The founder of both organizations is the same person. He is also the CEO of both organizations. The place of registration of organizations and the place of residence of the founder is the Russian Federation.
Organizations other than the simplified tax system do not apply other special tax regimes. It is planned to conclude loan agreements between organizations, or a loan agreement will be concluded between organization 1 and the founder (borrower), and then with the founder (lender) and organization 2.
Loans are planned to be issued in the amount of 4-5 million rubles.
Based on what rate is income (expense) under loan agreements recognized in the tax accounting of organizations? What minimum loan interest rate should be established in contracts so that organizations do not have tax risks?
What tax consequences and risks do an individual face under loan agreements (including interest-free loan agreements)?

Tax risks for interest-free loans from organizations are not considered within the scope of the issue.

Having considered the issue, we came to the following conclusion:
If an interest-bearing loan agreement does not meet the characteristics of a controlled transaction, income (expense) in the form of interest under such an agreement is recognized by organizations applying the simplified tax system based on the actual interest rate, in other words, from the rate provided for by the agreement, without any restrictions. In this case, the rate does not affect the tax obligations of the parties to the loan agreement.
Income in the form of interest on a loan received by an individual (in your situation - the founder of an organization) from a Russian organization - the borrower is subject to personal income tax at a rate of 13%. In this case, the borrowing organization is recognized as a tax agent for personal income tax and is obliged to calculate, withhold from the individual and pay the calculated amount of tax to the budget.
In the case of issuing an interest-free loan, the founder - an individual does not have an obligation to pay personal income tax.
When a founder receives a loan from an organization, he may have income in the form of material benefits, taxable to personal income tax at a rate of 35%, in the event that interest on the loan is not provided for in the agreement, or the loan agreement establishes a rate lower than two-thirds of the key rate of the Bank of Russia (current at date of actual receipt of income by the taxpayer).

Rationale for the conclusion:
Under a loan agreement, one party (the lender) transfers into the ownership of the other party (borrower) money or other things determined by generic characteristics, and the borrower undertakes to return to the lender the same amount of money (loan amount) or an equal number of other things received by him of the same kind and quality (Civil Code of the Russian Federation).
The rate under the loan agreement can be set by the parties to the loan agreement in any amount (Civil Code of the Russian Federation).
When providing an interest-free loan, the loan agreement must necessarily stipulate that no fee will be charged for the use of the funds provided (Civil Code of the Russian Federation).

Lender and borrower - organizations applying the simplified tax system

Controllability of transactions

Income and expenses in the form of interest on the loan

Individual - lender

Prepared answer:
Expert of the Legal Consulting Service GARANT
auditor Ovchinnikova Svetlana

Response quality control:
Reviewer of the Legal Consulting Service GARANT
auditor, member of RSA Gornostaev Vyacheslav

The material was prepared on the basis of individual written consultation provided as part of the Legal Consulting service.

The only founder and director in one person is a typical picture for a small business. Moreover, bringing a startup to profit often requires the manager to invest a year or even more of work and money into its development without receiving anything in return.

In such a situation, paying the director a salary is a luxury that not everyone can afford. The luxury of paying insurance premiums from your salary, maintaining personnel records and submitting a huge amount of “salary” reporting.

Meanwhile, in an already established business, you want something fundamentally different - social guarantees (sick leave, vacations), the formation of pension savings, a monthly salary. These are the benefits of an employment contract.

Is it necessary to conclude an employment contract and pay wages?, if your company has the only founder and director in one person? Unfortunately, there is no single official answer to this question. And if you came here for an exact “yes or no,” then I will immediately disappoint you.

Meanwhile, there are also advantages - using the situation in a way that is beneficial to you. And in both cases, guided by legal norms.

Employment contract with the sole founder

All official sources who are called upon to clarify controversial issues - Rostrud, the Ministry of Finance, extra-budgetary funds, the courts - like capricious young ladies, put forward opposing points of view. Moreover, with references to legislation. That does not prevent them from changing their position to the opposite one after some time.

