Differences between an employment contract and a civil law contract. Registration of an employee under a civil law contract

1. How does a civil law contract differ from employment contract.

2. In what order are personal income tax and insurance premiums calculated from payments under a contract for the performance of work (services) with an individual.

3. How are transactions for GPC agreement with individual.

Purchasing works or services from third parties(IP) is a common phenomenon, without which it is difficult to imagine the activities of any business entity. However, not only another organization (IP), but also an individual can act as a performer of works (services). For example, the services of individuals for the creation of a corporate website, the transportation of property, the organization and holding of various corporate events (trainings, seminars, holidays), etc. are very common. It is obvious that for carrying out one-time works (services) it is not advisable to conclude an employment contract with the contractor and introduce an additional staff unit. How, then, to formalize the relationship, make calculations and withhold taxes? This will be discussed further in the article.

Documenting

Contract for the performance of work (rendering of services) with an individual

Documentation of relations with an individual involved in the performance of one-time works (services) begins with the conclusion of an agreement. At the same time, the contract is not of an employment, but of a civil law nature (GPC), and has the following varieties:

contract for the performance of work (work contract);
contract for services.

When concluding a contract for the performance of works (services), it is important to check that the provisions and wordings of the employment contract do not accidentally "flow" into it. Moreover, a civil law contract with an individual must be such not only in form, but also in essence. Therefore, it is necessary to clearly understand the difference between an employment contract and a civil law contract with an individual. The principal differences between these two types of contracts are presented in the table:

Differences	Agreement for the performance of works (services) with an individual	Labor contract
Legislative regulation	Civil law: contract agreement - ch. 73 of the Civil Code of the Russian Federation contract for the provision of services - ch. 39 of the Civil Code of the Russian Federation	Labor legislation: Labor Code of the Russian Federation
Parties to the agreement	Executor (contractor) and customer	Employee and employer
Subject of the contract	Fulfillment of a specific task (order, order) of the customer - the end result	Performance by an employee of a labor function (work according to the position in accordance with staffing, professions, specialties with qualifications)
Validity	The indication of specific deadlines for the completion of work is prerequisite contracts (Article 708 of the Civil Code of the Russian Federation).	If the term of the contract is not expressly established, the contract is considered to be concluded for a certain period(Article 58 of the Labor Code of the Russian Federation).
Subordination	The contractor is not subject to the requirements of local regulations of the customer (work and rest schedule, dress code, etc.). The contractor is not subordinate to the officials of the customer.	The employee must comply with the requirements of local regulations, as well as follow the orders of the employer.
Work organization	The contractor himself provides himself with everything necessary for the performance of work (services under the contract). By agreement of the parties, the contract may provide for the provision of tools, materials, etc. customer.	The employer is obliged to provide the employee with everything necessary for work, create safe conditions labor.
Social guarantees and compensations	The contractor is not covered by the guarantees provided for by the Labor Code of the Russian Federation (annual paid leave, payment of temporary disability benefits, etc.)	The employee has the right to all guarantees provided for by the Labor Code of the Russian Federation
Payments under the contract	The contract price is determined by agreement of the parties, without any size restrictions. If the contract does not provide for advance payment (staged payment), then payment is made upon completion of work, after they are accepted by the customer.	The employee's salary is set in the employment contract in a fixed amount. Periodicity of payment: not less than every half a month. Minimum size wages limited minimum wage.
Personnel accounting	None personnel documents for the performer of work under the contract are not issued, the work book is not filled out.	All necessary personnel documents are issued for the employee (employment order, personal card, work book is filled out, etc.)

So, comparing the terms of a civil contract for the performance of work (services) with an individual and an employment contract, it is obvious that the first option has a number of significant benefits from the customer's point of view:

only the final result is paid, and not all the time spent by the performer;
the risk of failure to complete the task lies entirely with the performer;
the contractor himself provides himself with everything necessary for work (unless otherwise provided in the contract);
the customer does not incur any additional costs for paying for vacations, sick days, etc.

Given all these benefits, it's no surprise that many employers try to "disguise" labor Relations under civil law. And it is also not surprising that the regulatory authorities with special attention check contracts with individuals for the performance of works (services). Therefore, in order to avoid possible claims, it is necessary to take into account the main errors in the contract with an individual that indicate labor nature relations(Letters of the Ministry of Taxation of Russia dated June 19, 2001 No. SA-6-07 / [email protected], Federal Tax Service of Russia for Moscow dated December 25, 07 No. 21-11 / [email protected], FSS RF dated 05.20.97 No. 051/160-97):

assigning a specific labor function to the performer, indicating in the contract the position in accordance with the staff list of the customer, specialty, qualifications;
works under the contract are of a continuing, rather than one-time nature (for example, cleaning the customer's premises, protecting the territory), specific quantitative and qualitative measures of work are not indicated;
subordination of the contractor to the internal labor schedule of the customer;
guaranteed remuneration (regardless of the result), payment of remuneration within the terms established for wages;
provision to the contractor necessary conditions labor (with the provision of a permanent workplace, means of labor);
sending performers under a civil law contract at the expense of the customer (with payment of daily allowances, payment according to average earnings).

