Proper registration of housing compensation for a nonresident employee. Renting housing for an employee: who and what taxes pays

WARNING THE MANAGER Even if the organization will reimburse the employee for the cost of renting housing in accordance with the employment contract, the tax authorities can exclude these amounts from “profitable” expenses. Therefore, it is safer to rent premises yourself to provide workers with housing. Then the rental expenses reimbursed to the employee cannot be taken into account in reducing the income tax base. 29 Art. 270 of the Tax Code of the Russian Federation; paragraph 1 of the Letter of the Ministry of Finance of March 17, 2009 No. 03-03-06 / 1/155; Clause 2 Letters of the Federal Tax Service No. BE-22-3 dated 12.01.2009 / The amount of compensation must be subject to personal income tax, since such compensation is not included among the payments not subject to this tax Letter of the Ministry of Finance dated 05.15.2013 No. . Insurance premiums for the amount of compensation will have to be calculated, since it is paid within the framework of an employment relationship. 1 st. 7 of Law No. 212-FZ; paragraph 1 of Art. 20.1 of the Law of July 24, 1998 No. 125-FZ; FSS letter dated 11/17/2011 No. 14-03-11 / 08-13985; P.

How is employee rent reimbursed?

And once the court agreed with this, Decree 13 AAS of 05/07/2013 No. A21-10270 / 2012. At the same time, it is important to understand: the legislation does not say that the employer is obliged to pay the employee, among other things, the lifting and housing. Therefore, the regulatory authorities will certainly not agree that rent, reimbursed to the employee for several months or even years, are lifting, provided for by labor legislation.

Important

Accordingly, disputes with tax authorities when applying approach 2 are very likely. *** Almost a third of the surveyed applicants (29%) have at least once received an offer from potential employers to move to another locality. This means that relocation is becoming an increasingly common practice in the labor market. Other articles of the Glavnaya Kniga magazine on the topic "Rent": 2018

Taxation of compensation for rental housing to an employee

Thus, if the payment for housing is provided for in the employment contract as part of the salary and its specific amount is established, then such a payment is integral part earnings in kind. The construction company has the right to take it into account for the purposes of taxation of profits as part of labor costs as wages in kind. But only in an amount not exceeding 20 percent of the accrued monthly salary of the employee.

Attention

Since, according to Article 131 of the Labor Code of the Russian Federation, the in-kind form of wages cannot exceed the specified limit. Such conclusions are contained in the letters of the Ministry of Finance of Russia dated March 19, 2013 No. 03-03-06 / 1/8392, dated May 18, 2012 No. 03-03-06 / 1/255, dated May 2, 2012 No. 03-03 -06/1/216, dated January 17, 2011 No. 03-04-06/6-1 (clause 1 section II). And also the Federal Tax Service of Russia for Moscow dated March 24, 2009.

Apartment rental for employees

Info

N.G. Bugaeva, economist What are the tax implications for the company? We thank the accountant Svetlana Kostyrenko (Komi Republic, Usinsk) for suggesting the 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.

Rental housing for workers

The grounds and documents that can be used to prove that the organization's expenses for rental housing comply with the requirements of Article 252 of the Tax Code of the Russian Federation are shown in the table. What will help confirm the organization's housing costs Grounds Documents The need to hire a nonresident (foreign) employee, the lack of housing at the location of the organization; the need for his constant presence at the place of production due to the duties performed; Ensuring the fulfillment of the employee's labor function Employment contract with the condition that the employer provides (pays for) housing; housing lease agreement; transfer act of the residential premises; payment documents; regulation on the procedure for providing housing to employees; orders for the provision of apartments to employees at the construction site with the address and length of residence, etc.

What documents are needed for housing compensation

Payment of a social nature If the indicated expenses are not a form of remuneration and are social character, according to the financial department, it is impossible to take them into account when calculating profits. Moreover, regardless of whether they are provided for by employment contracts or not (clause 29, article 270 of the Tax Code of the Russian Federation). 1.7.1.3. Arbitration practice Courts do not share the point of view of officials.

In their opinion, Article 131 of the Labor Code of the Russian Federation cannot regulate tax legal relations and establish any restrictions in relation to them. This is indicated in the resolution of the Federal Antimonopoly Service of the Central District dated September 29, 2010 No. A23-5464 / 2009A-14-233. It also notes the following. The list of payments provided for by the labor (collective) agreement in favor of the employee, which are taken into account when calculating income tax, is open.

Renting rules: payment for the accommodation of an invited employee

Question Is the organization entitled to pay for the employee's housing? (Lease agreement with option to purchase Director General), if he does not have other housing on the territory of the Russian Federation and consider these payments as part of the company's expenses? Answer Yes, the organization has the right to pay for the employee's housing. The organization has the right to establish any additional payments to employees (social package), based on its financial capabilities, and fix them in local documents (collective agreement, regulation on remuneration, employment contract, other internal documents). This conclusion follows from the provisions of Articles 40, 41 and 135 of the Labor Code of the Russian Federation.

