Disciplinary sanction compensation for rent. How to pay for rent

To date, the real estate industry is quite actively developing, offering the consumer various services. However, renting a living space is fundamental. Due to various life circumstances, many of us are faced with the need to sublease real estate, but few people know that Russian legislation provides for such an opportunity as compensation for rental housing. In some cases, it will not be difficult to obtain it, and sometimes it will be necessary to receive such payments.

Who is eligible for sublease compensation?

Reimbursement of real estate rental expenses is a benefit provided by the state or an enterprise to the following categories of citizens:

• Socially unprotected persons, this includes - orphans, children left without parental care, families belonging to the poor.
• Military personnel who do not have residential premises owned at the place of service.
• An employee of an organization who has a permanent itinerant nature of activity or frequent trips on business trips, if such an item is specified in the employment contract.

In the latter case, housing can be rented centrally, that is, immediately from the company's accounting department to the account of the property owner, in the form of daily allowances for the employee (the amount of which includes payment for accommodation), or in the format of a refund of money spent after the trip (if there are receipts). A similar algorithm is used for all budget employees, only here payments are made from the budget of the organization (state transfers).

Employee rental compensation

When hiring, the employee and the manager, as a rule, discuss the possibility of business trips, frequent trips, or even moving to permanent place residence in another city, where, for example, a branch of the organization is located. If the employee is satisfied with the conditions of employment, then in without fail, the contract should reflect all the nuances, including those related to living expenses - the procedure for payment, the amount of the wage supplement, the level of comfort of housing, whether the employee is supposed to live with his family, etc.

There are two main payment methods:

1. The real estate lease agreement is concluded directly by the company itself.
2. The housing is rented by the employee, the manager, in turn, only compensates for the costs.

Important: The employer can pay rent directly to the landlord or transfer cash to the employee's account.

It should be noted that the funds transferred to the employee on account of the rent will be classified as income received in kind and, accordingly, will be subject to tax (personal income tax) and insurance premiums. In addition, by law, this amount should not exceed 20% of the total income of the employee.

If the tenant is an employee, the following information must be provided as evidence for the subsequent compensation of expenses for sublease of housing:

• Lease contract. The document must necessarily reflect the personal data of the landlord, tenant, address of the property, cost, period for which the housing is expected to be rented.

Important: If the lease period exceeds 1 year, in this case, the agreement should be registered with Rossreestr.

• Payment orders for payment of rental housing, landlord's receipts.

Cash compensation for sub-rent during a business trip

If an employee goes on a long business trip to another city, in addition to payments for basic expenses, an article should be included on reimbursement of expenses for housing rent and utility bills.

The amount for accommodation, which is subject to subsequent compensation, is negotiated immediately before the trip. If the limit is exceeded, the employee pays the cash difference at his own expense.

Compensation payments while traveling

Traveling work is a type of labor activity that takes place outside the office of the organization.

Permanent trips are not business trips, however, official expenses - for food, accommodation, travel, etc. are compensated without fail. The only caveat is that you should provide documents confirming expenses (checks, invoices for payment, tickets), and this income is not taxed.

Where to go to get compensation

In order to answer this question, it is necessary to divide the categories of applicants for reimbursement of monetary costs.

As for employees of enterprises, it must be borne in mind that there is no law prescribing that it is mandatory to provide an employee with compensation for housing. The only case is when the employer invites foreign citizens. Only then is he obliged to provide them with living space. In all other cases, the management of the organization makes a decision on reimbursement of expenses on a voluntary basis. The amount of compensation and the procedure for obtaining it are indicated in the internal documentation of the enterprise and negotiated with the employee on an individual basis.

As for military personnel (Ministry of Internal Affairs employees), here the issue of compensation payments should be taken much more seriously, since funding comes from the federal budget. Accordingly, the requirements for real estate are somewhat different and payments may be denied if certain requirements are not met.

In order to exercise your right, you must write a report addressed to the head of the unit where the employee arrived for distribution and attach documents to compensate for rental housing:

• Documents proving the identity of the military man and all members of his family.
• Information about the composition of the family.
• Lease contract.
• Certificate of enrollment of an employee in the civil service of a military unit.

The amount of compensation for sublease of residential premises to the military depends on the following factors:

• Occupied living space in accordance with the social norm. For example:

ü 24 sq.m is due to an employee if he lives alone.

ü 36 sq.m if, in addition to him, one family member will live.

ü 43 sq.m relies on three people, including a soldier.

ü If the number of family members exceeds 4 people, the calculation is based on 12 sq.m per person.

• The average value of real estate in a particular region.

Payment of compensation for sublease to citizens who are recognized as socially unprotected is carried out when the person applied to the authorities social protection to be recognized as in need of better housing conditions.

In the event that local governments cannot provide residential real estate to the ownership of a citizen or provide them on the basis of a social tenancy agreement, payments are assigned.

The amount of compensation is not fixed and depends on the annual level of indexation of compensation payments in the region, as well as the season. For example, in the summer there is no heating, respectively, and the amount of payment will be less.

In addition, it should be noted that the presence of arrears in the apartment and utility bills is the basis for the termination of rent compensation.

According to the Ministry of Finance of Russia, when paying rent to an employee, he has a "natural" income, which means that the company must calculate and pay personal income tax from him and insurance premiums. Is it really?

Officials give standard arguments (letter of the Ministry of Finance of Russia dated July 17, 2015 No. 03-08-05 / 41253). When determining the tax base for personal income tax, all income of the taxpayer received by him both in cash and in kind (clause 1 of article 210 of the Tax Code of the Russian Federation) is taken into account. In-kind income includes payment by an organization or entrepreneur for goods, works, services (including utilities) in the interests of an individual (subclause 1, clause 2, article 211 of the Tax Code of the Russian Federation). Thus, payment for the rent of an apartment in which a nonresident employee lives is his income received in kind. Therefore, the employer, who in this case is recognized as a tax agent, must include the amount of payment for housing rent in the employee's income subject to personal income tax.

Similar explanations were given by the Ministry of Finance of Russia before (letters of the Ministry of Finance of Russia dated September 19, 2014 No. 03-04-06 / 46997, dated October 22, 2013 No. 03-04-06 / 44206, dated September 30, 2013 No. 03-03-06 / 1 / 40369). At the same time, the conclusions of officials relate to situations both with the provision of housing to employees and with the reimbursement of their living expenses. The difference is that in the first case, the company itself concludes a lease agreement with the landlord, and it also pays the rent directly to the landlord. And in the second case, the employee himself looks for an apartment for himself, he concludes a lease agreement with the landlord and pays it himself, and then the employer company reimburses the expenses incurred by him for renting housing (or immediately pays him the estimated amount of compensation for rent).