By the way, letters from Rostrud and the Ministry of Finance are not normative legal acts; they contain only explanations and opinions and cannot have legal force.

Above, we have already briefly outlined the reasons why an employment contract with a single founder can be beneficial, we repeat:

• — the opportunity to receive monthly income from the business, regardless of whether there is profit;
• — social guarantees (payment of vacations and various benefits);
• — formation of pension insurance length of service for calculating pensions.

Examples of officials’ opinions against concluding an employment contract: letters of Rostrud dated 03/06/2013 No. 177-6-1, dated 12/28/2006 No. 2262-6-1, letter of the Ministry of Finance dated 02/19/2015 No. 03-11-06/2/7790, letter of the Ministry of Health and Social Development dated August 18, 2009 No. 22-2-3199. Here are their arguments:

1. If the only founder and director are one person, then the employment contract will contain two identical signatures, he concludes with himself, which is impossible.

In paragraph 3 of Art. 182 of the Civil Code of the Russian Federation states that an agreement signed by the same person on both sides has no legal force. But the provisions of this article do not apply to labor relations; this is civil law.

1. Article 273 of the Labor Code from Chapter 43 (labor relations with the manager) states that the provisions of this chapter do not apply to managers who are the only participants (founders) of their organizations.

As you can see, the statements are very controversial.

Is the director's employment contract with himself or with the company?

What arguments can you give in your favor if you are the only founder and director in one person and want to conclude an employment contract?

1. The parties to the employment contract are different– director as an individual and organization as a legal entity. It is known that a legal entity has its own legal capacity and acts in legal relations on its own behalf, and not on behalf of its founders. Therefore, an employment contract between the director “with himself” is possible.
2. Chapter 43 of the Labor Code, which officials refer to, describes the relationship with the manager, who is not the founder. The Labor Code itself does not prohibit concluding an employment contract with a single founder. And even in Article 11, among the persons to whom labor legislation does not apply, the founding director is not named.

Indirectly confirms the possibility of concluding an employment contract with the sole founder insurance legislation. So, for example, in paragraph 1 of Article 7 of Law No. 167-FZ of December 15, 2001 “On compulsory pension insurance in the Russian Federation” we will find that the insured persons are “those working under an employment contract, including heads of organizations who are the only participants (founders)".

Similar provisions are in laws No. 326-FZ of November 29, 2010 (health insurance) and No. 255-FZ of December 29, 2006 (social insurance).

Order for director - sole founder

Labor relations with the general director are formalized in accordance with all the rules of labor legislation, with the conclusion of an employment contract. If there is only one founder, then the agreement can be concluded for an indefinite period.

The text of the agreement states that this employee “is assigned the duties of the general director on the basis of the decision of the founder (participant) No. ..... dated .....”.

Those. first you need to sign the decision of the sole participant of the company. The decision will say: “I assign the duties of the general director to myself.”

Based on the decision, an order is issued to the director - the sole founder, which says approximately the following: I, full name, begin to perform duties as the general director of LLC "..." from (date). Grounds: decision of the sole participant of the company No.... dated...

The requirement to issue an employment order is contained in Art. 68 Labor Code of the Russian Federation. The entry for employment is made according to the general rules established by the Rules for maintaining and storing work books (approved by Decree of the Government of the Russian Federation of April 16, 2003 N 225), as well as the Instructions for filling out work books, approved. Resolution of the Ministry of Labor of the Russian Federation dated October 10, 2003 No. 69.

The signed order for the performance of duties will be an order for employment. Based on the concluded employment contract and order, an entry is made in the work book.

Entry into the work book is done as follows:

• — in column 3: Appointed to the position of General Director
• — in column 4: order details

If you plan to enter into an employment contract not only with the director, but also to hire other employees, then.

Salary of the director - the sole founder

The employment contract will provide for the payment of wages to the director. Its size must be economically justified (Article 273 of the Tax Code - expenses are economically justified and documented).

Please note that the salary of the director - the sole founder may be paid only upon concluding an employment contract. If it is not there, then the tax authorities will not recognize it as an expense.

