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Transferring an employee to self-employed: opportunities and risks

In 2019, a new tax regime appeared in Russia – a tax on professional income. This regime is established by the Federal Law of November 27, 2018 No. 422-ФЗ “On the experiment to establish a special tax regime” Professional income tax “in the city of federal significance Moscow, Moscow and Kaluga regions, as well as in the Republic of Tatarstan (Tatarstan)” .

On the part of the state, this experiment is a step in relation to the process of gradual legalization of incomes of citizens who independently provide themselves with work.

This mode has been introduced and operates in four regions: Moscow, Moscow Region, Kaluga Region, the Republic of Tatarstan for a period of 10 years and is applied by citizens who have no employer and no employees.

If this experiment is recognized as positive, of course, it is assumed that its effect will spread to other territories over time. However, since the beginning of this year, some problems have been identified due to the fact that this regime has been actively used by employers, who began to attract new employees as self-employed in order to save on the payment of insurance premiums.

Are there any risks for employers in such cases – we will consider in this article.

Let’s figure out what could be the savings for the employer

Currently, the employer (company or individual entrepreneur) can attract individuals on the basis of an employment contract as an employee or on the basis of a civil law contract as an executor, contractor.

In this case, the employer, when paying the employee wages, is obliged to withhold from the total income and transfer to the budget: 13% – personal income tax and pay insurance contributions from the employee’s salary in the following amounts:
on pension insurance – 22%;
for medical insurance – 5.1%;
for social insurance – 2.9%, that is 30%.
It turns out that if an employee receives a salary of 50,000 rubles per month, the calculation will be as follows:
Personal income tax will be 6,500 rubles,
insurance premiums for the employer will be 15,000 rubles.
In the case of attracting an individual under a civil law contract (GPC), the employer is also required to withhold from the total income and transfer to the budget: 13% – personal income tax and pay insurance premiums from the employee’s salary in the following amounts:
on pension insurance – 22%;
for health insurance – 5.1%, that is 27.1%.
It turns out that if an individual under a GPC agreement receives a fee of 50,000 rubles per month, the calculation will be as follows:
Personal income tax will be 6,500 rubles;
insurance premiums for the employer will be 13,500 rubles.
In the event that a company or an individual entrepreneur engages an individual registered as self-employed as an executor, the taxation will be as follows:
6% of income received from a legal entity;
4% of income from individuals.
And the most important thing in this case is that the self-employed are exempted from insurance premiums. But at the same time, one must also remember the limitations. This applies to the maximum amount of annual income in the amount of 2,400,000 rubles.

Returning to our example: when paying remuneration of 50,000 rubles, the employer does not calculate or pay anything. And an individual independently reflects his income in a mobile application and pays a tax of 3,000 rubles.

Economic benefits are evident: both for the organization that attracts the self-employed, and for the individual himself.

Prohibition of income from a former employer

The law contains an indication that “income from the provision (performance) by individuals of services (works) under civil law contracts is not recognized as an object of taxation, provided that the customers of the services (works) are the employers of these individuals or persons who were their employers for less than two years ago”.

That is, the law prohibits citizens from using income from their former employer for 2 years when calculating tax under this regime. Thus, it turns out that employers will not be able to attract their former employees as self-employed for two years from the date of dismissal of the employee.

Well, or such facts may occur, but not earlier than 2021, but in this case there are tax risks for the company, and we will talk about them later.

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