Personal income tax from the rental of housing to the employee is not withheld

The position of the Russian Ministry of Finance cannot be called indisputable. The fact is that the payment for the rent of housing for workers from other cities is directly related to the fulfillment of their labor duties and is of a compensatory nature. Therefore, housing rent should not be included in the tax base for personal income tax. And arbitration courts agree with this argument. For example, in one of the resolutions (post. FAS VSO dated 11.09.2013 No. F02-4189/13), emphasis was placed on Article 169 of the Labor Code of the Russian Federation, which spells out the obligation of the employer to ensure that the employee is reimbursed for the costs of settling in a new place of residence in the event of moving to work in another area. The court recognized the payment for the rent of the employee’s housing by arrangement at a new place of residence (taking into account the fact that the procedure for these payments is determined precisely in the employment contract) and, referring to the norm of the Tax Code of the Russian Federation (clause 3 of article 217 of the Tax Code of the Russian Federation), which exempts payments of a compensatory nature from personal income tax established by the legislation of the Russian Federation, took the side of the taxpayer.

In another case (Decree of the FAS UO dated 08.06.2012 No. Ф09-3304/12), the decisive argument was that the payments made by the company to landlords of residential premises are related to the performance of their duties by nonresident employees. In other words, the employee could not do his job if he lived elsewhere. Therefore, the payment of rent for the employee's housing is made primarily in the interests of the employer.

This is far from complete list judgments rendered in favor of taxpayers. There are others (post. FAS DVO dated 01.25.2013 No. F03-5923/12, FAS ZSO dated 09.02.2011 No. F04-4186/11, FAS MO dated 03.21.2011 No. F05-1300/2011), therefore, if the company is ready to sue, she may not charge personal income tax on housing expenses.

The moment of calculation of personal income tax from the payment of rent

For those who are not ready to defend their position in court, the question arises: at what point should personal income tax be calculated in the case when the employer himself negotiates and pays off with the landlord? Indeed, often payment for renting an apartment is made in advance, sometimes even several months in advance. Let us turn to subparagraph 2 of paragraph 1 of Article 223 of the Tax Code of the Russian Federation, which states that the date of actual receipt of income is the day of transfer of income in kind.

At the time of payment of the advance payment, according to the author, it is impossible to talk about the income of the employee subject to personal income tax. After all, firstly, the employee has not yet used the rental service, which means that it cannot be said that the payment was for it. There is only an advance payment, and this different concepts. Secondly, the lease agreement can be terminated, and then the unused advance payment is returned to the tenant (employer). Obviously, in this case, the worker will not have a "natural" income until the moment the rental service is received. Income arises only after the employee has taken advantage of the material benefit, that is, lived for some time in the apartment. This means that the company must withhold personal income tax when paying wages for the month in which the employee used the rented apartment.

EXAMPLE In January 2016, the company paid in advance the rent for February, March and April 2016. Accordingly, starting from February, the employee has an "in-kind" income. And when paying the February salary (in March), the organization will have to withhold personal income tax for renting an apartment in February.

It should be noted that officials have a different opinion on this matter. In one of the letters of the Ministry of Finance of Russia (letter of the Ministry of Finance of Russia dated August 26, 2013 No. 03-04-06 / 34883) it is said that "the date of receipt of income in this case is determined as the date of payment for renting an apartment, including advance payments."

Also, do not forget that the employer will have to act as a tax agent for personal income tax in relation to the person who provided his living quarters for rent (unless, of course, the landlord is registered as an individual entrepreneur). Indeed, in this case, the employer is the source of income payment (letters of the Ministry of Finance of Russia dated September 7, 2012 No. 03-04-06 / 8-272, dated October 7, 2009 No. 03-04-06-01 / 259).

Employee housing insurance premiums

Officials believe that the amounts of the monthly reimbursement of expenses for renting a dwelling fully comply with all elements of the object of taxation of insurance premiums, and therefore are subject to them (letter of the FSS of Russia dated November 17, 2011 No. 14-03-11 / 08-13985).

But the mere fact of having labor relations between the employer and employees, including on the basis of employment contract, does not indicate that all payments that accrue to employees are remuneration for their work. The payment of housing rent for an employee is included in the payments social character and is not an incentive payment. It also does not depend on the qualifications of workers, the complexity, quality, quantity, conditions of the work itself. Therefore, here it is impossible to talk about a hidden form of remuneration and there is no reason to charge contributions.

In addition, the Law on Insurance Contributions (subclause "and" clause 2, part 1, article 9 of the Federal Law of July 24, 2009 No. 212-FZ) clearly states that legally established compensation payments related to performance of labor duties by an individual, including in connection with moving to work in another locality. And the obligation to provide guarantees and compensations to employees when moving to work in another locality is just provided for in article 165 of the Labor Code of the Russian Federation.

Albina Ostrovskaya, leading tax consultant of Tax Optima consulting group

© NPP GARANT-SERVICE LLC, 2017. The GARANT system has been produced since 1990. The Garant company and its partners are members of the Russian Legal Information Association GARANT.

Renting housing for an employee: who and what taxes pays

What and in which contracts to indicate

The employer is not obliged to pay the employee for housing in a new place, but may. This condition must be stated:

(or) in an employment contract with an employee;

(or) in a collective agreement if hiring workers from other regions is a common thing for your company.

At the same time, the contract may stipulate that the employer rents an apartment to the employee or that compensates the latter for rental costs.

Do I need to pay VAT

The Ministry of Finance believes that the paid by the organization housing rental cost for a non-resident or foreign worker - his income in kind(Letters of the Ministry of Finance of Russia dated 17.01.2011 N 03-04-06/6-1, dated 03.06.2008 N 03-04-06-01/149, dated 05.28.2008 N 03-04-06-01/142).

And if this is income (Articles 41, 208, paragraph 2, paragraph 2, article 211 of the Tax Code of the Russian Federation), then it must be subject to personal income tax(Clause 1, Article 210 of the Tax Code of the Russian Federation): at a rate of 13% if the employee is a resident or a highly qualified foreigner (Clause 1, 3 of Article 224 of the Tax Code of the Russian Federation), or at a rate of 30% if he is a non-resident (Clause 3 of Article 224 of the Tax Code of the Russian Federation ). In this case, the employer acts as a tax agent (Items 1, 2, Article 226 of the Tax Code of the Russian Federation) and must withhold tax from cash payments employee, in particular from the salary (but not more than 50% of it) (Clause 4, Article 226 of the Tax Code of the Russian Federation).

According to the Ministry of Finance, only the reimbursement of expenses for the move itself is not taxed (as compensation) (Letters of the Ministry of Finance of Russia of July 13, 2009 N 03-04-06-01 / 165, of July 20, 2007 N 03-04-06-01 / 255 ), but not according to the employee's residence in a new place (Letters of the Ministry of Finance of Russia of December 17, 2008 N 03-03-06 / 1/688, of January 25, 2008 N 03-04-06-01 / 22). The Ministry of Finance believes that the payment of rental housing for an employee should be subject to personal income tax, since such compensation is not named in Art. 217 of the Tax Code of the Russian Federation (dedicated to the income of an individual, exempt from taxation).

However, the courts do not agree with this approach (Resolutions of the FAS ZSO dated November 17, 2010 in case N A45-26455 / 2009; Ninth Arbitration Court of Appeal dated December 28, 2010 N 09AP-30496 / 2010-AK; FAS VVO dated June 24, 2008 in case N A43-28282/2007-37-943). In their opinion, the employer has the right to pay the employee in connection with the move, in addition to lifting, also the rent of an apartment in the amount established in the contract (Articles 164, 165, 169 of the Labor Code of the Russian Federation). Then renting an apartment will also be compensation payment and should not be subject to personal income tax (Clause 3, Article 217 of the Tax Code of the Russian Federation). Moreover, in one of the decisions, the court directly indicated that under the arrangement of an employee in a new place, it is also supposed to provide him with housing at the expense of the company (Resolution of the Federal Antimonopoly Service of the Moscow Region of August 21, 2008 N KA-A40 / 7732-08).

