At the same time, the tax authorities prohibit giving orders to the self-employed who worked for the same company on a regular basis.
Yulia Suntsova, Natalya Seybil
“Remunerations paid by domestic employers to remote workers outside the country are classified as income from Russian sources,” the Ministry of Finance said in a statement. A couple of lines actually significantly worsen the position of both employees (temporarily going on "vacations" to friendly CIS countries), and employers, and the business as a whole.
Now the source of labor income of non-residents is determined by the place of work, and not by the place of payment of wages. In other words, if a person works for a Russian company, but is abroad, his income is not considered to be received from a Russian source and should not be taxed in Russia. If the proposals of the Ministry of Finance are accepted, most likely, they will have to pay taxes in Russia from the salary, that is, they will withhold 30% of personal income tax for non-residents instead of 13%.
At the same time, the employee does not have to permanently reside abroad; Russian citizens who spend together (not necessarily in a row) in Russia less than 183 days a year are included in tax non-residents. The FTS interprets the 12-month period as a calendar year lasting from 1 January to 31 December.
For such cases, there seemed to be an option left - to quit the company and become self-employed (who are not being touched yet) and continue working for the same employer. But the tax authorities made sure in advance here too: according to the law, the employer company does not have the right to give orders to the self-employed, who were previously full-time employees of the same employer, the ban is valid for two years after the dismissal. But it remains possible to cooperate with individual entrepreneurs and organizations or work under a civil law contract.
In the context of an already growing shortage of personnel, what consequences await the economy and the labor market from the adoption of this law? Will employers negotiate with the employee like a gentleman and look for workarounds? And most importantly - will it help to return personnel to the country? These and other questions of "NI" were discussed with the experts.
"The introduction of a 30% tax for those who left, of course, translates as: “Guys, you are traitors and traitors. You have to pay top notch." In addition, now, when the budget is shrinking, even these small amounts will not be superfluous - the kitten will be squeezed to the last drop. But I'm not sure that such a measure will stop a person who decides to leave - his strategy is mainly based on comparing the risks that exist for him in Russia. And the quality of the future life of a particular person will depend on how interested the employer is in him. If the employer is interested, fictitious contracts will be concluded", - says Sergey Smirnov, Doctor of Economics, researcher at INION RAS.
Let's say that a person who left for Moscow has a wife, sister, mother in Russia, and the contract is concluded with her. The second option is that the employer takes this tax, these costs on himself. The third option is to go into the black zone. There is a reliable person, an intermediary, a pensioner, for example, who, for a certain commission, concludes an agreement for himself. This option is beneficial to everyone. Corruption is also not excluded. Migrants from Central Asia have an excellent business of obtaining border crossing stamps. The appearance of stamping points on the borders with the CIS countries is quite possible...
"To save a valuable employee, you can transfer him to remote work in absentia using an enhanced qualified or unqualified electronic signature. With its help, you can conclude an additional agreement on remote work in electronic form. With GPC agreements and cooperation on IP, everything is also not so simple. If the labor inspectorate determines that the employee performs work within a certain period of time and complies with the internal rules of the employer, it can recognize such a relationship as an employment relationship and oblige the company to conclude an employment contract with the employee. In this situation, it seems that employers will either hide the fact of working with tax non-residents, or formally open other legal entities to register remote non-resident employees as self-employed", - says Olga Abashnikova, a leading expert methodologist at Unicon Outsourcing.
"The labor market has been changing dramatically since March-April, when the first “relocation” wave occurred. At the end of September there was a second wave. I see the next year in even more gloomy colors for employers and businesses. Now, I think, we are only at the starting point of mega-painful changes that are shaking the labor market for highly qualified specialists. The 30% tax is trying, among other things, to stop the brain drain, but even if this partially succeeds, it will not bring happiness to anyone in this form. The problem with good shots is really getting worse. Will people return from these “vacations”, how many of them will return? Suppose we dodge and by hook or by crook we find here the one who did not leave. But now you can’t lure male applicants with such hr-buns as VHI, a beautiful office and corporate football, now for them the first-priority bun is a “delay”, a reservation, and only a tiny percentage of employers can give it", - says the director of the federal advertising agency, wishing to remain confidential.
Currently, the time is approaching for obtaining the status of non-resident emigrants of the first wave (March-April). For example, an employee left in March and has been working remotely ever since. Since September, he has already become a tax non-resident, and from September the company from his salary should pay not 13%, but 30%. What does the company do? Subtracts this additional tax burden from salaries from September to December. But (!) in addition to this, the company is obliged to deduct the difference of 17% (30% -13%) for the period from March to August, because the company itself continues to be a tax agent, and non-residency covers not only those six months that the employee was not in country, but the entire calendar year.