Regulatory authorities do not object to recognizing the costs of paying rent for housing as expenses that reduce profits. But only if they are formalized as part of the wages and this is fixed in the employment contract.

Employee housing expenses

Compensation for housing costs for periods when the employee was not on the staff of the organization (an employment contract was not concluded with him) is not taken into account when calculating income tax (letter of the Ministry of Finance of Russia dated March 19, 2013 No. 03-03-06 / 1 /8392). If the payment of compensation is not provided for in the employment contract, but in other documents (for example, in a collective agreement), the standard of 20 percent for the payment of wages in kind may not be observed. However, in this case, the cost of compensation cannot be taken into account when calculating income tax.
In the opinion of the regulatory authorities, if compensation is not provided for by the employment contract, the organization has no reason to equate it with payments for the amount of work actually performed. Such compensation should be qualified as other payments made in favor of the employee, not related to his job duties (clause 29 of Art.

You can verify these costs. travel tickets, hotel bills, contracts for renting apartments, etc. Secondly, payment for housing at the expense of the organization should be provided for in labor contracts concluded with nonresident (foreign) employees. The regulatory authorities consider that compensation for the cost of housing and travel of employees who permanently reside in another area (with the determination of the specific amount of such compensation) is part of their salary, issued in kind.

When calculating income tax, labor costs are taken into account if they are provided for by employment contracts (Article 255 of the Tax Code of the Russian Federation).

Compensation for rental housing to employees what documents

Consider a sample list of these documents:

• The lease agreement, which contains all the related information: the full name of the landlord and tenant, the cost of rent, the address of the housing.
• Rent payments (for example, receipts for receipt of funds for renting a home).

IMPORTANT! It is desirable that the need to compensate for the cost of rent is stipulated in the employment agreement. ATTENTION! If the lease agreement is concluded for a period of more than a year, it must be registered with Rosreestr. How to treat rent expenses for tax purposes There are two approaches to accounting for rent expenses.
Let's consider each of them. The most legal, but difficult way According to the supervisory authorities, compensation for rental housing is wages in kind. It is one of the elements that generates an employee's income.

Valuable employees are often invited to work from other regions or countries. And vice versa - they are sent on business trips to other enterprises. In these cases, organizations rent housing for specialists. If the employee himself paid for his housing, then he is entitled to compensation for rent.

Types of rental payments

There are various ways to provide housing for employees. Some organizations rent their own premises. It can be several apartments at once. Most often, they are located near the subway, so that it is more convenient for the employee to get to work. But the most popular option is when a person chooses his own living space, and the company pays rent compensation to the employee. For example, in the form of an increase in salary or transfers to his account an amount equivalent to the cost of rent per month.

Renting an apartment is cheaper than renting a hotel room, if it is supposed to long term rent. Sometimes the company has a base of apartments from which you can choose, in other cases you have to act on your own.

When planning a lease from a private person, a contract or other agreement based on section 671 should be drawn up. It should be borne in mind that the apartment is intended only for the residence of employees, and a contract concluded for a period of more than a year is subject to state registration. All lease agreements must be in writing.

If there are agreements between the employer and the employee on partial compensation for renting housing, then in lease agreement must be the amount approved by the parties. And the rest is a separate agreement.

If the company itself finds and pays for an apartment for an employee, then the amount of rent can become part of the employee's salary, but in kind. By law, its value should not exceed 20% of total earnings. In a situation where the employee finds housing himself, compensation for renting housing may be part of the salary in cash.

Travel expenses reimbursement

In a situation where an employee is sent to another locality, housing can also be rented to him. In this case, compensation for the cost of housing and utility costs is added to the total composition of the employee's travel expenses.

If the employer independently selects and rents premises for employees, then PIT L is withheld from payments to the landlord. Payments can be accounted for as part of wages, social benefits, or rent directly.

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 necessary conditions to provide housing for the 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 attracts in accordance with the procedure established by the legislation of the Russian Federation foreign citizens for work, 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 judgments on the issue being analyzed.

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).

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 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 dated July 25, 2002 “On legal status foreign citizens in the Russian Federation”.

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

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

Social reimbursement for housing costs

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

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

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

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

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

Employee Housing: Reimbursement

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

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

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

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

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

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

Two approaches are possible here.

APPROACH 1 (safe, but not the most profitable)

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

WARNING THE MANAGER

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

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

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

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

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

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

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

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

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

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

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

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

CONCLUSION

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

The organization reimburses the employee for rent

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

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

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

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

APPROACH 1 (safe but disadvantageous)

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

WARNING THE MANAGER

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

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

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

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

IN accounting there will be the following lines.

APPROACH 2 (risk but rewarding)

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

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

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

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

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

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