Renting housing for an employee: personal income tax and insurance premiums. Compensation for rental housing: who is entitled to and how to receive compensation for sublease

Many citizens, due to the specific nature of their work, are forced to change their place of residence frequently. This issue requires special attention on the part of the employer. In the case of military and civil servants, the state acts as the employer.

The legislation establishes that persons arriving in another settlement must be provided with official housing. If the state structure does not have such an opportunity, the only way out is to rent an apartment, for which you can then receive compensation.

Concept definition

Monetary compensation for renting service housing is a form of social support that allows military and civil servants to exercise the right to receive free housing while on duty away from their permanent residence.

Article 15 of the Federal Law "On the status of the military" guarantees the military who arrived at a new place, the provision of housing. According to this law, the military, along with their families, must be provided with housing before they receive an apartment according to regulated standards. If the unit does not have a suitable apartment, it independently rents a room for a military family. At the request of the employee, compensation for rent may be paid in the manner prescribed by law.

Sub-rental compensation

The regulatory legal act regulating the provision of compensation for military housing is Government Decree No. 909 of December 31, 2004, subsequently supplemented by Order of the Ministry of Defense No. 235. The procedure for compensation of rented housing to civil servants is regulated by the Decree of October 27, 2012 No. 1103.

The amount of compensation depends on the amount specified in the rental agreement.

The payment cannot exceed the limit values ​​fixed in various regions of the Russian Federation. In Moscow and St. Petersburg, the compensation is 15,000 rubles, in large cities - 3,600, in other settlements - 2,700.

The amount is increased by 50% if the soldier lives with three or more family members.

The order of the Ministry of Defense regulates individual cases. So, for example, in the event of the death of a serviceman while serving, a family consisting of at least four people is also entitled to compensation.

Who is supposed to?

The category of recipients includes the military - citizens of the Russian Federation, employees under the contract, and members of their families. Citizens of the Russian Federation, dismissed from service, and families of such persons can count on the funds. It should be borne in mind that providing a contract soldier with a service apartment retains his right to permanent housing.

Compensation is also due to employees of the following departments:

• FSIN;
• Federal Fire Service;
• drug control authorities;
• customs authorities of the Russian Federation;
• police departments.

Compensation for the sub-rent of a police officer's housing is regulated by the Federal Law "On Social Guarantees for Police Officers".

Payment period

The Constitutional Court, in its ruling of February 27, 2012 No. 3-P, indicates that the military are entitled to receive compensation for renting an apartment, regardless of the period of their registration. The resolution states that the reimbursement of funds spent on rental housing is of a transitory nature until the provision of office or own living space.

The Decree specifies the terms for making payments to military personnel:

• - citizens of the Russian Federation serving under a contract, and their relatives. Payments are made from the date of signing the rental agreement, but not before the contractor is included in the list for the provision of housing in a specialized housing stock. The accrual of money ends from the month before which the grounds for receiving funds were lost.
• For Russian citizens dismissed from service and their families. Payments are terminated from the month before which the dismissed citizen lost the right to receive funds.

Calculation

The procedure for payments is reflected in the Decree of the Russian Federation of September 18, 2015 No. 989. In particular, the procedure for calculating payments to the Russian military with the rank of officer, ensign or midshipman has been changed. The payment is made in the amount of actual costs, but not more than the amounts established on the basis of the norms for the area of ​​​​the apartment, and the maximum allowable cost of renting 1 m 2 of the total area of ​​​​housing, annually established by the Ministry of Labor of the Russian Federation.

The norms for the area of ​​housing for calculating payments are established in the amount of:

• 24 m2– one contractor or a dismissed person;
• 36 m2- for a married couple;
• 43 m2– for a family of three;
• By 12 m2- for each family member, if there are four or more people in it.

Also established are the maximum allowable amounts of cash payments to soldiers, sergeants, sailors or foremen serving under a contract or dismissed from service.

In Moscow and St. Petersburg, these amounts reach 15,000 rubles, in large cities - up to 3,600 rubles, in other settlements - up to 2,700. If there are four or more people in a family, payments increase by 50%.

If the amounts of payments to officers, warrant officers and midshipmen turn out to be less than the specified limits, compensation will be made in the amount of actual costs.

The payment standards are updated every year and are tied to each region.

So, for example, in 2019, for a family of three military people with the rank of officer, ensign or midshipman, payments for renting housing will be:

• in Rostov-on-Don: 43 m 2 * 324.97 (according to the standard) = 13973.71 rubles;
• in Moscow: 43 m 2 * 482.99 (according to the standard) = 20768.57 rubles.

How to get a?

Upon arrival at the military unit, the military and members of his family must be registered at the new place of residence (at the address of the military unit). To receive compensation, you need to register and go through a commission. The Commission, based on the submitted documents, makes a decision on the provision of funds.

Compensation can also be assigned retroactively, i.e. the money paid for the rental itself is reimbursed before a decision on payment is made. When determining the procedure for assigning payments, the commission, in addition to Regulation No. 909, also focuses on the Instruction on the provision of service housing to military personnel No. 1280.

Applicants for compensation submit a report to the commander of the unit, where the following must be indicated:

• date of arrival at a new place;
• the name of the settlement where the housing is rented;
• rental size.

