In accordance with the concluded agreement, the organization selects personnel for the customer. The executing organization compensates for the cost of travel, accommodation and meals for interview participants (applicants) at the interview location. The contractor presents the amount of costs to the customer for reimbursement.
Is the amount compensated by the contractor to applicants income received by these persons in kind? Should the compensation amount be subject to personal income tax and insurance premiums?

Personal income tax

The list of income related to income from sources in the Russian Federation is given in the Tax Code of the Russian Federation, and the list of income related to income from sources outside the Russian Federation is given in the Tax Code of the Russian Federation. These lists are not exhaustive and also include other income received by the taxpayer as a result of his activities in the Russian Federation and outside the Russian Federation, respectively (Tax Code of the Russian Federation).

When deciding on the possibility of classifying certain payments to an individual as part of the personal income tax tax base, one should be guided by the general definition of the concept of “income” for tax purposes given in the Tax Code of the Russian Federation. According to this norm, income is recognized as an economic benefit in monetary or in-kind form, taken into account if it is possible to assess it and to the extent that such benefit can be assessed, and determined, in particular, in accordance with the chapter “Tax on personal income” of the Tax Code of the Russian Federation .

According to the Ministry of Finance of Russia, payment (reimbursement) by the organization of the cost of travel and accommodation of interview participants at the interview location is income received by these persons in kind, since such interviews are conducted, among other things, in the interests of persons applying for a job (see, for example, Ministry of Finance of Russia dated October 28, 2010 N 03-03-06/1/669, dated August 19, 2010 N, dated August 6, 2010 N).

Moreover, if payment (reimbursement) of candidates’ expenses for participation in an interview is made by an organization that provides search and selection services, then it is the organization that bears the responsibilities of the tax agent for calculating, withholding and transferring personal income tax to the budget system (Ministry of Finance of Russia dated August 19, 2010 N 03-03-06/1/562, dated 02/08/2007 N ).

Judicial practice on situations similar to the one under consideration is not numerous. At the same time, in their decisions, the courts note that travel expenses for interviews of individuals and their accommodation are made in the interests of the organization, therefore individuals - potential employees do not have income subject to personal income tax (see, for example, the Thirteenth Arbitration Court of Appeal dated 05.04 .2012 N 13AP-3084/12, Federal Antimonopoly Service of the North-Western District dated 08/17/2012 N).

Thus, the question of whether candidates for a position will generate income if they are reimbursed for expenses associated with their participation in interviews is controversial. Therefore, if an organization decides not to charge personal income tax in the situation under consideration, it will most likely have to defend its position in court.

If the organization is not ready for disputes with the tax authority, then it should calculate, withhold from the individual invited for an interview, the amount of personal income tax on income received in kind, and transfer it to the budget system of the Russian Federation (, Tax Code of the Russian Federation). At the same time, the organization must remember that payment of tax at the expense of tax agents is not allowed (Tax Code of the Russian Federation).

Insurance premiums

In accordance with the Federal Law of July 24, 2009 N 212-FZ “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,” payments and other remunerations accrued by payers of insurance contributions in the benefit of individuals within the framework of labor relations and civil contracts, the subject of which is the performance of work, the provision of services, under copyright contracts, in favor of the authors of works under agreements on the alienation of the exclusive right to works of science, literature, art, publishing license agreements, licensing agreements on granting the right to use works of science, literature, art, including remunerations accrued by rights management organizations on a collective basis in favor of the authors of works under agreements concluded with users.

According to the Federal Law of July 24, 1998 N 125-FZ "On compulsory social insurance against industrial accidents and occupational diseases", the object of taxation of insurance contributions for compulsory social insurance against industrial accidents and occupational diseases are payments and other remunerations paid by insurers in the benefit of the insured within the framework of labor relations and civil contracts, if, in accordance with the civil contract, the policyholder is obliged to pay insurance premiums to the insurer.

Since the candidate who is reimbursed for the costs of participating in the interview does not have an employment or civil law relationship with the organization, there is no subject to insurance premiums, as well as insurance contributions for compulsory social insurance against industrial accidents and occupational diseases.