The explanation is simple - among the expenses that cannot be taken into account when calculating the tax base for profits, the Tax Code indicates any remuneration to managers, except under an employment contract (clause 21 of Article 270 of the Tax Code of the Russian Federation).

The director's salary is paid according to the same rules as other employees, there are no differences. Personal income tax is also withheld and insurance premiums are charged.

The only founder and director in one person without an employment contract

There is also the opposite situation, when the founder does not want to enter into an employment contract, but performs management functions. Since we have refuted the arguments of the Ministry of Finance and Rostrud, we will not refer to their conclusions and justifications. Let's go from the other side - from the position of civil legislation.

Article 53 of the Civil Code, art. 32, 33, 40 of the Law “On LLC” indicate that the director is the sole executive body of the company and carries out the current management of the LLC’s activities.

There is no connection here with the presence or absence of an employment contract and payment of wages. From the moment the sole founder, by his decision, assumes the functions of the sole executive body, he receives management powers.

Thus, the only founder who wants to manage his organization himself has the right to either conclude an employment contract or do without it.

SZV-M for founding director

All employers are required to submit a report to the Pension Fund of Russia in the form SZV-M. This must be done no later than the 15th day of the month following the reporting month. Until March 2018, according to the official position of the Pension Fund, SZV-M, there was no need to apply for a founding director with whom an employment contract was not concluded and who does not receive a salary. This was explained by the fact that such persons were not recognized as employees, and therefore as insured persons.

However, the Pension Fund of Russia has changed its position since March 2018. Now SZV-M for the founding director is submitted in any case, regardless:

• — the presence or absence of an employment contract concluded with him;
• - the presence or absence of wage payments to him;
• — the organization conducts business activities or stops them.

A SZV-STAZH report is also submitted to the founder.

Officials explain their demand by the fact that Article 16 of the Labor Code states that even without a concluded employment contract, in this case, an employment relationship arises with the employee due to his actual admission to employment.

On this topic you can read: letters of the Pension Fund of the Russian Federation No. LCH-08-24/5721 dated 03.29.18, 17-4/10/B-1846 dated 03.16.18.

Moreover, regional branches for reinsurance require inclusion in SZV-M not only of the founder in the singular, but also of all founders, if there are several of them.

Is the founding director included in the DAM?

In the Calculation of Insurance Premiums (RAV) form, section 3 includes personalized information on the amount of wages accrued to each employee.

Therefore, if an employment contract is concluded with the founding director and he is paid a salary, then clearly such an individual and payments to him must be reflected in section 3.

However, according to the latest position of officials (letter of the Ministry of Finance dated 06/18/18 No. 03-15-05/41578, letter of the Federal Tax Service No. GD-4-11/6190@ dated 04/02/2018) Section 3 of the DAM should also include information about the director - the sole founder, even if an employment contract has not been concluded with him and he does not receive wages. In this case, subsection 3.2 will have zero indicators.

Officials explain this by saying that despite the lack of payments, such a person does not cease to be insured. And it is insured because there is still an employment relationship, even without an employment contract.

In this article, we deliberately examined not only the problem of concluding or not concluding an employment contract, but also reporting. Because in the same situation the same organs say completely different things. Fantastic! There cannot be an employment contract in principle, but at the same time there is one. As well as the obligation to submit reports.

No matter how you do it, you will still be wrong! Therefore, there is only one conclusion - do what suits you best - by concluding or not concluding an employment contract. But in the reports the only founder and director must be one person.

If you don’t have time to spend time on accounting routine, if you have more important tasks in your business, then write on the page or in the online chat, we will be happy to help you. In the comments you can ask questions about the content of the article if you have any.

25 Feb 2010 09:17

Often the same person is the sole executive body (director) of several companies. Everyone knows that this is not prohibited by law. However, doubts arise when the contract is signed by the same person on both sides. Is this allowed by law? Are there any restrictions on concluding such transactions?