Also, the report must be informed about the expiration of the contract.

A bank account is opened in the name of the serviceman, to which money will be received every month. If the composition of the family increases, the compensation also increases. When the second child is born, the contractor submits a report along with an updated family statement and a copy of the birth certificate.

Personal account numbers are stored in the financial authorities of the military unit. This is necessary to ensure proper control over the spending of funds. It should be noted that if a contractor rents an apartment from relatives, the right to receive compensation still remains. In this case, a housing contract is also drawn up, the same package of documents is submitted and an account is opened.

The legislation does not provide for the registration by the tenant of the lease agreement with the tax and state registration authorities.

Payments for housing rent by the military and their families are made every month through the financial and economic units at the place of service on the basis of an order from the command.

In case of violation of the right to compensation, you can contact the military prosecutor's office at the place of service. You can submit collective applications.

Collection and submission of documents

The set of documents required to receive monetary compensation for renting housing is determined by order of the Ministry of Defense of the Russian Federation of June 16, 2005 No. 235.

The decision on payment is made on the basis of a package of documents, including:

• report;
• a photocopy of the rental agreement, which reflects the area of ​​​​the apartment and the cost of renting;
• certificates from the military unit, reflecting the composition of the family of the contractor;
• extracts from the order on the enlistment of a contract soldier in the list of personnel of the unit;
• photocopies of passports of the military and family members with stamps of registration in a new place;
• birth certificates (for children under 14).

The command cannot require additional documents, since this is an exhaustive list in accordance with the law.

Possible reasons for refusal

The Decree of December 31, 2004 No. 909 and the Order of the Ministry of Defense of December 30, 2010 No. 1280 "On the provision of housing to the military" states that reimbursement for the cost of renting housing is paid to Russian military contractors and their families who are not provided with suitable housing . Payments are made at the expense of the Ministry of Defense of the Russian Federation in the amounts indicated in the employment contract, but not more than the established limits.

From this norm it follows that one occupation of the queue for a service apartment is not enough.

It is necessary that there is no suitable living space in the department. In this case, the serviceman will be able to rent housing and receive compensation for it.

If the service housing provided does not meet the established standards, the military may refuse it. This cannot be grounds for refusing the subsequent payment of sublease. In such a situation, the refusal must be challenged. In addition, the refusal of a contractor from the proposed apartment is not a reason for excluding him from the queue. You can refuse housing as many times as it is offered, but the refusal must be argued.

The most common reason for refusal to provide compensation is an incomplete set of submitted documents or incorrect execution of one of them. A serviceman must be deregistered at the previous place of residence and register at a new place without fail. If these conditions are met, the likelihood of refusal to reimburse the cost of renting housing is minimal.

What to do when fired?

All military personnel are entitled to compensation, regardless of when they were discharged, provided that they cannot be provided with housing. Through such measures, social injustice in the army in relation to persons dismissed from service and recognized as needy is eliminated.

The procedure for paying compensation to retired military personnel and members of their families recognized as in need of housing is determined by Resolution No. 909. When such citizens change their place of residence, if it is impossible for them to obtain housing, the authorized bodies make a decision on the payment of funds.

Payments are made every month on the basis of a written lease agreement.

The provision of funds is terminated from the month before which the citizen was dismissed and thus lost the basis for receiving funds (FZ "On the status of military personnel").

Cash payments to the families of the dismissed and those who died after the dismissal of employees are made within one year from the moment of the death of a citizen. In general, the amount and procedure for receiving compensation are the same as for active contractors.

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 amount paid by the organization for a nonresident or foreign employee is 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 and 2 of Article 226 of the Tax Code of the Russian Federation) and must withhold tax from cash payments to the employee, in particular from the salary (but not more than 50% of it) (Item 4 of 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 housing rent for an employee is necessary, 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 so by virtue of the Law (Clause 5, Article 16 of the Federal Law of July 25, 2002 N 115-FZ "On the Legal Status of Foreign Citizens in the 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, the accrual of personal income tax in such a situation should not be discussed 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 "i" clause 2 of part 1 of article 9 of the Federal Law of July 24, 2009 N 212-FZ "On insurance premiums ..." (hereinafter - 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.

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.

The state makes sure that its defenders and their families are provided with housing. Mortgage and subsidy programs are being developed, and appropriate funds are being transferred to the savings accounts of officers.

However, until such time as it will be possible to acquire their own apartment, military personnel also need to live somewhere. As a rule, you have to rent an apartment or a house, which leads to additional expenses. These funds are partly compensated by the state through sub-rental.

Let's look at how sublease is carried out in 2019.

General concept of sublease

Conditions for renting apartments in 2019

• through the lease of municipal apartments by the military unit;
• construction of own residential buildings by the Ministry of Defense;
• issuance of a mortgage loan.

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Today, the real estate industry is developing quite actively, offering various services to the consumer. 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, an employee and a manager, as a rule, discuss the possibility of business trips, frequent trips, or even moving to a permanent place of 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 without fail, the contract must 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 and others

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 funds 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.

The payment of compensation for sub-rent to citizens who are recognized as socially unprotected is carried out when a person applied to the social protection authorities to be recognized as in need of improved 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.