! Note: for the conclusion of a civil law contract for the performance of work (services), which actually regulates labor relations, administrative liability is provided in the form of a fine (part 3 of article 5.27 of the Code of Administrative Offenses of the Russian Federation):

for officials: from 10,000 to 20,000 rubles.
for individual entrepreneurs: from 5,000 to 10,000 rubles.
for legal entities: from 50,000 to 100,000 rubles.

The act of acceptance and transfer of work (services) performed

Upon the performance of works (services) by the contractor, an appropriate act is drawn up. Legislation does not provide unified form such an act, so the parties (usually the customer) develop it themselves. The act of acceptance and transfer of works (services) under an agreement with an individual is the primary accounting document, therefore it must contain all necessary details(paragraph 2 of article 9 federal law dated 06.12.2011 No. 402-FZ "On Accounting"):

Title of the document;
Date of preparation;
name of the customer organization (IP);
name of performed works (services);
the value of the natural and (or) monetary measurement of the work (services) performed, indicating the units of measurement;
details and signatures of the customer and the contractor;

Personal income tax from remuneration under the GPC agreement

Payments under a contract for the performance of work (services) are recognized as income of the contractor subject to personal income tax (clause 6 clause 1 article 208 of the Tax Code of the Russian Federation). At the same time, the customer - an organization or an individual entrepreneur - is a tax agent under the law, which is responsible for calculating, withholding and transferring personal income tax to the budget from the income of the contractor - an individual (Article 226 of the Tax Code of the Russian Federation).

! Note: an indication in the contract of the obligation of the contractor to independently calculate and pay the amount of personal income tax to the budget, contradicts the norms of tax legislation and does not relieve such an obligation from the customer (Letter of the Ministry of Finance dated 04.25.2011 No. 03-04-05 / 3-292). In addition, personal income tax should be withheld from the contractor’s income (that is, the contractor will receive the amount specified in the contract, minus personal income tax, in his hands), and not be paid at the expense of the customer’s own funds (clause 9, article 226 of the Tax Code of the Russian Federation).

Personal income tax from the amount of remuneration is withheld in general order: at the rate of 13% (on the income of residents) and 30% (on the income of non-residents). At the same time, the taxable base also includes the amounts of the contractor's expenses that are reimbursed by the customer (Letters of the Ministry of Finance dated 01/23/2015 No. If the contract provides for the payment of an advance payment to the contractor, then personal income tax must also be withheld from the advance payment and transferred to the budget on the day of payment.

The contractor's income for the purpose of calculating personal income tax can be reduced by tax deductions:

professional deduction in the amount of expenses incurred to fulfill obligations under the contract, documented (cash receipts, sales receipts, invoices, travel tickets etc.) (clauses 2, 3 of article 221 of the Tax Code of the Russian Federation);

Let me remind you that tax deductions are provided only for income taxed at a rate of 13%, based on a written application from the taxpayer (in our case, the contractor under the contract).

Since the customer is a tax agent in relation to the income of the contractor under a civil law contract, the obligation to keep records of such income and provide tax information in the form 2-NDFL also lies with the customer. AT certificate 2-NDFL reflected:

amount of remuneration (including advance payment) with income code 2010;
the amount of the professional deduction (if any) with deduction code 403;
standard deduction amount.

Insurance premiums for payments under the GPC agreement

Insurance premiums from the amounts of remuneration under a civil law contract for the performance of works (services) with an individual are accrued in the following order:

Contributions from the amounts of payment under the contract for the performance of work (services) with an individual are accrued in the same manner and at the same rates as contributions from wages. In this case, the advance payment amounts are included in the base for the calculation of contributions on the day they are paid to the contractor.

! Note: the amounts of expenses that the contractor has incurred in connection with the fulfillment of obligations under the contract (the cost of purchased materials, raw materials and tools, travel and accommodation costs outside the place of permanent residence) and which are reimbursed at the expense of the customer, are not subject to insurance premiums, provided they are documented "g", clause 2, part 1, article 9 of Law No. 212-FZ, Letter of the Ministry of Labor of February 26, 2014 No. 17-3 / B-80).

