If a foreign citizen works without an employment contract. How to correctly hire a foreigner with a patent

Our reader Aleksey Rybin helped migrants from Ukraine to issue permits giving the right to work in Russia - they registered with the migration register, acquired a voluntary medical insurance policy, and filed a patent.

And then - work as home helpers. But then the question arose: how competently and legally to formalize the relationship between the owner of the house and the assistants. Such questions for "RG" are not uncommon lately. We addressed them to employees of the Federal migration service (FMS) and lawyers in the field of labor law. And here are the tips we received.

Clause 1 - contract

As the lawyer of the Center for Social and Labor Rights Yuri Starodumov told "RG", the employer must conclude an agreement with the people he hires. And here there are two options: the contract can be labor or civil.

If it is an employment contract that is concluded, and this is a document that presupposes a long-term employment relationship, work in a specific profession and according to a specific schedule, then the employer must, firstly, register it with local governments, and secondly, keep real accounting, because he will have to make monthly contributions for the migrant to the Pension Fund of Russia (PFR) in the amount of 22% of the amount that he pays to a domestic worker, and to the Social Insurance Fund - 1.8%.

To do this, he will have to register with the territorial office of the Pension Fund of Russia within 30 days from the date of the conclusion of the contract and within 10 days with the Social Insurance Fund. Then make monthly contributions there - no later than the 15th day of the month following the month the salary is paid. And on a quarterly basis, no later than the 15th day of the second month following the quarter, submit to the Pension Fund of the Russian Federation a calculation of the accrued and paid contributions for compulsory pension insurance and no later than the 20th day of the month - a similar calculation to the Social Insurance Fund.

When concluding an employment contract, the employer must keep records

If a civil law contract is concluded, and it involves the performance of some work, while the employee does not administratively obey the employer and can work in a free schedule, if only there is a result, then the employer's life is greatly facilitated. A civil contract does not need to be registered with the municipality, and if it is concluded, the employer is not obliged to make deductions for the employee to social funds. Although the law allows him to do this on a voluntary basis.

Dmitry Demidenko, Deputy Head of the Department for Organization of Work with Foreign Citizens of the FMS of Russia, explained to RG that when concluding a contract - labor or civil - the employer, be it an individual or a legal entity, must notify the FMS within three days. The mechanism is the same as when registering for a migration registration - he can do it either by mail or by personally contacting the territorial subdivision of the FMS of Russia. The same applies to the termination of labor relations - information about this must be immediately transmitted to the migrant workers, as well as notification of a change in the period of stay of a foreigner.

It should be noted: when a migrant works for natural person, he is not obliged to provide the FMS with a copy of the employment or civil law contract. It is enough that the employer himself notifies this department of their presence.

Only! And the employer should not go anywhere else, neither register himself, nor report to any departments.

Item 2 - money

The employer's task is to pay the employee a salary. Its size is fixed in the contract. If he is a worker and it is assumed that the employee will work the prescribed 40 hours a week, then the wages should not be lower than the minimum wage (5965 rubles per month). Any amount can be specified in a civil contract.

There is no need to pay income tax for a migrant. In fact, he does it himself, regularly paying for the patent (for example, in Moscow it is 4 thousand rubles a month). You can make deductions both monthly and for future use - by paying immediately for several months or a year in advance. The term of the patent is a year, but if the migrant regularly pays for it, its validity can be extended for another year. But late payment can lead to the cancellation of the patent. This means that the work of a guest worker will become illegal. A labor migrant is not obliged to make contributions to social funds for himself. Although, if desired, it can.

3 days are given to the employer to notify the FMS about the employment of a foreigner

These rules apply to all "visa-free" foreigners from the CIS who work in Russia under a patent from individuals.

Dear Marijana! Hello! It makes no difference whether you conclude an employment contract or a civil law contract with a foreign citizen - you still pay taxes and fees in both cases, and regardless of which contract - you must have permission to attract and use foreign workers (see article 13 of the Federal Law of 25.07.2002 No. 115-FZ "On legal status foreign citizens in Russian Federation»).