The legal status of the sole executive body (general director, president and others) of a limited liability company is established by Art. 40 of the LLC Law. Thus, as a general rule, the general director of an LLC is elected by the general meeting of the company’s participants for a period determined by the company’s charter, both from among the company’s participants and from outside. An employment contract is concluded between the LLC and the general director. On behalf of the company, it is signed by the person who chaired the general meeting of participants at which the director was elected, or who was specially authorized to do so by a decision of the general meeting of participants. The charter of an LLC may assign the authority to elect a director and enter into an agreement with him to the board of directors.

Similarly, the sole executive body of a joint-stock company is elected by the general meeting of shareholders, if the charter of the joint-stock company does not include the resolution of this issue within the competence of the board of directors (Article 69 of the Law on Joint-Stock Companies). The agreement with the general director on behalf of the JSC is signed by the chairman of the board of directors or a person authorized by the board of directors.

One director in two companies

The law does not establish a ban on performing the functions of a sole executive body in several business companies at once, but it does provide for some restrictions.

In particular, according to paragraph 3 of Art. 69 of the Law on JSC, combining positions in the management bodies of other organizations by a person performing the functions of the sole executive body of the company (director, general director) and members of the collegial executive body of the company (board, directorate) is allowed only with the consent of the board of directors (supervisory board) of the company. There is no such requirement in the LLC Law. However, in Art. 276 of the Labor Code of the Russian Federation contains a rule common to all organizations: the head of an organization can work part-time for another employer only with the permission of the authorized body of a legal entity, or the owner of the organization’s property, or a person (body) authorized by the owner. Thus, it is useful to indicate in the charter of the LLC and the employment contract with the director the need for appropriate approval with the general meeting of the company’s participants or the board of directors. This allows you to do clause 4 of Art. 40 of the LLC Law.

So, the current director of a business company can conclude an employment contract and begin to perform the duties of a director of another company only with the consent of the authorized body of his first employer.

Interested party transactions

The sole executive body of the company acts on behalf of the company without a power of attorney, including when concluding transactions (Clause 1, Article 53 of the Civil Code of the Russian Federation). Thus, it is possible that the agreement will be signed by the same person on both sides. What does the law say about this?

From paragraph 1 of Art. 45 of the Law on LLC follows that a person performing the functions of the sole executive body of a company is recognized as interested in a transaction being carried out by the company if he himself is a party to the transaction, acts in the interests of third parties in their relations with the company, or holds a position in the management bodies of a legal entity that is party to the transaction. Therefore, an agreement between companies that have the same director is recognized as an interested party transaction for these companies. To ensure the legitimacy of this transaction, special rules formulated in Art. 45 of the LLC Law, namely:

The director of the company must bring to the attention of the general meeting of the company's participants information about the legal entities in which he holds a position in the management bodies (in writing);

A transaction in which there is an interest must be approved by a decision of the general meeting of the company's participants, which is adopted by a majority vote of the total number of votes of the company's participants who are not interested in making such a transaction (the decision to approve the transaction must indicate the person or persons who are the parties beneficiaries in the transaction, price, subject of the transaction and its other essential conditions).

In accordance with paragraph 7 of Art. 45 of the LLC Law, if a company has a board of directors, the decision to approve the transactions under consideration can be attributed by the charter to its competence, except for cases where the transaction price exceeds 2% of the value of the company’s property according to the financial statements for the last reporting period.

A transaction in which there is an interest and which has not been approved by the company’s participants may be declared invalid at the request of the company or its participant (Clause 5 of Article 45 of the LLC Law).

Similar norms are provided for by the Law on JSC (Chapter XI). The features of informing about interest in a transaction and making a decision on its approval in a joint-stock company differ from the rules in force for LLCs and are determined by the organizational and legal form.

Special case: the director is the only participant in the company

A situation subject to special regulation is if the head of the organization is the only participant (shareholder) of the company.

First of all, according to Art. 273 of the Labor Code of the Russian Federation, such a manager is not subject to the provisions of Chapter. 43 of the Labor Code of the Russian Federation, dedicated to the peculiarities of regulating the work of the head of an organization. This means that the manager is not obliged to seek the consent of the company’s management body to work part-time. Moreover, this statement is true not only in a situation where one person is the only participant in two organizations.