Accounting for operations under a contract for the performance of works (services) with an individual

Account debit	Account credit
		Remuneration accrued to the contractor - an individual under a contract for the performance of works (services)
26 “General business expenses” (20 “Main production”, 44 “sales expenses”)	69 "Calculations for social insurance and security"	Accrued insurance premiums for the amount of remuneration
60 “Settlements with suppliers and contractors” (76 “Settlements with various debtors and creditors)		Withheld personal income tax from the amount of remuneration
60 “Settlements with suppliers and contractors” (76 “Settlements with various debtors and creditors)	50 "Cashier"51 "Settlement accounts"	The amount of remuneration paid to the performer
68 "Calculations for taxes and fees" / personal income tax	51 "Settlement accounts"	Personal income tax from remuneration transferred to the budget

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Normative base

Tax Code of the Russian Federation
Labor Code of the Russian Federation
Code of administrative offenses RF
Federal Law No. 402-FZ of 06.12.2011 “On Accounting”
Federal Law No. 212-FZ dated July 24, 2009 “On insurance contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund”
Federal Law No. 125-FZ of July 24, 1998 “On Compulsory Social Insurance against Occupational Accidents and Occupational Diseases”
Letter of the Ministry of Labor dated February 26, 2014 No. 17-3 / V-80
Letters from the Ministry of Finance of the Russian Federation:

No. 03-04-05/3-292 dated April 25, 2011;
No. 03-04-05/1733 dated January 23, 2015;
dated 05.09.2011 No. 03-04-05/8-633

How to read the official texts specified documents, find out in the section

Civil contract is the convention:

Between an individual (individuals) and another individual (individuals),

Or between an individual (individuals) and a legal entity (legal entities),

Or between a legal entity (legal entities) and another legal entity (legal entities);

according to which, the mutual rights and obligations of the parties under the contract arise, change or terminate.

A civil law contract is any contract concluded in accordance with Civil Code Russian Federation and the terms of which do not contradict the current civil legislation.

Types of civil law contracts

Civil law contracts can be divided into the following types(groups):

property contracts related to the transfer of property. These are, for example, contracts for the supply, purchase / sale, exchange, donation;

work contracts. For example, ;

service contracts. For example, agreements on the indication of storage services, insurance, transportation.

Differences between a Civil Law Contract and an Employment Contract

The civil law contract has a number of fundamental differences from an employment contract. The main differences are as follows:

Under contracts for the provision of services or performance of work, the performer (contractor) undertakes to fulfill a specific task of the customer, which is already known at the time of the conclusion of the contract.

Under an employment contract, an employee occupies a specific position in accordance with the staffing table, works in a specific profession, specialty and performs all the instructions of the employer as they become available.

In civil law relations, the priority is a specific result, and in the labor relations of the employer, first of all, the process of the employee's labor activity itself is of interest.

In labor relations, the employee occupies a subordinate position in relation to the employer. In civil law relations, the principle of equality of both parties under a civil law contract is observed.

Performers and contractors independently determine the procedure for fulfilling the obligations assigned to them by the contract and do it at their own expense. The employee must follow the internal labor regulations established by the employer, including the employee must comply with the working hours. In addition, the employer is obliged to provide the employee with everything necessary for the performance of labor duties, pay compensation for the employee's use of his property in work and reimburse other personnel expenses incurred in the interests of the employer.

The employee always performs his labor function personally. Participating in civil legal relations, the performer (contractor) has the right to involve third parties in the execution of a civil law contract.

Performers and contractors do not receive wages, but stipulated by the agreement remuneration that is paid not every half a month, as, but in the manner established by the contract on the basis of an act of work performed (services rendered).

Under an employment contract, the employee bears full liability only in cases provided for in Art. 243 of the Labor Code of the Russian Federation (for example, lack of valuables, causing damage, etc.). Performers and contractors are obliged to fully compensate for the losses caused by them.

An employment contract can be fixed-term only in strictly defined cases. A civil law contract providing for the performance of work or the provision of services is concluded for a certain period or until the result occurs.

If a civil law contract is concluded with an individual, then the guarantees provided for labor law in relation to employees working under an employment contract.

For example, these guarantees are:

guarantees for the payment of wages (at least twice a month);

guarantees in case of temporary incapacity for work (preservation of the job, payment sick leave);

reimbursement of expenses for the use of personal property;

guarantees when using vacations (preservation of the place of work, payment of vacation pay);

guarantees for persons combining work with education (preservation of the place of work, vacations);

guarantees upon termination of the employment contract ( severance pay, preemptive right left at the enterprise);

guarantees when sent on a business trip (preservation of the place of work, payment of expenses).