And if an employer employs a foreigner, then he can not only provide him with housing, but is also obliged to do this by virtue of the Law (Clause 5, Article 16 of the Federal Law of July 25, 2002 N 115-FZ "On legal status foreign citizens in Russian Federation"). The courts spoke in the same vein (Resolutions of the FAS MO dated 08.21.2008 N KA-A40 / 7732-08; FAS TsO dated 12/11/2007 in case N A48-717 / 07-2). Therefore, on the calculation of personal income tax in such a situation should not exist at all.

In general, if you do not accrue personal income tax, then you will probably have to defend this position in court. But the chance to win is quite real.

Do I need to pay insurance premiums?

Here the situation is exactly the same as with personal income tax. Under the Law, you have the right to not tax insurance premiums related to the relocation of an employee (Subparagraph "and" clause 2 of part 1 of article 9 of the Federal Law of July 24, 2009 N 212-FZ "On insurance premiums." (hereinafter - the Law N 212-FZ)). But nothing is written about the reimbursement of housing costs in the Law. Therefore, the Ministry of Health and Social Development (as well as the Ministry of Finance with the tax authorities) indicates that only compensation related to the employee’s relocation to a new place, and not residence, is not subject to contributions (Clause 3 of the Letter of the Ministry of Health and Social Development of Russia dated 05.08.2010 N 2519-19; Part 1 of Art. 7 of Law N 212-FZ). The difference with personal income tax here is only that the income received in the form of paid rent will help to quickly reach the payment limit, starting from which it is no longer necessary to accrue insurance premiums (in 2011 - 463 thousand rubles) (Parts 4, 5 of article 8 Law N 212-FZ).

The situation is not much better with "injury" contributions. At first glance, it is not necessary to charge them for rent for an apartment (Subparagraph 2, clause 1, article 20.2 of the Federal Law of July 24, 1998 N 125-FZ "On Compulsory Social Insurance against Occupational Accidents and Occupational Diseases" (hereinafter - Law N 125-FZ)). But in Law 125-FZ, which regulates the payment of contributions "for injuries", the same wording is used as in Law N 212-FZ, which deals with insurance premiums to the PFR, FSS, FFOMS and TFOMS. Therefore, most likely, officials will still speak out on this issue not in favor of the taxpayer. There is no payout limit for these contributions.

There is no judicial practice on the issue of accrual of contributions to rent. But in terms of compensation, the current rules for calculating insurance premiums are similar to the rules for calculating the previously valid UST. Therefore, when resolving disputes, one can refer to the arguments of court decisions in which rent was not subject to a single social tax (Resolutions of the FAS ZSO dated 11/17/2010 in case N A45-26455 / 2009; FAS VVO dated 06/24/2008 in case N A43-28282 / 2007-37-943).

Is it possible to include rent in "profitable" expenses?

The Ministry of Finance has spoken on this issue more than once and not always in the same way. Judging by the latest clarifications, rent can be taken into account as expenses for in-kind wages (Article 255 of the Tax Code of the Russian Federation). This applies to cases when the employer pays the rent himself (Letters of the Ministry of Finance of Russia dated January 17, 2011 N 03-04-06 / 6-1, dated November 12, 2009 N 03-03-06 / 2/223), and when he reimburses the employee such expenses (Letters of the Ministry of Finance of Russia of October 28, 2010 N 03-03-06/1/671, of July 13, 2009 N 03-04-06-01/165). But in any case, more than 20% of the employee's salary cannot be taken into account in expenses. Since it is precisely such part of it that can be paid to him in non-monetary form (Article 131 of the Labor Code of the Russian Federation). However, it is difficult to agree with the opinion of officials. In particular, what kind of non-monetary form can there be if we give money to an employee to rent an apartment? In addition, the Tax Code does not make the accounting of expenses dependent on the fulfillment of the requirements of other branches of law, including labor law. And once the court rejected the tax authorities’ references to a 20% limitation on the amount of salary, since labor and tax relations are still different things (Resolution of the Federal Antimonopoly Service of the Central Organ of September 29, 2010 in case N A23-5464 / 2009A-14-233).

Moreover, the Ministry of Finance believes that the condition of paying rent for an employee should be specified in the employment contract.

As a result, the tax authorities sometimes "remove" the cost of renting housing as unreasonable. But the courts do not support them in this matter. There are decisions that say that rental costs can be included in labor costs(Paragraphs 4, 25 of Article 255 of the Tax Code of the Russian Federation), if the provision of housing to employees at the expense of the employer was necessary for them to fulfill their labor duties (Resolution of the Federal Antimonopoly Service of the Russian Federation of July 14, 2009 in case N A65-27027 / 2007). At the same time, in one of the decisions, the court noted that the list of other expenses in favor of the employee provided for by the labor or collective agreement is open (Resolution of the Federal Antimonopoly Service of the Central Organ of April 15, 2010 in case N A35-5556 / 2009).

Dry residue - take into account the cost of renting housing for an employee can be in full size as:

(or) labor costs;

(or) other expenses (Subparagraphs 10, 49, paragraph 1, article 264 of the Tax Code of the Russian Federation).

Discussing with the manager

The most problem-free option to provide an employee with housing is to rent an apartment at the expense of the company and write a condition about this in the employment contract with the employee. True, then you will have to pay more taxes. If you do not specify such a condition in the contract, then there will be less taxes, but claims from controllers are possible.

And now let's try to summarize the tax consequences and risks for each situation in the table. We also consider the case when the condition for renting housing for an employee is not prescribed either in the labor or in the collective agreement. Accounting options that are most beneficial for the organization, but which will cause the most questions from regulatory authorities, we called dangerous. And those options that are offered by the representatives of departments themselves were classified as safe.

Rental Condition

Is it possible to take into account

indicated in the labor or

employee housing or

yes, but in size

not specified in

If there is no desire to argue, then perhaps a simpler solution to the issue will be the usual increase in the salary of an employee so that he himself can rent housing without prejudice to his financial situation. And about the lease in general, nothing needs to be mentioned in any documents. Of course, personal income tax will need to be charged from the increased salary (Clause 1 of Article 210 of the Tax Code of the Russian Federation), insurance premiums (Part 1 of Article 7 of Law N 212-FZ), contributions "for injuries" (Clause 1 of Article 20.1 of Law N 125-FZ ). But at least it will be possible to take into account all expenses when calculating income tax in full (Article 255 of the Tax Code of the Russian Federation). And there will be no questions from the tax authorities.

14 March 2016 The nuances of recognizing the cost of renting housing for employees

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.