Thus, a person hired as a director of a business company and who is not its sole founder should not ask permission from his employer to create a new organization in which he will be the only participant and director. The explanation is simple: if a citizen is both the sole founder and the sole executive body, concluding an employment contract with himself is impossible (see Letters of the Ministry of Health and Social Development of Russia dated August 18, 2009 N 22-2-3199, Rostrud dated December 28, 2006 N 2262-6- 1). Consequently, an employment contract is not concluded with another employer, performing the functions of a director does not correspond to the concept of part-time work (Article 282 of the Labor Code of the Russian Federation), which means there is no need to seek consent (Letter of Rostrud dated July 28, 2008 N 1731-6-0).

Note that the requirement of paragraph 3 of Art. 69 of the Law on JSC on combining the functions of a director in a JSC and positions in the management bodies of other organizations only with the consent of the board of directors of the JSC is still in effect.

Thanks to the reservations in paragraph 6 of Art. 45 of the Law on LLC and paragraph 2 of Art. 81 of the Law on JSC, the provisions on interested party transactions are not applied to companies consisting of one participant and a shareholder, respectively, who simultaneously exercises the functions of the sole executive body of the company. Thus, two societies, solely created and governed by the same citizen, can enter into contracts without hindrance. However, if one party to the transaction is a similar company, and the other is a company with several participants, the director of the second company must declare his interest in the transaction and obtain the approval of its participants.

Tax risks

Concluding transactions by the same citizen on behalf of two organizations is not a reason for recognizing taxpayers as unscrupulous (Decision of the Moscow Arbitration Court dated July 2, 2008 N A40-18480/08-20-35), and the tax benefit received is unjustified (naturally, in the absence of other signs of bad faith).

Having sufficient grounds to believe that the simultaneous management of two organizations by one person is capable of influencing the results of transactions between them, the court may recognize these organizations as interdependent (clause 2 of Article 20 of the Tax Code of the Russian Federation). And this will give inspectors a chance to prove the use of prices that do not correspond to market prices and recalculate taxes based on market prices (clause 1, clause 2, article 40 of the Tax Code of the Russian Federation).

Antitrust requirements

It should be taken into account that business companies in which the same individual performs the functions of the sole executive body are recognized as a group of persons who are subject to all prohibitions established by law on the actions (inaction) of an economic entity (clause 4, clause 1, clause 2 Article 9 of the Federal Law of July 26, 2006 N 135-FZ “On the Protection of Competition”).

The current legislation does not limit the number of legal entities that one citizen has the right to establish and which he can manage. The conclusion of transactions is also completely in the power of this citizen. However, in a situation where a business company has several participants, their rights and interests are protected: they consent to the director of their company working part-time in other organizations and can challenge an interested party transaction made without approval. Tax risks consist only of possible control of prices applied in transactions.

There are two organizations in which the gene. director is one person, he is also a founder in one of these companies. Is it possible to conclude an interest-bearing loan agreement between these legal entities? Could there be any negative consequences and reactions from the tax authorities?

In your situation, a loan agreement may be concluded between two organizations. The current legislation does not contain any restrictions in this regard. Moreover, such a transaction may be considered controlled due to the fact that it was concluded between interdependent organizations. Organizations (individuals) carrying out controlled transactions are required to notify tax inspectorates about them. Notification of a controlled transaction must be submitted by each of its participants. In addition, representatives of the Federal Tax Service of Russia monitor the correct application of prices for tax purposes during special inspections.

The rationale for this position is given below in the recommendations of the Glavbukh System.

How to draw up a contract

Loans provided by the organization can be:
– monetary or property (in kind);
- interest-bearing or interest-free.

This follows from the provisions of articles of the Civil Code of the Russian Federation.

The amount of interest on the loan can be specified in the agreement *. If there is no such clause, the recipient of the loan (borrower) must pay interest to the organization at the refinancing rate in effect on the date of repayment (the entire loan amount or part thereof).

The procedure for paying interest can also be stipulated in the contract. But if this condition is absent, the borrower must pay interest monthly until the loan is fully repaid.