Still have questions about accounting and taxes? Ask them on the forum "Salary and personnel".

Civil law contract (GPC): details for an accountant

Fulfillment of duties stipulated by regular positions? Civil law contracts with individuals have the right to ... regular positions? When can civil law contracts be concluded? The civil law contract (hereinafter referred to as the GPA) refers to ... not provided for by an employment contract In a civil law contract there are no signs of an employment contract ... contributions indicated that the remuneration provided for by civil law contracts, the subject of which is the performance of work ...
On some issues of concluding civil law contracts
Fulfillment of duties stipulated by regular positions? Civil law contracts with individuals have the right to ... regular positions? When can civil law contracts be concluded? The civil law contract (hereinafter referred to as GPA) refers to transactions ... contributions indicated that the remuneration provided for by civil law contracts, the subject of which is the performance of work ... under employment contracts or under civil law contracts, the subject of which is the performance of work ...
Unreasonable tax benefit when an LLC enters into civil law contracts with an individual entrepreneur instead of formalizing an employment relationship
Benefits in the event of the conclusion of LLC civil law contracts with individual entrepreneurs instead of registration of labor ... benefits in the case of the conclusion of civil law contracts with LLC with individual entrepreneurs instead of registration of labor ... benefits as a result of the conclusion of LLC civil law contracts with individual entrepreneurs instead of registration .. IE and entered into civil law contracts with them for the provision of services. Details are as follows.... Thus, according to the results of the audit, civil law contracts with individual entrepreneurs were reclassified as ...
Review of letters from the Ministry of Finance of the Russian Federation for July 2019
11/52382 The presence of previously concluded civil law contracts, including work contracts ... from carrying out activities under a civil law contract, including a work contract ... is a customer of services (works) under a civil law contract for the specified individuals or ... health insurance as a payment under a civil law contract on the basis of subparagraph 1 of paragraph ...
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And other remuneration under civil law contracts, the subject of which is the transfer of rights ... within the framework of labor relations and civil law contracts, the subject of which is the performance of work ...
Review of letters from the Ministry of Finance of the Russian Federation for August 2019
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500 rub. (paid under a separate civil law contract concluded with an individual). Furniture accepted...
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Faces. If there is activity under a civil law contract, column 11 shall reflect the codes ... of persons under labor contracts and civil law contracts (with the exception of contracts of the author's order ... of an individual under labor and civil law contracts, including: ... an individual under labor and civil law contracts, including: - incoming ... citizens, including employees under civil law contracts, the subject of which is the performance of work ...
Insurance premiums in 2017. Clarifications of the Ministry of Finance of Russia
Remuneration paid to individuals under civil law contracts for the performance of work, provision of services ... -06/46733 Remuneration provided for by the aforementioned civil law contracts, the subject of which is the performance of work ... treaty Russian citizen subject to taxation only ... Remuneration paid to individuals under civil law contracts for the performance of work, the provision of services ...
The employee is the author of the invention and receives money for it: tax accounting procedure
...) by contract, but are made on the basis of a civil law contract providing for the transfer of rights to use an invention ... official industrial design under a separate civil law contract, is not subject to insurance premiums ... this invention on the basis of a separate civil law contract for the payment of remuneration must be taken into account ...) contract, but are made on the basis of a civil law contract providing for the transfer of rights to use the invention. ..
Insurance premiums in 2018: clarifications from the Ministry of Finance of Russia
In favor of such citizens under civil law contracts, the subject of which is the provision of ... labor relations and under civil law contracts, the subject of which is the performance ... as payments made under civil law contracts, the subject of which is the provision of ... foreign citizens providing services under a civil law contract concluded with Russian organization, ... An individual (customer) who has entered into a civil law contract for the provision of legal services ...
Individuals who are executors under civil law contracts, the cost of travel to the place of performance ... individuals who are executors under civil law contracts, the cost of travel and accommodation in ... Received funds on the basis of a civil law contract providing for the provision of services (performance of work ... related to the provision of services under civil law contracts concluded by a lawyer with a principal, since ...

In conditions of economic instability, companies are forced to look for new market niches, develop new types of products, and enter new markets. At the same time, on the one hand, new employees are often required, and on the other hand, there is no certainty whether the business will “go” and whether the organization will work in a few months. In such a situation, many try to first conclude civil law contracts with new employees, and not immediately accept them into the staff of the organization. Today we will talk about common mistakes that are allowed with this design of personnel.

Introductory information

Consequence said rule is also the fact that the contractor under a civil law contract cannot have overtime work or work on weekends / holidays as well as the night shift. For an accountant, this means that the contract with the contractor cannot include conditions for any additional payments for such “deviations” from the work schedule.