Indirectly, our position is confirmed by the Ministry of Health and Social Development of Russia in paragraphs. 2.2 clause 2 of letter dated 05.08.2010 N 2519-19, in which the department, in relation to payment by an organization for training within the framework of a student contract, which is not an employment contract or a civil contract for the performance of work or provision of services, noted that the specified payment is not subject to insurance premiums.

Travel allowance provided under the legislation of the Russian Federation to certain categories of employees, not subject to insurance contributions.

Prepared answer:

Expert of the Legal Consulting Service GARANT

Khmelkova Elena

Response quality control:

Reviewer of the Legal Consulting Service GARANT

auditor, member of the MoAP Elena Melnikova

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

Issue dated December 19, 2014

Account correspondence schemes

Selection based on materials from the information bank "Correspondence of Accounts" of the ConsultantPlus system

Situation:

How to reflect in the organization's accounting the costs of paying reimbursement of travel costs to nonresident candidates to the interview site for the purpose of personnel selection?

An organization that has a separate division in another region, in order to select a candidate for the position of its head, organizes an interview at the location of the head office. Arriving candidates are compensated for their travel expenses based on the submitted travel documents by paying money from the organization's cash desk. The amount of compensation this month was 15,000 rubles. (VAT is not highlighted in the travel documents (bus tickets) submitted by candidates). The organization uses the accrual method of tax accounting.

Account correspondence:

Personal income tax (NDFL)

In accordance with paragraph 1 of Art. 210 of the Tax Code of the Russian Federation, when determining the tax base, all income of the taxpayer received by him both in cash and in kind, or the right to dispose of which he has acquired, is taken into account.

The list of income exempt from taxation is contained in Art. 217 Tax Code of the Russian Federation. All types of compensation payments established by the legislation of the Russian Federation (within the limits established in accordance with the legislation of the Russian Federation) related, in particular, to the performance of work duties by the taxpayer (including moving to work in another area) are not subject to personal income tax (clause 3 Article 217 of the Tax Code of the Russian Federation, Article 169 of the Labor Code of the Russian Federation).

However, at the time of the interview, candidates are not in an employment relationship with the organization, and participation in the interview does not constitute a move to work in another location. That is, the travel compensation in question does not fall within the scope of the above norm. In addition, an invitation to an interview is carried out not only in the interests of the organization, since such an interview is also conducted in the interests of individuals applying for employment in this organization. Taking into account the above, the payment of travel compensation to the applicant is his income and is subject to personal income tax. Similar explanations are given in the Letter of the Ministry of Finance of Russia dated September 22, 2014 N 03-04-06/47325, as well as in the Letter dated June 30, 2014 N 03-04-06/31359 (in relation to the situation when the organization directly pays for the candidate’s travel to the interview site ).

Let us note that the occurrence of this income does not depend on whether an employment (civil law) contract will be concluded with the applicant in the future.

For additional information on the issue of personal income tax assessment of the cost of travel to the interview site for candidates for a vacant position, see the Practical Guide to Personal Income Tax.

According to paragraph 1 of Art. 226 of the Tax Code of the Russian Federation, an organization, as a result of relations with which an individual receives income, is recognized as a tax agent for personal income tax. In this case, the organization is obliged to calculate and withhold the corresponding amount of personal income tax directly from the income of an individual upon their actual payment (Clause 4 of Article 226 of the Tax Code of the Russian Federation).

The organization is obliged to transfer the withheld personal income tax to the budget within the period established by clause 6 of Art. 226 of the Tax Code of the Russian Federation - in this case, no later than the day of actual receipt of cash from the bank for payment of compensation.

Insurance premiums

Payment of travel compensation to individuals - candidates for a vacant position in an organization to the interview site is not made within the framework of labor relations. Accordingly, such payment is not subject to insurance premiums provided for in Part 1 of Art. 7 of the Federal Law of July 24, 2009 N 212-FZ "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", paragraph 1 of Art. 20.1 of the Federal Law of July 24, 1998 N 125-FZ "On compulsory social insurance against industrial accidents and occupational diseases."