If an organization provides an interest-free loan, this condition must be expressly stated in the contract. The exception is loans issued in kind. By default they are interest-free. But if the organization intends to receive interest from the borrower, their amount and payment procedure should be stipulated in the agreement.

In 2013, controlled transactions fell under special tax control if the total income on them exceeded 80 million rubles. For controlled transactions completed after December 31, 2013, no minimum value of total income has been established for these purposes. Therefore, the tax service can check the application of prices in such transactions without restrictions.*

This procedure is provided for in Article 105.17 of the Tax Code of the Russian Federation and paragraph 7 of Article 4 of Law No. 227-FZ of July 18, 2011.

Special checks are carried out:

• on the basis of notifications of controlled transactions, which organizations (individuals) are obliged to send to tax inspectorates (only organizations or individuals that sent the notification can be the object of inspection);
• on the basis of notices from tax inspectorates conducting on-site (desk) audits (only the organizations or individuals specified in the notice can be the object of the audit);
• when identifying controlled transactions during repeated on-site tax audits conducted by the Federal Tax Service of Russia.

Notice of controlled transactions

Organizations (individuals) carrying out controlled transactions are required to notify tax inspectorates about them. A notification of a controlled transaction must be submitted by each of its participants.* If it is discovered that one of the parties to the transaction has not submitted a notification, the tax inspectorate will send a notice of its transactions to the Federal Tax Service of Russia and at the same time may report this to the inspectorate at the location of the other party to the transaction. If it turns out that the other party to the transaction did not submit the appropriate notification, they may also be held liable for taxation.

This procedure follows from the provisions of paragraphs and article 105.16 of the Tax Code of the Russian Federation and letter of the Ministry of Finance of Russia dated September 6, 2012 No. 03-01-18/7-127.

Help article:Interdependent persons are, in tax law, citizens and (or) organizations, the relationships between which may influence the conditions and (or) results of transactions and (or) the economic results of their activities (the activities of the organizations they represent)*. The composition of interdependent persons and the grounds on which citizens and organizations are recognized as interdependent are defined in

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As part of tax planning projects, we often have to resort to such a legal optimization tool as splitting a business into several legal entities. In addition to safely reducing taxes, this allows you to solve many other tasks that are no less important for business: from diversifying risks associated with unscrupulous suppliers to protecting company assets from tax authorities and creditors in the event of unforeseen bankruptcy.

Today we will talk about how to safely introduce several legal entities into the business structure that use the simplified tax system in order to reduce the company’s tax burden.

What should you definitely not do?

If the company is already on a “simplified” basis, but the revenue volume is about to exceed permissible limits- there is a great temptation to open another legal entity with the same type of activity, the same founders and at the same legal address in order to continue to conduct business on preferential tax terms.

Or the owner of a company with a general taxation system may come up with the sensible idea of ​​dividing his business into two identical legal entities with the simplified tax system, placing the proceeds for each of them in legal limits and thereby ensure a reduction in the tax burden.

So here it is. In both cases, such a “frontal” approach will be illegal, since the obvious goal is a deliberate reduction in taxes. Recently, tax inspectors have successfully proven the illegality of this approach in court.

When breaking up your business to reduce taxes, you must follow critical safety rules.

What benefits does “simplification” provide?
Let's look at a specific example of how much taxes can be reduced by replacing one legal entity with VAT by two separate companies operating without VAT (i.e. using the “simplified tax system”).
Let’s say the company’s revenue is 100 million rubles. / year. And its expenses for the same period amounted to 65 million rubles. (VAT included).
In this case, the company must pay the following amounts to the state treasury during the year:

• RUB 5.34 million in the form of value added tax;
• RUB 5.93 million in the form of income tax.

In total, the total tax burden of the company from our example will be 11.27 million rubles/year or 13.3% of revenue (net of VAT). Now suppose that this company is divided into two companies, each of which applies the simplified tax system. With similar indicators, we will have to pay the following amounts to the treasury:

• RUB 5.25 million or 5.25% of revenue (if applicable USN-15 mode);
• 6 million rub. or 6% of revenue (if the regime is applied USN-6).