Finally, the fact that the contractor is not subject to the work regime of the organization that “hired” him means that the organization should not keep any records of hours worked in relation to him. So check that contractors do not appear in your timesheets and other personnel documentation.

Not a salary, but a reward

Let's take another example. The organization rents premises in a building built in the early 20th century. And because of the dilapidated wiring, the power grid constantly fails. But the management considers it unprofitable to keep an electrician on staff, therefore, a specialist under a contract agreement is involved in the repair and restoration work.

On the eve of the celebration on February 23, the head of the administrative and economic department turned to the management with a request to pay an electrician a bonus in accordance with the Bonus Regulations in force in this organization. The bonus was paid to the electrician on the basis of a general order for the organization, along with other male employees.

The discovery of such documents during verification also means Right way to a fine. Moreover, there are several errors here. First of all, local acts operating in the organization apply only to its employees, whom the electric contractor is not (Labor Code of the Russian Federation). That is, by applying the rules of the Bonus Regulations to him, the organization actually recognized that he was an employee and, by his actions, re-qualified the contract.

Secondly, such a bonus is a violation of the contract. After all, according to it, the contractor receives a clearly specified amount of payment for an equally clearly specified amount of work (the Civil Code of the Russian Federation). And the basis for payment is the signing of the certificate of completion. Therefore, it is possible to talk about a bonus in the case of a contractor only in one case: if he completed an additional amount of work and the customer accepted this work.

The consequence of the above is another rule: in the contract, it is impossible to time the payment of remuneration to the contractor to the terms of payment of wages to full-time employees. The contractor can receive his money either in advance at the time fixed in the contract, or upon completion and acceptance of the agreed amount of work. Moreover, in the case of an advance payment, it is also highly recommended to associate the date of its issue not just with one or another day (date), but with an event - for example, the performance of a part of the work, or the conclusion of an agreement. For example, the following wording is acceptable. “Payment for the work is made in two stages: 30 percent of the remuneration is paid no later than ten working days from the date of conclusion of this contract, the remaining part - no later than ten working days from the date of acceptance by the customer of the results of the work.”

contract dependents

Let's continue with the electrical contractor example. Having arrived at the organization on the occasion of another breakdown and having examined the “front of work”, the electrician presented the management of the organization with a list of materials and tools that he would need to fix the problem. The manager immediately agreed to provide the electrician with everything he required, so long as the breakdown was fixed as quickly as possible.

However, such haste is also fraught with trouble. After all, the obligation to provide the employee with everything necessary for work is also one of the signs of labor relations (Labor Code of the Russian Federation). In the Civil Code, everything is different. By general rule, the contractor performs all work using his own tools and components. This is called "performance of work dependent on the contractor" (Civil Code of the Russian Federation). However, the legislator allows to change this rule. To do this, it is necessary to fix in the contract that the work can be performed "depending on the customer."

Therefore, before fulfilling the requirements of the contractor to provide him with tools and components, you need to make sure that your contract contains a condition on the performance of work at the expense of the customer. If there is no such condition, then an appropriate supplementary agreement. By the way, this will also come in handy to justify the costs of payments under a work contract before the tax.

Check your contract

In conclusion, we note a few more points that you should pay attention to when concluding work contracts (provision of services) with individuals.

Mistake	How to
Indication of the position / profession in the contract.	The contract must indicate the specific work (service, scope of work) that the contractor undertakes to perform.
	The contract should contain a description of the result of the work that the customer expects to receive (with an indication, if necessary, of units of measurement).
Lack of work deadlines.	The start and end dates of work are mandatory (essential) terms of the work contract (Civil Code of the Russian Federation).
An indication of the subordination of the contractor to one or another official of the organization.	According to the Civil Code of the Russian Federation, the customer has the right at any time to check the progress and quality of work performed by the contractor, without interfering in his activities. The contract can establish who is appointed as such an authorized representative of the customer, as well as describe in more detail his powers.
Inclusion of the rule on a two-week warning of termination of the contract	Under the Civil Code, the contractor is not entitled to unilateral refusal from the execution of the work contract, while the customer may refuse to perform the work contract at any time (the Civil Code of the Russian Federation). Therefore, in the contract it is better to quote Art. 717 of the Civil Code of the Russian Federation and indicate that the termination of the contract at the initiative of the contractor is possible after agreeing this termination with the customer.

The employer is not always interested in the employment of employees in the state. We have already talked about how one of the ways not to employ an employee. But since 2016, outstaffing has been banned and the employer should consider other options for interacting with staff. One of the most common options is to conclude a GPC agreement with an employee.