Please also keep in mind that according to part 8 of article 13 of the Law

The employer or customer of work (services) attracting and
using for the implementation of labor activities of a foreign citizen,
are obliged to notify the territorial body of the federal executive body
authorities in the field of migration in the constituent entity of the Russian Federation, on the territory of which
the foreign citizen carries out labor activity, about the conclusion and
termination (termination) with this foreign citizen employment contract
or a civil law contract for the performance of work ( service) on time,
not exceeding three working days from the date of conclusion or termination (termination)
the corresponding agreement.

The specified
in the first paragraph
of this paragraph, the notification may be sent by the employer or the customer
works (services) to the territorial body of the federal executive body
in the field of migration on paper or submitted in the form electronic document
using public information and telecommunication networks, in
including the Internet, including a single portal of state and municipal
services.

The second case is quite controversial, since if in your relationship it is precisely "labor relations" that will be perceived, then there may be negative consequences (see Article 5.27 of the Administrative Code of the Russian Federation). In addition, how do you distinguish between individual entrepreneurs and non-individual entrepreneurs?

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Lawyer, Yekaterinburg

• 9.3 rating
• expert

If I am not as an individual entrepreneur, but as a private person, will I hire him? (provided that the patent states that he can work for a private person) Can I, as a private person, hire an assistant who will also perform courier services for me? Or, having the status of an individual entrepreneur, I cannot hire a person as an individual? And will this not raise a question from the inspection authorities (tax or FMS) that, in fact, the person hired by me performs services for me, for which I conduct my main activity, for which I pay taxes (for myself). Do I have to pay personal income tax for a person whom I hired as an individual, and not as an individual entrepreneur Mordvinkin?
Maryana

Maryana, you can take a foreigner with a patent as an individual, if the patent establishes such a possibility.

The Moscow Office of the Federal Tax Service has reviewed your Internet appeal dated 05.19.2015 and reports the following:
The legal status of foreign citizens in the Russian Federation is determined by the Federal Law of 25.07.2002 "On the Legal Status of Foreign Citizens in the Russian Federation" (hereinafter - Law No. FZ-115).
According to subparagraph 1 of paragraph 1 of Article 227.1 of the Tax Code of the Russian Federation (hereinafter referred to as the Code) (as amended by Federal Law No. 368-FZ of November 24, 2014), foreign citizens engaged in labor activities hired by individuals for personal, domestic and other similar needs, not related to entrepreneurial activity, on the basis of a patent issued in accordance with Law No. ФЗ-115, they calculate and pay tax on income received from the implementation of such activities, in the manner prescribed by Article 227.1 of the Code.
In accordance with paragraph 2 of Article 227.1 of the Code, fixed advance tax payments are paid for the period of validity of the patent in the amount of 1200 rubles per month, taking into account the provisions of paragraph 3 of Article 227.1 of the Code.
In accordance with paragraph 2 of Article 227.1 of the Code, the amount of fixed payments specified in paragraph 2 of this article is subject to indexation by the deflator coefficient established for the corresponding calendar year, as well as by the coefficient reflecting the regional characteristics of the labor market established for the corresponding calendar year by the law of the subject Russian Federation.
By order of the Ministry of Economic Development of Russia dated October 29, 2014 No. 685, deflator coefficients for 2015 were approved. For personal income tax purposes, this coefficient is 1.307.
Article 1 of the Law of the City of Moscow dated November 26, 2014 No. 55 “On the Establishment of a Coefficient Reflecting the Regional Features of the Labor Market in the Territory of the City of Moscow” establishes a coefficient reflecting the regional features of the labor market in the amount of 2.5504.
Thus, in 2015, advance payments for personal income tax for these foreign citizens are 4000 rubles per month (1200 rubles x 1.307 x 2.5504).
On the basis of paragraph 4 of Article 227.1 of the Code, a fixed advance tax payment is paid taxpayer at the place of his activity on the basis of the issued patent, before the day of the beginning of the term for which the patent is issued (extended), the patent is reissued.
According to paragraph 2 of Article 2 of the Federal Law of November 24, 2014 No. 368-FZ "On Amendments to Articles 226 and 227.1 of Part Two of the Tax Code of the Russian Federation" before the expiration of the period for which they were issued (extended) until the date of entry into force of this Federal Law patents to foreign citizens engaged in labor activities for hire from individuals on the basis of an employment contract or a civil law contract for the performance of work (provision of services) for personal, household and other similar needs not related to the implementation of entrepreneurial activities, or until the cancellation of these patents, calculation and the payment of tax in the form of fixed advance payments is carried out in accordance with the procedure in force before January 1, 2015.
According to paragraph 3 of paragraph 3 of Article 224 of the Code, when calculating the total tax on the income of a foreign citizen carrying out labor activities specified in Article 227.1, a tax rate of 13% is applied.
In accordance with paragraph 5 of Article 227.1 of the Code, the total amount of tax on income of taxpayers engaged in employment for individuals is calculated by them taking into account the fixed advance payments paid for the patent validity period in relation to the relevant tax period.
If the patent was issued (extended) after January 01, 2015 and the income of a foreign citizen per month amounted to 30,769 rubles. (the amount of income is indicated on the basis that 4,000 rubles is 13% of this value), then from the amount exceeding such income, it is necessary to pay personal income tax.
Personal income tax is calculated by the taxpayer on my ownbased on a tax return.
The obligation to submit a tax return on personal income tax for foreign citizens who work on the basis of a patent is established by Article 229 of the Code.
From the provisions of paragraph 1 of Article 229 of the Code, it follows that the tax return is submitted by the taxpayers specified in Articles 227, 227.1 and 228 of the Code no later than April 30 of the year following the expired period.
Clause 6 of Article 227 of the Code establishes that the total amount of tax payable to the relevant budget, calculated in accordance with the tax declaration, is paid at the place of registration of the taxpayer no later than July 15 of the year following the expired tax period.