Thus, by eliminating the company from VAT, we will reduce taxes (as a percentage of revenue):

• 2.5 times – when the business is divided into 2 companies with USN-15;
• 2.2 times – when the business is divided into 2 companies with the simplified tax system-6.

Safety Rule No. 1. No spontaneous opening of new companies

Tax optimization is a project. And, like any project, it requires competent preliminary preparation. Therefore, the first thing that is important to understand is the number of participants in the new business structure.

It is better to proceed from the forecasted revenue for the coming year. This will allow you to correctly calculate how many new legal entities on the “simplified” system will be needed and will help avoid the haphazard opening of new LLCs as soon as the indicators of one of them approach to limits.

Security Rule No. 2. No affiliation of legal entities

The Federal Tax Service Inspectorate inevitably becomes suspicious of an illegal tax reduction and the commission of a tax crime if Several legal entities in the simplified form have the same general director or founder. To see this, inspectors only need to obtain information from open sources (for example, from an extract from the Unified State Register of Legal Entities).

Of course, the interdependence of participants in itself is not evidence of receiving unjustified tax benefits and tax evasion. But in most cases, this situation is a reason for a thorough tax audit. And already as part of the inspection, inspectors will begin to dig deep and will be able to prove the relationship between legal entities for the purpose of tax optimization if:

Organizations closely interact with each other on non-market conditions. For example, to replenish working capital, one company provides interest-free loans to another or sells goods to it at a price lower than that of external counterparties.

For security purposes, it is necessary to avoid overlaps in activities, such as issuing loans to each other, resale of goods, works or services. That is, purely externally, the activities of companies should be independent.

Or the relationship between companies must be convincingly justified by business objectives (see below - “Security Rule No. 3”)

The companies employ the same employees. Generally, revenue sharing firms do not hire new employees. Financial documents are signed by the same managers as in related organizations. Most often, they are registered part-time, which clearly proves the interconnection of the companies.

For security reasons, each company must have its own (albeit small) staff of employees who will not be employed part-time in other organizations of the group.

The companies are served by the same full-time accounting department. Often, despite the presence of several seemingly independent legal entities, financial accounting for them is carried out by the same accounting service, which is part of the infrastructure of the main company. It is obvious that the main activity of this company is the sale of goods or the provision of services, and not accounting. This gives inspectors a reason to believe that this particular company is the center of decision-making and in reality only it functions, and the rest exist to save taxes.

To protect your business from tax claims, it is enough to outsource the accounting of related legal entities to a specialized accounting company.

Safety Rule No. 3. Business division must be justified by business objectives

If affiliation cannot be avoided, then when introducing a new legal entity into the business infrastructure, it is necessary to have a clear idea of ​​what business goal it will pursue. The official reason for dividing the business must be convincing in the eyes of tax inspectors.

For example, companies within the Group may sell different types of goods. Or you can differentiate their activities on a territorial basis. There are many options.

But only in this case will it be possible to justify the feasibility of having several “simplified” companies as part of one Group of companies.

Safety Rule No. 4. Independence in conducting activities of each participant

Lack of self-sufficiency is the main quibble of tax officials, along with interdependence. In the eyes of tax authorities, each company should be completely independent. What does this mean? The tax office must see that each participant is an independent business unit, i.e. there are fixed assets on the balance sheet, it bears expenses and has a current account and specialized specialists on staff. In our opinion, the independence of each legal entity in terms of doing business enhances protection in real court cases within the framework of fragmentation and complicates the implementation of subsidiary liability.

So, by adhering to the above principles, business division can be a profitable and convenient tool for legal tax reduction. And in case of claims from the Federal Tax Service, it will always be possible to justify the reasons for the division of business processes into different companies with non-tax purposes.

Since the activities of each company have its own specifics, we develop individual solutions for a specific client.

If you need to properly divide a business, or you want to put things in order in several open LLCs without waiting for a tax audit and additional assessments, our tax consultants are always ready to help.

We hope to be useful to you!

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