What is a GPC agreement with an individual

A GPC agreement (civil law) is a type of relationship between an employer and an employee, in which the performer receives remuneration for a predetermined result of work. At the same time, the employee is not registered in the staff of the customer's company, the employer is not required to make marks in work book and pay vacation and sick leave. Despite this, the employee pays personal income tax, and the employer pays UST. The GPC agreement is often also called a work contract, and the employees employed under it are contractors or pieceworkers.

Registration under the GPC agreement

Despite the fact that the employer does not make any marks in the work book, for the period of the GPC agreement, the employee is credited with the work (insurance) length of service. This entitles the employee to receive an old-age pension. In addition, the employer is required to make transfers to Pension Fund Russia. This means that in terms of pension protection for an employee, there is no difference between a GPC agreement and an employment contract.

An important detail is that a work contract is concluded for a fixed period, unlike an employment contract, which, as a rule, does not have a term. For the employer, this makes it possible to terminate the GPC agreement at any time convenient for him. In the case of an employment contract, the employer must notify the employee of termination 2 months in advance.

The actions of the employment contract are regulated by labor Code Russia, the GPC agreement, in turn, is governed by the provisions of the Russian Civil Code. The parties to the conclusion of the GPC agreement are the customer and the contractor (individual). The employment contract specifies the employer and employee.

A very significant difference between a work contract and an employment contract is directly the subject of the contract. The subject of the employment contract is the independent performance by the employee of the labor function, which is prescribed in job descriptions to the contract. This labor function is not final, it is a work process that is performed every day.

Based on the GPC agreement, only the result of the work within the time period set under the agreement is important. At the same time, the work process itself is secondary, although the customer can and should control the progress of the work process itself. But in the absence of the required result, the customer simply does not pay for the work. Basis for payment to the contractor Money serves as an act of work performed. At the same time, the contractor has the right to involve third parties to perform the work, if this does not contradict the terms of the GPC agreement.

Each organization has a working mode, which is regulated by internal orders of the company. All employees must comply with this regime: come, leave for dinner at the allotted time, follow the orders of the immediate supervisor. The employee is under the full control of the employer. But the employee also has rights, for example, to rest on weekends and public holidays, and going to work on these days is paid to the employee at an increased rate. An employee of a GPC arranged under an agreement undertakes to do only what is prescribed in the agreement, all internal orders and regulations do not concern him. At the same time, the contractor himself determines when and how much to work, and the customer does not pay for processing.

What is the difference between a GPC contract and an employment contract.

So, let's summarize all of the above and point out the main differences between work under a civil law contract and an employment contract.

	Labor contract	GPC agreement
White ZP	Yes	Yes
official registration	Yes, to the staff of the company with a corresponding mark in the work book	Yes, an agreement is issued on hand, which is official document. But the employee is not accepted into the state, they do not make employment records
Advance and salary	Yes	Advance payment and salary are not provided, only at the request of the employer
Dismissal	The contract is indefinite, dismissal in accordance with the Labor Code of the Russian Federation	The contract is urgent, can be terminated at the request of the parties at any time
study leave	Yes	No
vacation	Yes	No
Sick leave/maternity leave	Yes	No
Schedule	Written in an employment contract	The employee chooses a convenient schedule
Opportunity to take out a loan for an employee	Yes, you can get a 2NDFL certificate and a copy of the labor	Yes, you can get a 2NDFL certificate
Pension	Yes	Yes

GPC taxation agreement 2015

As mentioned above, for an employee registered under a GPC agreement, the employer must pay personal income tax - 13% for residents and 30% for non-residents. Transfers to the pension fund of Russia PFR are also mandatory. But the employer is not obliged to transfer money to the social insurance fund of the FSS.

Grounds for recognizing the GPC agreement as labor

The obligation to comply with the internal labor regulations, adhere to the work schedule, follow the orders of the employer (decisions of the Federal Antimonopoly Service of the West Siberian District of 04/27/2011 in case N A27-6452 / 2010, the Federal Antimonopoly Service of the West Siberian District of 03/24/2011 in case N A03-1259 / 2010 (Determination of the Supreme Arbitration Court of the Russian Federation dated August 11, 2011 N VAC-9131/11 refused to transfer this case to the Presidium of the Supreme Arbitration Court of the Russian Federation)).
Payment of wages on a permanent basis in conjunction with other circumstances of the case (Decree of the Federal Antimonopoly Service of the West Siberian District of April 27, 2011 in case No. A27-6452 / 2010).
Execution by an individual of specific official duties for a long period (decree of the Federal Antimonopoly Service of the West Siberian District of April 27, 2011 in case N A27-6452 / 2010).
Liability assigned to the contractor under the GPC agreement (decree of the Federal Antimonopoly Service of the East Siberian District of November 24, 2010 in case N A33-15600 / 2009).
Arrangement by the customer of a workplace for the contractor, providing him with equipment, overalls, mobile communications, CCP for performing work or providing services (decree of the Federal Antimonopoly Service of the West Siberian District of 04/27/2011 in case N A27-6452/2010, FAS of the East Siberian District of 11/24/2011 .2010 in case N A33-15600/2009).