Thus, personal income tax in the case when it is hired by an individual, is paid by the taxpayer himself, who also draws up the declaration on his own.

Your problem will be that you will not be able to indicate the activity that the foreigner will actually carry out - this can lead to the fact that your employee will still be an employee of an individual entrepreneur, and not an individual.

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Hello.

Maryana

You must notify the FMS about the conclusion, termination of a civil law contract within a period not exceeding 3 working days from the date of the conclusion or termination of such an agreement.

You will be obliged to pay contributions in any case if you conclude both an employment and a civil law contract with a foreigner. Contributions to the Pension Fund will have to be calculated on the insurance part of the pension at a rate of 22 percent.

If I am not as an individual entrepreneur, but as a private person, will I hire him?
Maryana

In this case, the foreign worker himself will have to file a declaration and pay tax.

But here it is quite problematic, since in fact courier services will be carried out specifically for individual entrepreneurs.

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Lawyer, Kurganinsk

• 9.0 rating
• expert

Hello Maryana!

1) If I hire a foreigner with a patent as a courier and draw it up under an employment contract, then everything is clear: I have to register as an employer and pay for it to the Pension Fund of the Russian Federation, FSS and personal income tax, I have to withhold and pay from him. But what if I take a foreigner with a patent under a GPC agreement? Do I need to register with the Pension Fund and the FSS as an employer? After all, I will not pay anything there? Will I pay only personal income tax? Or I'm wrong? At the same time, will I be able to reduce my STS tax by the amount of deductions to funds in full?
Maryana

There is no difference under which contract (labor or GPC) you make payments to an individual. In any case, these payments are subject to insurance premiums. More details:

(as revised on 13.07.2015)

Article 7. Object of taxation of insurance premiums for payers of insurance premiums making payments and other remuneration to individuals
1. The object of taxation of insurance premiums for payers of insurance premiums specified in subparagraphs "a" and "b" of paragraph 1 of part 1 of Article 5 of this Federal Law are payments and other remuneration accrued by payers of insurance premiums in favor of individuals within the framework of labor relations and civil law contracts, the subject of which is the performance of work, the provision of services, under contracts of author's order, in favor of authors of works under contracts for the alienation of the exclusive right to works of science, literature, art, publishing licensing contracts, license contracts for granting the right to use a work of science, literature, art, including remuneration accrued by rights management organizations on a collective basis in favor of the authors of works under contracts concluded with users (with the exception of remuneration paid to persons specified in clause 2 of part 1 of article 5 of this Federal Law). The object of taxation of insurance premiums for payers of insurance premiums specified in subparagraph "a" of paragraph 1 of part 1 of article 5 of this Federal Law is also payments and other remuneration accrued in favor of individuals subject to compulsory social insurance in accordance with federal laws on specific types compulsory social insurance.
(as amended by Federal Laws of 08.12.2010 N 339-FZ, of 03.12.2011 N 379-FZ)
2. The object of taxation of insurance premiums for payers of insurance premiums specified in subparagraph "c" of paragraph 1 of part 1 of Article 5 of this Federal Law are payments and other remuneration under labor contracts and civil law contracts, the subject of which is the performance of work, the provision of services, paid by payers of insurance premiums in favor of individuals (with the exception of remuneration paid to persons specified in clause 2 of part 1 of article 5 of this Federal Law).