Labor costs

Any accruals to employees in cash and (or) in kind

Incentives and allowances

Compensation accruals related to the mode of work or working conditions

Bonuses and one-time incentive accruals

Expenses associated with the maintenance of these employees, provided for by the norms of the legislation of the Russian Federation, labor agreements (contracts) and (or) collective agreements

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 monetary compensation for 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 of housing area established by the authority state power of the corresponding subject of the Russian Federation (clauses “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. Only possible way to provide housing (thereby fulfilling the requirement of the law) is to rent housing for a foreign worker, that is, to 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 - 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 a misinterpretation 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).

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 also Alternative option recognition of designated expenses (upheld 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”.

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Seminars

Taxation of compensation for rental housing to an employee

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Compensation for renting housing to an employee in terms of taxation turns out to be an issue that is not always resolved unambiguously. Consider possible options for such compensation and their tax consequences.

Rental payment options

It is not uncommon for an employer to pay rent for their employees. At the same time, there are not so many situations that, according to the norms of the law, directly oblige the employer to pay housing costs. Such payments are called compensation. But more often the employer assumes such responsibilities voluntarily, and it is they that cause the largest number questions.

Taxation of these payments may depend on various factors:

• availability of documentary evidence;
• assessment of the type of expense for taxation purposes;
• payment method.

We will consider the taxation of such expenses in 2 aspects:

• acceptance for inclusion in the profit base;
• employee's income subject to personal income tax and insurance premiums.

With regard to VAT, a deduction for such expenses is possible (clause 7, article 171 of the Tax Code of the Russian Federation), but it requires an invoice (clause 1, article 172 of the Tax Code of the Russian Federation) and attributing the costs incurred to activities conducted with VAT (clause 1 of Article 172 of the Tax Code of the Russian Federation). 1 article 170 of the Tax Code of the Russian Federation).

Travel allowances

The issue of paying for accommodation as part of travel allowances is unambiguously resolved. The Labor Code of the Russian Federation (Article 168) obliges the employer to reimburse such expenses, and they will be taken into account in their full amount in the profit base (Subclause 12, Clause 1, Article 264 of the Tax Code of the Russian Federation). Including, if there is a corresponding decision of the employer for this, it is allowed to accept living expenses in the area from where the employee can return to the main place of residence every day (letter of the Ministry of Finance of the Russian Federation dated 10.10.2016 No. 03-04-06 / 58957).

Subject to the availability of documents evidencing the amount of living expenses, they will not fall under either the income tax of individuals (clause 3, article 217 of the Tax Code of the Russian Federation), or insurance premiums (clause 2, article 422 of the Tax Code of the Russian Federation, clause 2, article 20.2 of the Law "On Compulsory Social Insurance ..." dated July 24, 1998 No. 125-FZ). In the absence of documents confirming such expenses, amounts not exceeding per day will be exempted from personal income tax:

• 700 rub. on a trip carried out on the territory of the Russian Federation;
• 2500 rub. on a business trip.

But in terms of insurance premiums of a similar clause, no paragraph 2 of Art. 422 of the Tax Code of the Russian Federation, nor paragraph 2 of Art. 20.2 of Law 125-FZ do not contain. That is, in the absence of documents confirming the expenses, the full amount of compensation for living expenses paid during the business trip will be subject to insurance premiums.

One of the options for providing housing to a seconded person (with frequent trips to the same place) is the employer hiring housing that the employee occupies while on a business trip. The employer has the right to take into account such expenses in the profit base (subclause 10, clause 1, article 264 of the Tax Code of the Russian Federation), but only for those periods when a seconded worker lived in rented housing (letter of the Federal Tax Service of Russia for Moscow dated May 24, 2012 No. 16 -15/ [email protected]). Moreover, utility payments can also be included in the accepted expenses on the same conditions (letter of the Ministry of Finance of the Russian Federation dated 05.12.2011 No. 03-03-06 / 1/802).

Compensation payments while traveling

A similar rule obliging to compensate for living expenses is also provided for in the Labor Code of the Russian Federation in terms of traveling work (Article 168.1). Such compensation should not be regarded as related to business trips (Article 166 of the Labor Code of the Russian Federation), but as a payment that takes into account the performance of work in special conditions.

This payment can be made in 2 ways:

• as a salary supplement - in this case, the employer sets its own size, it is fully accepted as a reduction in the profit base (clause 3 of article 255 of the Tax Code of the Russian Federation) and as part of the salary is subject to personal income tax and insurance premiums;
• according to the actual costs of the employee, documented - in this option, it is regarded as compensation for expenses caused by the need to perform official duties, is fully taken into account when determining the profit base (subclause 49, clause 1, article 264 of the Tax Code of the Russian Federation) and is not subject to income tax individuals and insurance premiums (clause 3, article 217, subparagraph 2, clause 1, article 422 of the Tax Code of the Russian Federation, subparagraph 2, clause 1, article 20.2 of Law 125-FZ).

The choice of compensation method is fixed in the internal normative act.

Compensation for moving to work in another area

Another type of compensation provided for by the Labor Code of the Russian Federation (Article 169) is the payment of expenses caused by an employee changing his place of residence due to a job change. These expenses are divided into 2 types:

• for the actual move;
• on those related to the arrangement at the place of a new job.

Among them, living expenses are not directly named, that is, already in the list itself there is uncertainty about the possibility of attributing the employee's living expenses to them. And it is it that the Ministry of Finance of Russia uses (letters dated June 14, 2016 No. 03-03-06/1/34531 , dated September 19, 2014 No. 03-04-06 / 46997) to justify not attributing the costs of paying for accommodation for nonresident worker to the costs associated with its development.

At the same time, the courts quite often recognize the expenses incurred by the employer for housing for an employee from another region, relating to the category of payments of a compensatory nature (determination of the Supreme Court of the Russian Federation of March 25, 2015 No. 2016 in case No. A40-221105/2015, West Siberian District dated June 21, 2016 in case No. A67-7145/2015).

Thus, the correlation of the costs associated with the payment of the employee's accommodation, with the costs related to his arrangement at the place of his new job, is very likely to cause disputes with the inspectors.

Conditions and options for voluntary payment for employee accommodation

So, the obligation established by law to provide housing to a person invited to work from another locality, the employer does not have. There is only 1 exception here: when hiring a foreigner, the employer must guarantee the provision of housing (clause 5, article 16 of the law “On the legal status ...” dated July 25, 2002 No. 115-FZ). However, the issuance of such a guarantee does not imply that the employer has an obligation to pay for housing (letter of the Federal Tax Service of Russia dated January 10, 2017 No. BS-4-11 / [email protected]).

The decision of the employer on the obligations he voluntarily assumes to pay for living expenses is fixed in an internal regulatory document (collective or employment contract).

Types of such payment can be:

• Settlement of an employee in housing rented by the employer for these purposes.
• Reimbursement to the employee of living expenses for housing rented by him, which is possible in 2 options:
  • payment necessary sums directly to the landlord;
  • the issuance of amounts paid as rent to the employee.

In any of these options, the employee receives income. Moreover, in the case of settlements between the employer directly and the lessor (i.e., without the participation of the employee), this income is regarded as paid to the employee in kind (non-monetary) form (letters of the Ministry of Finance of the Russian Federation dated December 29, 2016 No. 03-04-05 / 79264, dated September 14, 2016 No. 03-04-06/53726).