Is it dangerous to work under a GPC agreement

Many applicants are distrustful of the GPC agreement, there is a strong opinion that an employee registered under the GPC can be thrown for money. In fact, this is not so, the legal protection of the GPC agreement is no less than that of an employment contract. But it is worth taking into account the fact that the GPC agreement does not provide for many social payments and this must be taken into account.

The conclusion of a civil law contract requires fewer formalities. It is compiled in writing, certified by the seal of the organization and signed by both parties.

What does the GPC agreement mean, shows its structure, similar to the conceptual principles of an employment contract:

The essence of the work assigned to the performer, with a description of its specific result.
The time allotted for the service.
Rights and obligations of participants.
Liability provided for in case of non-fulfillment of obligations.
The possibility of using the labor of third parties and the degree of their participation in the work.
Algorithm for changing or terminating the agreement.
Personal data and signatures of the parties.

Kinds

Civil law contracts include the following types of contracts:

in a row. The most common form of contract, the subject of which can be design, domestic, construction work.
Providing various services.
Concerning education and research activities.
Guarantees.

In what cases does it apply

The expediency of concluding a GPC agreement is obvious when:

Availability of short-term work:
- article writing;
- design project development;
- repair, construction.
Periodically arising need for the services of any employees:
- programming, audit;
- when loading and unloading goods;
- transportation of goods to the destination;
- for cleaning the room.
Hiring seasonal workers - during the harvest.
Rent, sale, donation of housing.

The consequences for the employer when drawing up a GPC agreement are described in the video

The main differences from the employment contract

Sometimes an enterprise prefers a GPC agreement in order to reduce tax payments and covers ordinary labor relations with them. For the employer, this is fraught with penalties from tax service. However, in some cases, the matter lies in the incorrect wording made in the preparation of a civil law contract. Which gives grounds to the inspectors of the Federal Tax Service to initiate his retraining in labor. In order to avoid such incidents, it is necessary to be more careful about the description of those clauses of contracts, the essence of which is almost identical.

Regulations

Unlike the employment contract, the GPC is regulated not by the Labor, but by the Civil Code of the Russian Federation. Which excludes any use in the agreement of the terms and regulations of the Labor Code. For example, when referring to an employee, you should not use the full-time job title, even if his future duties fully correspond to it. It is better to stick to the neutral designation "performer".

Subject of the contract

Interesting information

The GPC agreement concluded with an individual entrepreneur does not differ from the same agreement, but concluded with an individual. The only nuance is the obligation individual entrepreneur pay personal income tax himself, which he can do according to a simplified scheme.

Depending on the type of contract, it is concluded for the performance of specific duties (service contract) or for the achievement of a specific goal at the end of the labor process (work contract). It is the final result that is evaluated, and not the daily performance of official duties. Its acceptance is expressed by drawing up a bilateral act of acceptance of works (services).

Inner order rules

The contractor is not obliged to adhere to the mode of work adopted in the organization and has the right to carry out labor activity at a time convenient to him. From this it is clear that this employment under the GPC agreement excludes any payments for work in excess of the established regime, at night or on holidays. The customer and other officials of the enterprise cannot give instructions to the contractor regarding the work process. Since the performer is responsible only for the result of his work or the intermediate period of work.

Working conditions

The arrangement of the workplace, the purchase of tools, raw materials - everything necessary for work is the responsibility of the contractor, and not the employer, as would be the case with a full-time employee. However, Art. 704 of the Civil Code of the Russian Federation allows you to include in the contract clauses on the provision by the customer of certain tools by mutual agreement.

Validity

Unlike an employment contract concluded for an indefinite period (with the exception of the situations specified in Articles 58, 59 of the Labor Code of the Russian Federation), the GPC agreement contains specific deadlines for completing work (otherwise, in the case of a contract, the document will be invalidated) or time, for which it concludes (regarding the services rendered). For how long a GPC agreement can be concluded depends on the agreement of the parties.

Employees are advised to conclude an employment contract, because when it is signed, the legislation protects their interests. The employer will not be able to unreasonably refuse to hire, or unreasonably dismiss. In case of violation of the rights, the employee may apply to the court. When concluding a GPC agreement, court intervention is possible, but proving one's own case is much more difficult.