Maryana

Again, there is no difference. Both as an individual entrepreneur and as an individual you remain a payer of insurance premiums. More details:

Federal Law of 24.07.2009 N 212-FZ
(as revised on 13.07.2015)
"On insurance contributions to the Pension Fund of the Russian Federation, Social Insurance Fund of the Russian Federation, Federal Mandatory Medical Insurance Fund"

Article 5. Payers of insurance premiums
1. Payers of insurance contributions are policyholders determined in accordance with federal laws on specific types of compulsory social insurance, which include:
1) persons making payments and other remuneration to individuals:
a) organizations;
b) individual entrepreneurs;
c) individuals who are not recognized as individual entrepreneurs;

Was the lawyer's answer helpful? + 0 Maryana

As colleagues correctly noted, you must pay insurance premiums in any case - even if you hire a foreign worker under an employment contract, even under a GPC agreement. At the same time, contributions are paid to the Pension Fund - 22% and to the Social Insurance Fund - 1.8%. If you hire an employee as an individual entrepreneur, you will be a tax agent in relation to personal income tax. In this case, the amount of personal income tax, at the request of the employee, is reduced by the advance payments paid by him.

Your tax under the simplified tax system, if your object of taxation is income (6%), you can reduce by the amount of paid insurance premiums both for the employee and for yourself (that is, you add up), but not more than 50% (Article 346.21 Tax Code of the Russian Federation).

2) If I am not as an individual entrepreneur, but as a private person, will I hire him? (provided that the patent states that he can work for a private person) Can I, as a private person, hire an assistant who will also perform courier services for me? or having the status of an individual entrepreneur, I cannot hire a person as an individual? And will this not raise a question from the inspection authorities (tax or FMS) that, in fact, the person hired by me performs services for me, for which I conduct my main activity, for which I pay taxes (for myself). Do I have to pay personal income tax for a person whom I hired as an individual, and not as an individual entrepreneur Mordvinkin?
Maryana

If you hire an employee as a physical. person, you will pay the same fees for him as if you were an individual entrepreneur. The only difference is that the employee will have to calculate and pay personal income tax on his own.

And further! Within 3 days of the conclusion of the employment contract, you must notify the FMS about this (in any case: even as you hire an individual entrepreneur, even as an individual, even under an employment contract, even under a GPC agreement).

If you hire under an employment contract as an individual, you must also register the contract with the local government at your place of residence in accordance with Art. 303 of the Labor Code of the Russian Federation.

But if, in fact, your employee will carry out functions related to your entrepreneurial activity, then as an individual you cannot hire him. Individuals hire workers only to perform work / provide services for personal needs, not related to entrepreneurship.

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Groups of foreigners

There are several groups of foreigners who can be hired by an employer. The first group is foreign citizens who live in the territory of Russia. They have a residence permit or a temporary residence permit. The second group - the most numerous - is foreign citizens who temporarily stay in our country. It is divided into two subgroups. First, there are visa-free foreigners. To countries with visa-free regime entry to Russia for work includes all CIS states (except for Georgia and Turkmenistan). It is these foreigners who form the bulk of builders, auxiliary workers, janitors and sellers. Secondly, there are visa foreigners - those who must obtain a visa to enter Russia. The conditions for applying for and hiring these people are different.

Living in Russia

The easiest option for an employer is to hire foreigners who live in Russia with a residence permit or temporary residence permit. Since 2013, everything has become very simple: these people do not need to obtain work permits, and the employer does not need quotas and permits to attract foreign work force... A foreigner is registered for work in the same way as a citizen of Russia, taxes and various deductions are paid in the same way. So far, many entrepreneurs are afraid to hire such employees, because they do not understand how to properly arrange them. But in fact, if you have a temporary residence permit or a residence permit - welcome to work.

Visa-free foreigners

When visa-free foreigners the employer does not need a permit to attract labor, but must obtain a quota. To do this, the employer must apply to the Federal Service for Labor and Employment with a statement, which indicates how many foreign workers of which professions and from which countries he needs.