Taxes on voluntary payment of living expenses of an employee

Income given to an employee (including a foreign one) in the form of rent, regardless of how this payment is made (by transferring money from the employer directly to the lessor or paying the corresponding amount to the employee himself), will be taxed (letter of the Ministry of Finance of Russia dated 07.04. 2017 No. 03-04-09/21137):

• personal income tax (clause 1, article 210 of the Tax Code of the Russian Federation);
• insurance premiums (clause 1, article 420 of the Tax Code of the Russian Federation, clause 1, article 20.1 of the law of July 24, 1998 No. 125-FZ).

In a situation where the employer himself concludes a lease agreement, he will have to withhold personal income tax from the income that will be paid to the landlord who is an individual who is not an individual entrepreneur (clause 4 of article 226 of the Tax Code of the Russian Federation).

For income tax purposes, housing costs may be accounted for as:

• rent payments, if the employer concludes a lease agreement on its own behalf, and they are taken into account in the entire profit base (subclause 10, clause 1, article 264 of the Tax Code of the Russian Federation);
• payments of a social nature (letter of the Ministry of Finance of Russia dated June 14, 2016 No. 03-03-06 / 1 / 34531), due to which the profit base cannot be reduced (clause 29 of article 270 of the Tax Code of the Russian Federation);
• part of the wages (letter of the Ministry of Finance of Russia dated July 17, 2015 No. 03-08-05 / 41253), which in this capacity can be fully taken into account in the profit base (clauses 4, 25 of article 255 of the Tax Code of the Russian Federation).

Read about the features of accounting for payroll expenses among those reducing the profit base. Here.

For the latter option, in situations where the employer himself settles with the landlord (i.e., the employee receives income in kind), the value of the share of the accommodation fee in the total amount of the employee's monthly salary becomes important. Exceeding this share of 20% will lead to a violation of the restriction established by Art. 131 of the Labor Code of the Russian Federation for the payment of wages in non-monetary form.

Results

The need to pay the employee living expenses for the employer can be both mandatory and voluntary. But at the same time, in both cases, accounting for such expenses in the profit base and taxing them as employee income may have options depending on a number of factors. Among such factors, the most significant are the assessment of expenses for the purposes of taxation and contributions, the method of making payments, and the availability of documentary evidence.

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Rental housing for workers

What are the tax implications for the company

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 and clause 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 the remuneration paid in kind cannot exceed 20% of the amount of the employee's salary and 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 t Art. 255 of the Tax Code of the Russian Federation; Letters of the Ministry of Finance dated 19.03.2013 No. 03-03-06/1/8392, dated 02.05.2012 No. 03-03-06/1/216, dated 28.10.2010 No. 03-03-06/1/671, dated 17.01. 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 that can be taken into account when calculating income tax is open.

Do not forget that by paying rent directly to the homeowner 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, paragraph 5 of Art. 3, pp. 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 “in-kind” income of the employee received by him in the framework of labor relations, Part 1 of Art. 7 of the Law of July 24, 2009 No. 212-FZ (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 subpara. 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, by the way, is also supported by the courts, paragraph 2 of the Decree of the FAS ZSO dated 02.09.2011 No. A70-10656 / 2010; Decree of the FAS MO dated March 21, 2011 No. KA-A40 / 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 remuneration system.

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.

The refund must be subject to personal income tax, since such compensation is not named among the payments not subject to this tax.

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.

Also, when moving, employees expect a 55% salary increase, while employers offer only 35%

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 in sub. 5 p. 1 art. 264 of the Tax Code of the Russian Federation.

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

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 surveyed job seekers (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.

06.03.19

The Ministry of Finance recalled that if a company pays for housing rent for employees, then the latter receive income in kind. This income is subject to personal income tax, in addition, the company must pay insurance premiums. In addition, there is a danger that the organization will not be able to take into account these expenses for income tax purposes. To avoid this, it is necessary to arrange the payment of rental housing as part of the wage system - this will be considered part of the salary paid ... 813

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• 29.11.18

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• 14.11.18

  The company compensated employees for the cost of renting residential premises in connection with the forced relocation to a new place of work. Initially, insurance premiums were calculated and paid from these payments. Then the company changed its mind and applied to the PF management with a request for the return of overpaid contributions. The management refused to refund, explaining that the object of taxation of contributions includes not only the employee's salary, but other payments within the framework of ... 1363

• 16.08.18

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• 14.08.18

  In a letter dated May 16, 2018 N 03-04-06 / 32677, the Ministry of Finance answered questions about personal income tax and insurance premiums from the payment by the organization for the rental of residential premises provided to foreign workers temporarily staying in the Russian Federation, as well as from the amounts of compensation paid to such workers , housing costs. According to subparagraph 1 of paragraph 2 of article 211 of the Tax Code, income received by a taxpayer in kind, in particular, includes payment (in full ... 2042

• 14.08.18

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• 03.07.18

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• 21.03.18

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• 14.03.18

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• 08.02.18

  In a letter dated January 12, 2018 N 03-03-06 / 1/823, the Ministry of Finance spoke about accounting for expenses, contributions and personal income tax in a situation where an employee’s expenses for renting housing are paid when moving to work in another locality. Compensations for the purpose of reimbursement to employees of costs associated with the performance of labor duties are not included in the remuneration system, therefore, such costs are included in other costs associated with production and sales, ... 2311

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  In a letter dated November 23, 2017 N 03-03-06 / 1 / 77516, the Ministry of Finance spoke about accounting for housing rent for workers moving to work in another area, as well as insurance premiums from these compensations. In accordance with Article 255 of the Tax Code, labor costs include any accruals to employees in cash and (or) in kind, expenses associated with the maintenance of these employees, provided for by the law, ... 2517

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  The topic of today's Bulletin is the taxation of the cost of renting housing for an employee. This situation often arises when we invite a specialist from another city or region to work. In order to convince him to change his place of residence, the company must reimburse him for his rent. This can be issued as a bonus, an addition to wages, but then this addition will be subject to all taxes, including personal income tax and insurance premiums. Therefore, they often act differently. The company enters into an agreement with the landlord, rents housing (an apartment or apartments), and the employee lives in this apartment. Questions arise: what taxes are taxed on these payments and are they taxed at all, what risks can there be in this situation, are such expenses recognized for income tax? 6740

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  The company, on the basis of the order of the director, provided employees with free accommodation and food. Based on the results of the on-site inspection, the Pension Fund accrued additional insurance premiums, penalties and a fine, indicating that the provision of free food and accommodation to employees was reflected in payrolls and pay slips, which indicates that these remunerations are part of wages. In addition, they are provided for by the employment contract. Court... 5003

• 30.10.17

  In a letter dated October 3, 2017 N 03-04-06 / 64421, the Ministry of Finance spoke about the taxation of the income tax on the amounts paid by the organization for the cost of living of its employees. Income received by an individual in kind, in particular, includes payment (in full or in part) for him by organizations of goods (works, services) or property rights, including utilities, food, recreation, education. Thus, according to general rule, payment by the organization for ... 1450