Payment

The employment contract indicates the specific amount of wages and the procedure for calculating it, which does not imply any derogations. Whereas a civil law contract implies any system of calculation adopted by agreement of the parties (payment of a deposit, monthly payment for services provided during the month, or remuneration at the end of work).

The amount of remuneration is established by agreement (clause 1, article 424 of the Civil Code of the Russian Federation). It can manifest itself as a certain amount or ratio to the volume of work performed (Articles 709, 783 of the Civil Code of the Russian Federation). If, in addition to this, the customer has a desire to express his gratitude in a material sense, it should be issued as an increase in the estimated amount, but not in the form of bonus payments, which will be considered a sign of an employment relationship.

Business trip

Some facts

It is possible to re-qualify the GPC contract into a labor contract at the request of regulatory authorities, or the employees themselves. If the employer agrees only to the execution of the GPC agreement, and the employee is not against it, the regulatory authorities cannot prove the opposite and require a different form of labor relationship.

An employee working under an employment contract sent to work in another city is reimbursed for travel, accommodation, meals and other expenses related to the goal set for him. The text of a civil law contract cannot contain the word “business trip” itself, so as not to be misunderstood.
However, the need to travel to another city to fulfill obligations may exist in this case as well. The dilemma that has arisen is resolved in two ways:

The remuneration is increased by the amount of expenses incurred by the contractor.
Reimbursement of expenses is included in the contract, but not as payment for travel and daily allowance for a business traveler, but as compensation for the amounts of those who have documentary confirmation spent by the performer in the performance of work.

Benefits

The difference between the GPC agreement and the employment agreement lies in the fact that (in accordance with part 1 of article 2 of the Federal Law No. 255 of December 29, 2006) it does not provide the contractor with:

Vacation:
- regular;
- no content;
- at the time of study.
Benefit for:
- illness;
- child care;
- pregnancy and childbirth.

Penalties

If the customer's property is damaged, its compensation is the responsibility of the contractor (clause 1, article 393 of the Civil Code of the Russian Federation). This opportunity provided for in the preparation of the GPC agreement, as well as penalties in case of delay.

An employment contract cannot include clauses relating to penalties or fines (part 4 of article 192 of the Labor Code of the Russian Federation). In the event of an imposition on an employee liability, its amount should not exceed the amount of a monthly salary (Article 241 of the Labor Code of the Russian Federation).

Advantages and disadvantages

The GPC agreement, what pros and cons this document contains, can be analyzed from the point of view of both parties. It is more preferable for the employer, however, it has several positive aspects in relation to the contractor.

For the customer

By concluding a GPC agreement with the contractor, the employer is exempt from:

issuing an employment order, issuing a personal card F No. T-2, making entries in the work book;
preparation of the workplace and provision of equipment, tools necessary for work;
monthly advance payments and wages (the calculation is usually made upon the fulfillment of obligations);
reimbursement of expenses incurred by the employee in the course of labor activity;
vacation pay, days off, sick leave;
registration of medical and social insurance (unless otherwise provided by the contract);
payment of certain taxes (for example, 4% UST);
prior notice to the employee of dismissal and payment of severance pay.

In this case, the customer is deprived of the opportunity:

control the process of work, give instructions to the performer;
hold a non-staff employee liable for non-compliance with labor safety rules and others;
to eliminate the risk of re-qualification of the contract into a labor contract with the payment of penalties.

Details about employment under the GPC agreement in the video below

For the performer

When concluding a GPC agreement, the pros and cons for the employee are approximately equal. The contractor receives the following benefits:

the right to work at a convenient time for themselves, and not come to work and leave it at strictly fixed hours;
is not obliged to comply with internal regulations, participate in subbotniks, corporate events;
may not follow the instructions of the officials of the enterprise (his duties include only the provision of the result specified in the agreement);
insurance contributions (PFR and MHIF) are repaid at the expense of the employer, and are not withdrawn from wages;
may hire additional participants to perform work;
the time spent on the performance of work is included in the length of service;
There is an opportunity to work for several customers at once.

Negative aspects of cooperation:

entries are not made in the work book;
missing social guarantees(payment for overtime, weekends, holidays, vacations, sick leaves);
the issue of insurance is resolved in a separate procedure (with the consent of the employer);
the amount of remuneration received under the GPC agreement is not taken into account when calculating average earnings (since there were no contributions to the FSS);
in case of bankruptcy of the enterprise, dismissal under the GPC agreement is made without payment of remuneration.

All questions of interest can be asked in the comments to the article.

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