The procedure for conducting cash transactions

Payment of cash from the organization's cash desk is carried out using cash orders upon presentation of a document confirming the identity of candidates (clause 6, clause 6.1 clause 6 of Bank of Russia Directive No. 3210-U dated March 11, 2014 "On the procedure for conducting cash transactions by legal entities and simplified procedure for conducting cash transactions by individual entrepreneurs and small businesses").

Accounting

Travel compensation for candidates for a vacant position is included in expenses for ordinary activities and can be taken into account as management expenses, which are fully taken into account in the cost of sold products, goods, works, services in the reporting period of their recognition, if such a procedure is provided for by the accounting policy organizations (clauses 5, 7, 9 of the Accounting Regulations “Expenses of an Organization” PBU 10/99, approved by Order of the Ministry of Finance of Russia dated May 6, 1999 N 33n). This expense is recognized on the date the organization becomes obligated to pay this compensation, for example, on the date of the manager’s order to issue it in accordance with the tickets submitted by candidates (clause 16 of PBU 10/99).

For settlements with candidates, account 76 “Settlements with various debtors and creditors” can be used. Accounting records for transactions related to the payment of compensation to applicants are made in accordance with the Instructions for the application of the Chart of Accounts for accounting of financial and economic activities of organizations, approved by Order of the Ministry of Finance of Russia dated October 31, 2000 N 94n, and are shown below in the table of transactions.

Corporate income tax

Costs associated with the recruitment of employees are included in other costs associated with production and sales, based on paragraphs. 8 clause 1 art. 264 Tax Code of the Russian Federation. The amount of compensation in question can be taken into account when calculating the tax base for income tax on this basis, provided that the payment of compensation is economically justified and documented (clause 1 of Article 252 of the Tax Code of the Russian Federation). This conclusion can be drawn from Letters of the Ministry of Finance of Russia dated October 28, 2010 N 03-03-06/1/669, dated August 19, 2010 N 03-03-06/1/562.

T.E. Melikovskaya

Consulting and analytical accounting center and taxation

Organizations often conduct recruitment events in newly opened regional offices. The final decision on accepting candidates is made after additional meetings and testing, for which candidates are invited to the regional centers of the organization. When conducting such an interview, the organization pays for the candidate’s travel and accommodation.
Organizations from which or as a result of relations with which the taxpayer received income are required to calculate, withhold from the taxpayer and pay tax amounts. An exception may be income in respect of which the calculation and payment of tax are carried out in accordance with Art. Art. 214.3, 214.4, 214.5, 214.6, 226.1, 227, 227.1 and 228 of the Tax Code of the Russian Federation (hereinafter referred to as the Code), this is how these articles are regulated (clause 2 of Article 226 of the Tax Code of the Russian Federation).
What to do with personal income tax when paying for candidates the cost of travel and accommodation at the interview location?

If the candidate is reimbursed for his expenses

If the candidate pays for his or her own travel and accommodation to the interview site, the organization may be responsible for reimbursement of these expenses. At the same time, she herself pays tax to the budget system.
An organization withholds personal income tax upon actual payment of income (clause 4 of Article 226 of the Tax Code of the Russian Federation), the taxpayer receives a refund minus tax. In this case, the organization is obliged to transfer the amount of calculated tax no later than the day of actual receipt of money from the bank to pay the candidate the expenses reimbursed to him (clause 6 of Article 226 of the Tax Code of the Russian Federation).
In addition, the organization must submit to the tax authority at the place of its registration information about the candidate’s income and the amounts of taxes accrued, withheld and transferred to the budget system of the Russian Federation for this tax period. Such information is submitted annually no later than April 1 of the year following the expired tax period - the calendar year (clause 2 of Article 230 of the Tax Code of the Russian Federation).
Reference. The Tax Code of the Russian Federation states that amounts associated with travel to work in another area and reimbursement of travel expenses may be exempt from personal income tax (clause 3 of Article 217). Compensation for expenses when moving to another area is provided only if an employment contract is concluded (Article 169 of the Labor Code of the Russian Federation). And for candidates, these trips do not mean moving to work in another area. Expenses associated with travel and accommodation are incurred for the purpose of further employment not of the employee, but only of the job seeker. Thus, payment by the organization of the cost of travel and accommodation of interview participants at the interview location is the candidate’s income. And this income is subject to personal income tax in accordance with the generally established procedure.