• 26.10.17

  In a letter dated October 17, 2017 No. GD-4-11 / [email protected] The Federal Tax Service spoke about the taxation of personal income tax and contributions of amounts reimbursed to nonresident employees for the cost of renting residential premises and the accounting for such expenses for income tax purposes. According to paragraph 3 of Article 217 of the Tax Code, all types of compensation payments established by law (within the limits) related, in particular, to the performance of labor duties (including moving to ... 3866

• 25.10.17

  On personal income tax and contributions from the amounts of compensation to non-resident employees for the costs of renting residential premises and on accounting for such expenses 2291

• 18.05.17

  In a letter dated April 7, 2017 No. 03-04-09 / 21137, the Ministry of Finance spoke about personal income tax and insurance premiums from paying the cost of living for employees. The income received by the taxpayer in kind, in particular, includes payment (in full or in part) for him by organizations of goods (works, services) or property rights, including utilities, food, recreation, training in the interests of the taxpayer. Thus, payment by the organization for its ... 4479

• 18.05.17

  On personal income tax and insurance premiums from the payment of the cost of living for employees 3344

• 22.02.17

  In a letter dated 10.01.2017 No. BS-4-11 / [email protected] The Federal Tax Service recalled that, on the basis of clause 3 of Article 217 of the Tax Code, all types of compensation payments established by law (within the limits) related, in particular, to the performance of labor duties by the taxpayer (including moving to work in another locality) are not subject to personal income tax. In accordance with paragraph 5 of article 16 of federal law 115-FZ "On the legal status of foreign citizens in the Russian Federation" ... 2473

• 20.02.17

  On personal income tax from reimbursement (compensation) of expenses of a foreign worker for renting a dwelling in the Russian Federation 2337

• 06.02.17

  Based on the results of the on-site audit, the Pension Fund accrued additional insurance premiums, penalties and fines to the company. The Fund found that the company did not include in the base for calculating contributions the costs of renting premises, undocumented, in the amount specified in the local act, and daily allowances when sending employees on one-day business trips. The fund also recognized unused railway ticket income of the employee and additionally accrued contributions from its cost. Besides,... 1125

• 27.01.17

  In a letter dated December 29, 2016 N 03-04-05 / 79264, the Ministry of Finance indicated that income received by an individual in kind, in particular, includes payment (in full or in part) for him by organizations of goods (works, services) or property rights, including utilities, food, recreation, education in the interests of the taxpayer (subparagraph 1 of paragraph 2 of Article 211 of the Tax Code). For this reason, the Ministry of Finance believes that the organization's payment for its employees ... 3922

• 25.01.17

  On personal income tax on the amounts paid by the organization for the cost of living for employees 1 2651

• 22.12.16

  In a letter dated November 21, 2016 No. 03-03-06 / 1 / 68286, the Ministry of Finance indicated that the Labor Code distinguishes two types of compensation payments. One of them combines payments related to special working conditions, in accordance with Article 129 of Section VI "Payments and Labor Rates" of the Labor Code, and another type of compensation payments is defined in Article 164 of Section VII "Guarantees and Compensations" of the Labor Code. So, in accordance with Article 129 of the Labor Code, in the salary structure, in addition to remuneration for ... 3523

• 14.11.16

  In a letter dated 10.10.16 No. 03-04-06 / 58957, the Ministry of Finance recalled that, in accordance with Article 168 of the Labor Code, in the event of being sent on a business trip, the employer is obliged to reimburse the employee, in particular, the costs of renting a dwelling, as well as additional expenses associated with living outside the place of permanent residence (daily allowance). At the same time, the procedure and amount of reimbursement of expenses associated with business trips are determined by a collective agreement or ... 1565

• 14.11.16

  On accounting for travel expenses for renting a dwelling for income tax purposes 1327

• 24.10.16

  In connection with the transfer of employees to work in another area, the Company entered into lease agreements for residential premises for them. Based on the results of the on-site audit, the Pension Fund charged the company additional insurance premiums, penalties and a fine, including the cost of renting apartments to employees in the base for calculating contributions. The courts of three instances (case No. A40-221105/2015) overturned his decision, pointing to Article 169 of the Labor Code, which provides for reimbursement of employees for moving expenses ... 2658

• 14.10.16

  In a letter dated September 14, 2016 No. 03-04-06 / 53726, the Ministry of Finance considered the issues of calculating personal income tax and income tax in the event that an organization pays for the accommodation of its employees. According to subparagraph 1 of paragraph 2 of article 211 of the Tax Code, income received by a taxpayer in kind, in particular, includes payment (in full or in part) for him by organizations of goods (works, services) or property rights, including utilities, food, recreation, learning in... 3927

• 14.10.16

  On personal income tax and income tax in case of payment by the organization of the cost of living for its employees 2257

• 28.09.16

  In a letter dated August 31, 2016 No. 03-04-09 / 50917, the Ministry of Finance spoke about personal income tax from the employer's payment for the travel of an employee sent by the employer for training to the place of training and accommodation at the place of training. According to subparagraph 1 of paragraph 2 of Article 211 of the Tax Code, income received by an individual in kind includes, in particular, payment (in whole or in part) for him by organizations of goods (works, services) or property rights, including utilities, ... 7 4132

• 27.09.16

  Quite often, in practice, the following situation occurs: an organization on OSNO rents a living space and provides it for use by its employee (for example, if the employee moved to work in another area). It seemed like a domestic situation. However, for an accountant, the question becomes relevant - is it necessary to pay VAT on the cost of rent? 6757

• 14.09.16

  Commentary on the Letter of the Ministry of Finance of the Russian Federation dated June 14, 2016 No. 03-03-06/1/34531. 1700

• 08.08.16

  According to the employment contract, the deputy head of the company was provided with housing for the duration of the employment relationship. Based on the results of the on-site audit, the Pension Fund accrued additional insurance premiums, penalties and a fine to the company, recognizing this as an in-kind payment to the employee. According to the fund, housing services are integral part salaries, since they are conditioned by labor relations and are directly related to labor activity, ... 3596

• 01.08.16

  In a letter dated June 14, 2016 No. 03-03-06 / 1 / 34531, the Ministry of Finance recalled the non-taxation of personal income tax on compensation payments related to the performance of labor duties (including moving to work in another area and reimbursement of travel expenses). Article 169 of the Labor Code provides that when an employee relocates, by prior agreement with the employer, to another locality, the employer is obliged to reimburse the employee for relocation expenses, expenses for ... 6342

• 01.08.16

  On the taxation of personal income tax and income tax on reimbursement of expenses for renting an apartment for an employee who moved to work in another locality 5118

• 19.07.16

  On the accrual of insurance premiums on the amount of compensation to nonresident employees for the costs of renting a dwelling 1555

• 15.03.16

  The company reimbursed two employees for the cost of renting housing while working away from the company's location. Based on the results of the on-site audit, the Pension Fund accrued additional insurance premiums, penalties and a fine to the company, deciding that the specified compensation is due to labor relations, is related to labor activity, is systematic, and therefore is subject to inclusion in the base for calculating contributions. Courts of three instances (case no. ... 1988

• 01.02.16

  In letter No. 03-03-07/803 dated January 15, 2016, the Ministry of Finance indicated that the cost of renting a dwelling intended for accommodation of seconded workers can be included in other expenses related to production and sales. Such expenses are included in the tax base for income tax for the period when business travelers lived in the rented premises, based on documents indirectly confirming ... 3845