All the rights that the law gives to Russians, it gives
and foreign workers
under an employment contract

The decision to issue quotas within a month is made by an interdepartmental commission, including the Federal Migration Service and the Department of Labor and Employment. There is no legally prescribed limit on the number of foreign workers for one employer: it all depends on the size of the company, the professions he asks for, and other factors. The quota is distributed after May of each year, so you need to apply from January to May at the beginning of the year. From point of view labor migrant the hiring procedure looks like this: he comes to Russia and stands on migration registration, then negotiates with the employer on working conditions, signs an employment contract with him, passes medical commission and fingerprint registration and goes with these documents to the migration service. The FMS decides whether to issue him a work permit within the quota or not. The employer can issue a work permit for a foreigner himself by submitting the required package of documents to the migration service.

Visa foreigners

The situation with visa foreigners is a little more complicated. The employer must first obtain a quota, and then apply to the migration service with an application in order to obtain permission to attract foreign labor. Obtaining permission to attract foreign workers is a paid operation. The employer pays about 5 thousand rubles for each foreign worker whom he wants to hire and he himself submits a package of documents for obtaining a work permit. A foreigner only needs to obtain a work visa on the basis of an invitation from the employer, after entry to undergo a medical commission and fingerprint registration (fingerprints).

Notification

After a foreigner receives a work permit, the employer must notify the FMS that the employee has been hired, an employment contract has been signed with him and he has begun work. The fact is that the employment contract with which the foreigner went to obtain a permit was of a preliminary nature. If his work permit had been refused, the contract would not have entered into force. The employer is obliged to notify the FMS and the employment center in writing, but it is better to do this in person. A mark in the detachable part of the notification will serve as the fulfillment of all the employer's obligations to notify state bodies. This mark is affixed either by a government agency or by the Russian post.

Features of the employment contract

In Russia, labor legislation applies equally to foreigners and Russians. All the rights that the law gives to Russians, it also gives to foreign workers. However, an employment contract with a foreigner has one peculiarity: it is signed for the duration of the work permit. There is also an opinion that it can be indefinite and automatically terminates when the work permit expires. This is because one of the grounds for terminating an employment contract under the Labor Code is that the employee's special right expires.

Patent

Many employers, especially individual entrepreneurs, misunderstand the possibilities of using a patent, thinking that it can replace a foreigner with a work permit. The confusion stems from the fact that in accordance with the law on the status of foreign citizens, Russians have the right to hire visa-free foreigners who have received a patent for personal, domestic and other similar needs. For example, you can hire a Tajik to renovate your apartment. However, a patent gives a foreigner the right to work only for an individual, and not for an organization or individual entrepreneur. His work should not be associated with the implementation of entrepreneurial activities. If a foreigner has a residence permit or a temporary residence permit and wants to work for an individual, he also needs a patent.

Tax

Before calculating income tax, which must be withheld from a foreigner, it is necessary to determine whether he is a resident of Russia. They are recognized as foreigners who actually stay in the country for at least 183 days in a calendar year. Tax is levied on their income at a rate of 13%, in the case of non-residents - at a rate of 30%. Thus, the main thing to pay attention to is the moment when the tax status of a foreign employee changes.

When hiring foreigners, you need to be prepared for frequent checks by the Federal Migration Service

After 183 days of his stay in Russia, the tax amount previously calculated at a rate of 30% will have to be recalculated and standard tax deductions provided. In general, payments to foreigners are subject to insurance premiums according to the same principles as the salaries of Russian workers. However, there are special rules for contributions to some funds, depending on the status of a person in Russia (you can read more about this here).

Penalties

When hiring foreigners, you need to be prepared for frequent checks by the FMS. Some companies have audits every three months. If employees of the migration service find violations, a fine is imposed on the employer. For failure to notify the Federal Migration Service and the employment center about attracting a foreigner to work, you will have to pay from 400,000 rubles. For the hiring itself not formalized according to the law - from 250,000 rubles for each foreigner. It is also possible to suspend the activities of the company for a certain period, which is sometimes even more beneficial. The FMS decision can be appealed, but in 90% of cases, businessmen lose such court cases.

Photo: Dmitry Tsyrenschikov, Ivan Gushchin