If the candidate uses the organization's resources

If an organization pays a candidate’s travel and accommodation costs without paying any income in cash (for example, issues a travel ticket), then it does not have the opportunity to withhold personal income tax. In this case, she is obliged, no later than one month from the end of the tax period in which the payment occurred (before January 31 of the following year), to inform the taxpayer and the tax authority at the place of her registration in writing about the impossibility of withholding tax (clause 5 of Article 226 of the Tax Code of the Russian Federation ). According to the approved Order of the Federal Tax Service of Russia dated September 16, 2011 N ММВ-7-3/576@ "On the procedure for submitting information on the income of individuals to the tax authority and reporting the impossibility of withholding tax and the amount of tax on personal income" (hereinafter referred to as Order N ММВ -7-3/576) information must be provided in the format of the 2-NDFL certificate. Certificate form 2-NDFL was approved by Order of the Federal Tax Service of Russia dated November 17, 2010 N ММВ-7-3/611@.
In this case, the individual - the recipient of the income - calculates, transfers to the budget and reports directly (clause 4, clause 1, article 228 of the Tax Code of the Russian Federation). The declaration is submitted by him at his place of residence in form 3-NDFL (clause 3 of article 228 of the Tax Code of the Russian Federation). The tax is transferred no later than July 15 of the year following the reporting year (clause 4 of article 228 of the Tax Code of the Russian Federation).

A different point of view

However, many courts consider this issue controversial. The arbitrators are of the opinion that payment for travel and accommodation of candidates for an interview is not subject to personal income tax, regardless of whether the candidate is hired or not. They argue that if the candidate is hired, then expenses incurred for travel and accommodation will be associated with the performance of work duties, and therefore will be exempt from tax in accordance with clause 3 of Art. 217 of the Tax Code of the Russian Federation. If a candidate does not receive a vacant position, he does not receive any economic benefit. In this case, the arbitrators believe that the expenses were incurred solely for the purposes of the organization, and therefore no taxable income arises (Resolution of the Federal Antimonopoly Service of the North-Western District of August 17, 2012 N A56-35143/2011).
The Ministry of Finance was previously of the opinion that payment for travel and accommodation of a candidate at the place of interview is subject to personal income tax (Letter of the Ministry of Finance of Russia dated 06.08.2010 N 03-04-06/6-170). In the Letter, the financiers referred to clause 1 of Art. 210 of the Tax Code of the Russian Federation, which prescribes taking into account in the tax base for personal income tax all the taxpayer’s income received both in cash and in kind, as well as income for which he did not have the right to dispose of. Payment, in the opinion of the Ministry of Finance, for travel and accommodation services is made in the interests of the candidate and is recognized as his income received in kind. Consequently, the Ministry of Finance recognized that such compensation for the cost of travel and accommodation of the candidate at the interview site is taxable income.
To summarize, let’s say that the position of the Ministry of Finance is clear and justified. If candidates pay for travel to an interview, and the company then reimburses the expenses, then personal income tax will need to be withheld from them. And if a company pays for applicants’ tickets and does not pay any money, it is necessary to report the impossibility of withholding personal income tax to the tax office.

Many companies, when searching for employees for vacant positions, resort to the services of organizations specializing in personnel selection. Moreover, this option is preferred even by those organizations that have their own personnel department. Let's look at what tax risks may arise when carrying out such a business transaction.