• 31.01.16

  Confirmation of the cost of renting accommodation for seconded workers 3011

• 15.06.15

  When staffing facilities located in another locality, as well as for the implementation of guarantees of social protection of employees when they move to a place of work in another locality, the employer (Company) provides employees with living quarters. The obligation to provide housing is enshrined in the local regulatory act of the Company. In order to implement these guarantees, the Company intends to conclude with individuals and legal entities lease agreements for residential premises for the residence of its employees, under which the Company acts on the side of the tenant. 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. What is the procedure for imposing income tax, VAT, personal income tax and insurance premiums on transactions for the transfer of residential premises rented by the Company to its employees? 31383

• 09.10.14

  In the audited period, the company rented a two-room apartment in another city for accommodation of seconded workers. The rent included utilities, garbage collection, cleaning services once a week, communication services (telephone, internet). Based on the results of the on-site inspection, the inspection assessed the company additional income tax, penalties and a fine, pointing out the unlawful reflection of the costs of renting an apartment in another city when ... 5 4620

• 18.09.14

  In a letter dated August 5, 2014 N 03-04-06 / 38542, the Ministry of Finance indicated that, according to Article 169 of the Labor Code, when an employee moves by agreement with the employer to work in another area, the employee should be reimbursed for the costs of moving with his family, transporting property, arranging in a new place of residence. The specific amounts of reimbursement of expenses are determined by agreement of the parties to the employment contract. Please note that the provisions... 2581

• 18.09.14

  On personal income tax from payment (reimbursement) by the new employer to the employee of the costs of moving to a new place of work and renting housing 1941

• 31.07.14

  The company rents residential premises for a nonresident employee. Is such payment of rent recognized as the income of an employee from whom personal income tax must be withheld? Yes, it is recognized, the Ministry of Finance of Russia replied in a letter dated 05.05.14 No. 03-04-05 / 21026. Position of the Ministry of Finance The Tax Code establishes that when determining the tax base for personal income tax, all taxpayer incomes that are received by him both in cash and in kind are taken into account (clause 1 of article 210 of the Tax Code ... 2639

• 17.07.14

  The Ministry of Finance received a letter from an individual who, when hiring, was given the condition that he must live in an apartment rented for him by his employer. Upon dismissal after 4 months of work, the employee was withheld personal income tax from the cost of renting an apartment, equal to 87 thousand rubles per month. Considering this figure to be too high, the former employee, asking the tax inspectorate a question about the legality of withholding, at the same time asked how it should be ... 1581

• 13.05.14

  The organization wants to rent a two-room apartment for foreign employees - for everyone who will come to the organization to work. The landlord is an individual. Is it possible to take into account rental expenses in accounting and tax (income tax) accounting, including for the period when employees will not live in the rented apartment, despite the fact that the apartment is booked for the subsequent residence of foreign employees? 5610

• 09.12.13

  According to Article 92 of the Housing Code of the Russian Federation, service residential premises belong to a specialized housing stock and are intended for the residence of citizens in connection with the nature of their labor relations with a state authority, state or municipal unitary enterprise, institution, as well as in connection with the appointment to a public position or election for elective positions in public authorities (Article 93 of the LC RF). But what to do and how to be guided by those organizations that are commercial and whose employees need to provide corporate housing? Such legal relations are regulated by the norms of the Civil Code of the Russian Federation, namely Article 606 of Chapter 34 of the Civil Code of the Russian Federation, Article 671 of the Civil Code of the Russian Federation, which provide for the rental of housing for an employee for a certain period. 6564

• 11.11.13

  The organization has proven that the payment of rent for housing provided to an employee who has moved from another area is not subject to personal income tax. 5464

• 06.11.13

  If the employer reimburses employees for the cost of renting housing, the latter receive an economic benefit. This means that these amounts must be subject to personal income tax in the prescribed manner (letter of the Ministry of Finance of Russia dated October 22, 2013 No. 03-04-06 / 44206). Compensatory payments related, in particular, to the performance of labor duties by the taxpayer, from which personal income tax is not required, are given in paragraph 3 of Article 217 of the Tax Code. Among them, for example... 1556

• 12.09.13

  In a letter dated August 26, 2013 No. 03-04-06/34883, the Russian Ministry of Finance considered the following situation. The organization plans to rent an apartment for an employee whose employment contract provides for its payment. According to the terms of the preliminary lease agreement, payment is made in advance for 3 months in advance. At what point should personal income tax be withheld from an employee's income? The financial department explained that the payment of rent for an apartment by an organization is for ... 2503

• 24.05.13

  The Ministry of Finance also answered the question about accounting for compensation for the costs of moving and arranging an employee in the expenses of the organization. The agency believes that lifting allowances can be taken into account within the limits determined by the parties to the employment contract. 1703

• 22.12.11

  The organization has the right to take into account in expenses the amount of reimbursement of utility bills for housing rented by an employee for the period of a business trip, and not withhold personal income tax from them 2963

• 16.12.11

  Sending employees on long business trips, the company rents apartments for them. The rental price does not include utility bills. Their employees are paid on the basis of separate receipts. And then the organization reimburses them for the costs. The Ministry of Finance of Russia in a letter dated 05.12.2011 No. 03-03-06 / 1/802 explained that utility payments in this case are included in the cost of renting a dwelling, provided for in paragraph 3 of Art. 217... 1160

• 02.12.11

  The cost of renting housing for a future employee with whom an employment contract has not yet been concluded is not taken into account in expenses 2121

• 30.11.11

  The costs of paying for housing to employees of an organization that are citizens of foreign states can be included in expenses for the purposes of taxing the profits of organizations in an amount not exceeding 20% ​​of the accrued monthly salary, subject to the conclusion of an employment contract. During the period when the contract is not concluded and the foreign worker is not employed by the organization, housing costs cannot reduce the tax base for income tax ... 1145

• To perform certain types of work, it is sometimes easier to find a foreign worker than a compatriot. Since such an employee needs to live somewhere, the organization, having assumed all the costs of renting the treasured square meters, practically buys the loyalty of overseas personnel. It remains to deal with the taxation of bonuses. 1854

• 18.12.07

  Our organization rents from individual- a dwelling of a citizen of the Russian Federation, the amount of rent is transferred by bank transfer, the functions of a tax agent for the transfer of personal income tax are fulfilled. The organization attributes the amount of rent to non-operating expenses (account 91-2), which are not accepted for income tax purposes, except for those days when there are seconded workers from Moscow, although workers on shift actually live there. There are now discussions about renting two more apartments as the staff expands. Is it possible to attribute the cost of renting two more apartments to the cost price? If not, what is the best way to account for it? Does the organization have any tax (and not only) consequences? 6952

• 21.08.07

  In accordance with the letter of the Ministry of Finance of the Russian Federation dated August 09, 2007 No. 03-04-06-01 / 288, if the company pays for housing rent for an employee sent to permanent job overseas, the rental price is subject to personal income tax. At the same time, an employee who does not have the status of a resident of the Russian Federation is subject to personal income tax at a rate of 30%. The status of a tax resident is restored in case of residence in the territory of the Russian Federation for more than 183 days in the tax period.... 1022

Organizations that need highly qualified specialists often invite them to work from other regions. Therefore, the issues of accounting and tax accounting for housing costs for employees from other cities are quite relevant at the present time.