Thus, from September, 30% and 17% for the previous months from the departure period are deducted from the employee's salary. At the same time, it is impossible to deduct more than 50% of the salary according to the law. Accordingly, everything that cannot be deducted will fall on the shoulders of the employee himself, and the tax next year will come to him as to an individual. Well, either the company will agree to take on this additional tax burden. I doubt the mass nature of such gestures of good will, because it’s not that business in Russia now has prerequisites for this ... Now business needs to solve, how to say, other existential tasks.
A 50% loss of income is, to put it mildly, an unmotivating story for an employee. In addition, the relationship with the employer is becoming more complicated. The financial burden on the latter increases significantly, and, of course, the business will either try to shift this burden onto employees, or will significantly sacrifice profits. Those who have "fat" will benefit in the long run. But how many of these are left? Yes, and what's next? Zhirok will end, but why continue to keep an unprofitable business is a big question.
Entrepreneurs again face a choice - closing or going into the black zone. This transition has already begun, and therefore next year will be the year when they come to the whole business with a big magnifying glass and the same big fines, I definitely wouldn’t hope for a liberal attitude and “averting eyes”, says the source.
What workarounds are already being practiced? They open representative offices abroad and arrange / relocate employees there. But in order for everything to restart successfully, such a representative office must also generate local income, and this is not easy, because entering the foreign market and immediately generating a decent income that covers the costs of employees and generates profit is something in the language of “successful success,” says the director of the advertising agency.
"The option with international branches disappears, since the parent company will be identified and, if it is Russian, then, as before, in case of loss of residence, 30% of personal income tax will be charged to the treasury. Previously, employers with foreign addresses (for example, foreign branches of Russian companies) could provide an employee with the opportunity not to pay personal income tax, since the salary could be equated with income from foreign sources. As for the rest, I do not foresee major changes: the loss of residency has previously led to a 30% tax. Non-white companies will continue on their way. But most Russian companies do not have foreign branches, they will continue to exist in the current mode", - says HR expert Yana Alferova.
"Remote mode in our company has been practiced for a couple of decades, including with employees who often live abroad. The emerging problem number 1 is not even that they will have to pay additional tax, but that it is impossible to easily transfer money to them for the work done. Banks are increasingly asking questions about the origin of money, threatening to block accounts. All this is proved and formalized, but it always requires additional efforts that take time and nerves", - says Yevgeny Safronov, editor-in-chief of the InterMedia news agency.
The amounts that will be earned in this way are insignificant for the budget, first of all, by tightening control, the authorities are trying to prevent the outflow of personnel. For employees, unlike the budget, losses can be fatal. The total tax burden on employee remuneration, including funds, now stands at 38-40% per ruble. If the law is adopted, employees outside the Russian Federation will have to pay 60%, and organizations paying VAT and all 80-90%.
"Measures, however, are not very effective, in my opinion. All this will lead to an exit from the legal field. You can, for example, pay the mother of a journalist or programmer, who is in Moscow, for her son's work abroad. In the creative industries, where intellectual property is significant - copyright and related rights, of course, problems arise. A remote accountant will not have such difficulties. But all these innovations will certainly complicate the work of entrepreneurs and have a negative impact on the economy. Our state makes unfinished decisions without discussing them with the business community, then entrepreneurs grab their heads, write protests, the authorities somehow react, but time passes, society and the economy are out of balance”, - Safronov notes.
HeadHunter labor law lawyer Tatiana Nechaeva:
- The adoption of the law will not greatly affect the relationship between the employer and the employee. The current legislation does not regulate work with employees located outside the Russian Federation. The legislation does not require specifying the location of an employee in contracts and does not oblige to track his whereabouts. According to the logic of the legislator, we only know that it is impossible to provide the necessary level of labor protection if the employee is outside Russia.
The Ministry of Labor gave recommendations for such situations: to conclude civil law contracts. That is, terminate the employment relationship between the company and the employee and switch, for example, to cooperation with individual entrepreneurs. But it is important to note that the Labor Code also does not contain grounds for termination of employment relations in the event of an employee moving outside of Russia. It is likely that many companies and employees will look for workarounds, as it becomes unprofitable for the employee to cooperate within the framework of an employment relationship. 30% is a really huge portion of the income that the employer will have to withhold while acting as a withholding agent. Nevertheless, I do not think that a large number of employers are ready to consciously violate the norms of the law and replace labor relations with civil law ones.
Perhaps, during the development of the bill, the legislator will propose to separate the period of 183 days and not associate it with the status of a tax resident. A situation may arise when 30% of taxes are paid for the moment when the employee was outside the Russian Federation. In this case, any schemes that can be invented will not be relevant. The interdepartmental exchange of information about where the employee was located (in the territory of the Russian Federation and abroad) is very well established.