same justification, it is impossible to form taxation rules on the basis of the provisions of the Labor Code. For this reason, the 20% rule is not entirely legitimate.

How is employee rent reimbursed?

Tax Code of the Russian Federation). Similar explanations are contained in the letter of the Federal Tax Service of Russia dated January 12, 2009 No. BE-22-3/6. The chief accountant advises: there are arguments that make it possible to fully take into account the costs of paying (compensating) the cost of housing and travel of employees when calculating income tax. They are as follows. The composition of labor costs includes any accruals in cash and (or) in kind, as well as expenses related to the maintenance of employees provided for by law, labor (collective) agreements (Art.

255 of the Tax Code of the Russian Federation). Article 131 of the Labor Code of the Russian Federation, which establishes a 20% limit on payments in kind in the total amount of the monthly salary, applies only to labor relations and cannot be applied when calculating taxes.

Taxation of compensation for rental housing to an employee

And what is required in order to consider the payment of housing part of the income? The amount of remuneration is considered established if, from the terms of the employment contract, it is possible to reliably determine how much wages are due to the employee for the amount of work actually performed. That is, if an employee, having not received the due payment (in cash or in kind), may, on the basis of an employment contract, demand that the employer pay him a specific amount for work. As a general rule, the organization pays wages in money - in rubles (Art.
131 of the Labor Code of the Russian Federation). At the same time, in accordance with a collective or labor agreement, upon a written application of an employee, the employer can pay for his work in other forms that do not contradict the law.

Apartment rental for employees

Attention

The employer's in-kind income is subject to income tax. Accounting This method involves the use of the following accounting entries:

• DT20, 26, 44 KT76. Inclusion of rental payments in the company's expenses.
• DT70 KT68.

Withholding personal income tax from income in kind included in the salary of an employee.

The considered method of calculating the tax is good in that if it is applied, the supervisory authorities will not have any questions. A method with high risks and high rewards This method can be used if the head of the company is ready to defend the legality of the application before the supervisory authorities.

Rental housing for workers

• "Lessor by proxy": to whom to pay, from whom to withhold personal income tax, No. 23
• Property taxes on rent and leasing, No. 23
• The landlord died: who to pay and how, No. 22
• We accept capital investments from the tenant, No. 21
• Improving the leased property, No. 20
• How a Tenant Considers Improvements, No. 20
• Rental housing for employees, No. 18
• Just about difficult about rent, No. 17
• Transactions with real estate leased from the municipality: what about taxes, No. 16
• Renting a car with a driver: we consider personal income tax and insurance premiums, No. 8
• Lease-to-own: how to do without recalculations, No. 7
• We rent real estate from an individual: what an accountant needs to know, No. 3
2012

1. We buy and assign the rights to lease land, No. 19
2. How to secure your rental property expenses, #3

What documents are needed for housing compensation

For example, it can be a collective agreement. Consider payment options:

• Renting an apartment designed by the company itself.
• Housing is rented by the employee. The employer simply reimburses his expenses. The manager can make deductions both to the account of the employee himself and to the account of the lessor.

The funds transferred to the employee will be considered income in kind. Documents required for reimbursement of expenses In order for the employee's expenses to be compensated, a number of documents must be submitted.

These are papers that confirm the employee's expenses that are subject to reimbursement.

Renting rules: payment for the accommodation of an invited employee

In this case, the head of the company must compensate for the costs associated with the following aspects:

• Relocation of an employee along with members of his family.
• Transportation of personal property.
• Arrangement in a new place.

The procedure for compensation, as well as the amount of payments, is determined by collective agreements and internal acts. The cost of settling in a new place includes the cost of renting a home. Therefore, on the basis of Article 169 of the Labor Code of the Russian Federation, the employer is obliged to reimburse the costs of renting an apartment.
Features of payment of rent Only in one case does the employer have an obligation to pay rent: when he invited a nonresident employee to work. In other cases, the manager may not reimburse expenses. However, he can pay compensation voluntarily.
In this case, the corresponding obligations taken voluntarily must be prescribed in internal acts.

Employee housing expenses

Important

After all, in accordance with the Labor Code of the Russian Federation, when an employee moves to another locality, in agreement with the employer, the latter must provide the employee with a lift within the limits established by the contract. Moreover, the employment contract must be concluded before the employee moves to the place of work. 169 of the Labor Code of the Russian Federation. Also, when moving, employees also expect a 55% increase in wages, while employers offer only 35%.

5 p. 1 art. 264 of the Tax Code of the Russian Federation. Compensations related to the relocation of an employee to another locality are not subject to personal income tax. 3 art. 217 of the Tax Code of the Russian Federation. It is not necessary to accrue insurance premiums, since such compensation is indicated among the non-taxable payments subpara. "and" p. 2 h. 1 art. 9 of Law No. 212-FZ; sub. 2 p. 1 art. 20.2 of the Law of July 24, 1998 No. 125-FZ; articles 164, 165, 169 of the Labor Code of the Russian Federation.
Therefore, if the obligation of the employer to compensate for the expenses is stipulated by the collective agreement, the corresponding payments will be rather social. They are not aimed at stimulating employees, they do not depend on the position of the employee, the fulfillment of his labor plan. For this reason, such income in kind cannot be included in the contribution base.

The same opinion was formulated in the FAS resolution of June 1, 2014. What is the position of the employer? It all depends on whether the leader is ready to defend his opinion. If not, then it makes sense to choose a generally accepted position.

In this case, the income of the employee will be subject to contributions. If the manager is ready to defend his position, you can not deduct contributions from income. The second option is more profitable. It is the first position that is typical for supervisory authorities, and the second for the courts.

Compensation for rental housing to employees what documents

And if the costs of providing workers with housing are caused by production needs and are provided for by employment contracts, they can be taken into account when calculating income tax by virtue of the direct indication of Article 255 of the Tax Code of the Russian Federation. However, the company should be wary. For non-compliance with the norms of labor legislation, she can be fined from 30 thousand to 50 thousand rubles, and her head - from 1 thousand to 5 thousand rubles. Such liability is provided for in paragraph 1 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation.

Info

That is, it is impossible to set an employee's non-monetary share of wages above 20 percent - this is a violation of labor laws. We add: not all courts agree that housing costs can only be taken into account as part of labor costs. For example, the Federal Antimonopoly Service of the Moscow District in its resolution of July 30, 2010 No.