Expenses in the form of rent for residential premises used for residence of a nonresident employee are recognized as expenses for ordinary activities in the month for which the rent is charged, in the amount established by the agreement (clauses 5, 6, 6.1, 16, 18 of the Regulation on accounting"Expenses of the organization" (PBU 10/99), approved by order of the Ministry of Finance of Russia dated May 6, 99 No. 33n).

Personal Income Tax

In accordance with Art. 41 of the Tax Code of the Russian Federation, income is an economic benefit in cash or in kind, taken into account if it is possible to assess it and to the extent that such benefit can be assessed, and determined for individuals in accordance with Chapter 23 "Income Tax for Individuals" of the Tax Code RF.

According to paragraph 1 of Art. 210 of the Tax Code of the Russian Federation, when determining the tax base, all incomes of the taxpayer received by him both in cash and in kind, or the right to dispose of which he has arisen, are taken into account.

As stated in paras. 1 p. 2 art. 211 of the Tax Code of the Russian Federation, income received by a taxpayer in kind, in particular, includes amounts of payment (in full or in part) for him by organizations of goods (works, services) or property rights, including utilities, food, recreation, training in the interests of taxpayer. Therefore, the payment by the organization for its employees of the cost of living is recognized as their income received in kind, and taking into account paragraph 1 of Art. 211 of the Tax Code of the Russian Federation, the amounts of this payment are included in the personal income tax base of the specified persons (letter of the Ministry of Finance of Russia dated September 14, 2016 No. 03-04-06 / 53726).

Example 1

In accordance with the employment contract, payment for the cost of renting housing is part of the salary (official salary) of the employee. The monthly cost of such a lease is 50,000 rubles. Payment is made by transferring funds from the settlement account of the organization to the address of the lessor. The amount of the employee's wages in cash is reduced by the amount paid. Employees are paid wages every time they are paid. For the purposes of tax accounting of income and expenses, the organization applies the accrual method.

In the accounting of the organization, these operations should be reflected as follows (see table).

Corporate income tax

In Art. 255 of the Tax Code of the Russian Federation, it is determined that the taxpayer's labor costs include any accruals to employees in cash and (or) in kind, incentive accruals and allowances, compensation accruals related to the mode of work or working conditions, bonuses and one-time incentive accruals, expenses related to with the maintenance of these workers, provided for by the norms of the legislation of the Russian Federation, labor agreements (contracts) and (or) collective agreements. Therefore, if the employer’s expenses for renting housing for non-resident employees are a form of remuneration and a condition in the employment contract, then such expenses for income tax purposes can be taken into account as expenses as wages in kind, provided that the expenses comply with the requirements of paragraph 1 of Art. 1 st. 252 of the Tax Code of the Russian Federation, according to which expenses must be economically justified, documented and made for the implementation of activities aimed at generating income.

Thus, on the basis of paragraph 25 of Art. 255 of the Tax Code of the Russian Federation, for the purposes of taxation, the costs of renting a dwelling for an employee may also be taken into account as labor costs as other types of expenses incurred in favor of the employee and provided for by the labor and (or) collective agreement. At the same time, there is an alternative option for recognizing these expenses, namely, rental payments for leased property in tax accounting are recognized as other expenses associated with production and sale, for last number reporting (tax) period (clause 10, clause 1, article 264, clause 3, clause 7, article 272 of the Tax Code of the Russian Federation).

Restrictions on employee housing expenses

According to the Ministry of Finance of Russia, the cost of paying for housing to an employee of an organization can be taken into account for profit tax purposes in an amount not exceeding 20% ​​of the monthly earnings of this employee, taking into account bonuses and allowances, subject to the conclusion of an employment contract with him. In the period when such an agreement has not been concluded and the employee is not a member of the organization’s staff, these expenses cannot reduce the tax base for income tax at all (letters No. No. 03-04-06/44206 and dated 30.09.13 No. 03-03-06/1/40369).

Therefore, if the organization decides to recognize the cost of paying for housing to employees of the organization when taxing profits in full, then most likely it will defend its position in court.

The position of the Ministry of Finance of Russia can be argued on the basis of the following arguments:

1) the costs of renting residential premises are not subject to the 20% limit established for non-monetary earnings (Article 131 of the Labor Code of the Russian Federation), since the organization’s costs for renting residential premises for employees are not part of the salary, and the costs of the maintenance of employees (including those related to renting housing for them) does not apply to it, therefore, when calculating income tax, the costs of renting apartments for foreign employees are taken into account in full; 2) 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 include payment for renting residential premises.

Example 2

Under the terms of the concluded employment contract, the employee was provided with an apartment for living, the rent of which is paid by the organization. The cost of renting housing is 50,000 rubles. The salary for the employee is set at 120,000 rubles. The monthly rent is 20,000 rubles.

If the organization adheres to the official position of the Ministry of Finance of Russia on this issue, then it will make the following entries in the accounting on a monthly basis:

Debit 76, Credit 51 - 20,000 rubles. - the rent for the apartment is listed; Debit 20 (26, 44), Credit 70 - 120,000 rubles. - taking into account the cost of remuneration of the employee; Debit 70, Credit 76 - 20,000 rubles. - reflected the cost of rent paid for the employee, on account of wages; Debit 70, Credit 68-NDFL - 2600 rubles. (20,000 rubles x 13%) - personal income tax was withheld from income in the form of wages made in kind, when wages were paid to the employee in cash.

In tax accounting, the specified amount of rent will be included in the cost of wages in full (clause 25, article 255 of the Tax Code of the Russian Federation).

Application of PBU 18/02

Expenses that form the "accounting" profit (loss) of the reporting period, but are not taken into account when determining the tax base for income tax, lead to the emergence of a permanent difference and the corresponding permanent tax liability (PNO) (clauses 4, 7 of the Accounting Regulation " Accounting for corporate income tax settlements” (PBU 18/02), approved by Order of the Ministry of Finance of Russia No. 114n dated November 19, 2002).

Example 3

Let's use the conditions of example 2. Let's say that the employee's salary is 60 thousand rubles. The organization adheres to the official point of view. Then, for the purpose of taxing profits, you can take into account 12,000 rubles. (60,000 rubles x 20%).

The following entries must be made in the accounting records on a monthly basis:

Debit 76, Credit 51 - 20,000 rubles. - the rent for the apartment is listed; Debit 20 (26, 44), Credit 70 - 120,000 rubles. - taking into account the cost of remuneration of the employee; Debit 99, Credit 68-PNO - 1600 rubles. (20,000 rubles - 12,000 rubles) x 20%) - reflected PNO; Debit 70, Credit 76 - 20,000 rubles. - reflected the cost of rent paid for the employee, on account of wages; Debit 70, Credit 68-NDFL - 2600 rubles. (20,000 rubles x 13%) - personal income tax was withheld from income in the form of wages made in kind, when wages were paid to the employee in cash.

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”.