In ch. 25 “Organizational Income Tax” of the Tax Code of the Russian Federation there is a special norm that directly allows you to take into account the costs of recruiting employees (including the services of specialized personnel selection organizations) as part of other expenses associated with production and sales. This is pp. 8 clause 1 art. 264 Tax Code of the Russian Federation. From the content of this norm it follows that the costs of recruiting workers may include the costs of searching and selecting personnel that meet the employer’s requirements, including payment for the services of recruitment agencies and other specialized organizations, payment for advertising in the media or otherwise regarding vacancies and other similar expenses associated specifically with the search for workers (Resolution of the Moscow District Court of October 27, 2014 N F05-12749/14 in case N A40-119798/13-107-447).
It would seem that no problems should arise with reflecting the services of recruitment agencies and other expenses associated with personnel selection when calculating income tax. But life is not all rosy.

We pay for the services of a recruitment agencyif there is a HR department

As a general rule, for profit tax purposes, expenses are recognized as expenses of an organization if they are economically justified (clause 1 of Article 252 of the Tax Code of the Russian Federation). Companies that have their own personnel department may face difficulties in justifying the costs of third-party recruitment services.
In Letter dated 06.12.2006 N 03-03-04/2/257, specialists of the Ministry of Finance of Russia came to the conclusion that when calculating income tax, it is possible to take into account the services of third-party organizations for personnel selection only if they do not duplicate the responsibilities established for own relevant department of the organization. True, it addressed the issue of the legality of accounting for expenses for the services of law firms. But this approach can also be applied to our situation.
Let us note that a little later (in 2008) financiers again returned to the issue of the economic justification of legal services, provided that the company has its own lawyers. But this time they avoided a clear answer, getting away with only a reference to the legal position of the Constitutional Court of the Russian Federation on the economic justification of expenses, given in the Determination of 04.06.2007 N 320-O-P. According to it, the provisions of Art. 252 of the Tax Code of the Russian Federation do not allow their arbitrary interpretation, since they require the establishment of an objective connection between the expenses incurred by the taxpayer and the focus of his activities on making a profit, and the burden of proving the unfoundedness of the taxpayer’s expenses rests with the tax authorities.

Arbitrage practice

Most courts, including the Presidium of the Supreme Arbitration Court of the Russian Federation, believe that the company has the right to take into account the costs of paying for the services of third-party organizations, despite the fact that it has its own divisions with similar functions. Thus, the Presidium of the Supreme Arbitration Court of the Russian Federation, considering a dispute about the legality of recording expenses for legal services, indicated that the inspectorate and the courts do not have legal grounds for recognizing expenses for legal services as not economically justified on the basis that in its structure there is a legal service that performs similar functions . Since the company has confirmed the fact and amount of expenses incurred, the courts have no legal basis to place on it the additional burden of proving the reasonableness of these expenses (Resolution of March 18, 2008 N 14616/07).
Similar conclusions are contained in the Resolutions of the Federal Antimonopoly Service of the Moscow District dated April 3, 2012 N A40-23728/08-108-75, the North Caucasus District dated September 28, 2012 N A32-36378/2011, and the Ural District dated December 23, 2011 N A07-4203/11 , Central District dated June 26, 2009 N A35-991/08-C21, Volga District dated April 30, 2009 N A12-17953/2008, Volga-Vyatka District dated May 22, 2006 N A82-8772/2005-37, etc.
As you can see, the above conclusions can also be used to defend the position on the legality of accounting for recruitment costs if the organization has its own personnel service.
It should be noted that in judicial practice, disputes about the possibility of accounting for expenses directly on personnel selection have also been considered. An example is Resolution of the Federal Antimonopoly Service of the Moscow District dated August 19, 2009 N A40-93568/08-87-466. In this case, the tax authorities wanted to recognize as unjustified the costs of service contracts with recruitment agencies due to the fact that the internal structure of the organization provided for the presence of a personnel department, the functions and responsibilities of which included the selection of candidates for vacant positions, as well as ensuring the appropriate use of employees. But the courts did not support the tax authorities.
The arbitrators agreed with the taxpayer's argumentation, which was as follows. Hiring employees with the necessary qualifications is an integral condition for carrying out activities aimed at generating income, and the use of recruitment services from third-party organizations was a necessary measure due to the large volume of recruitment work. Therefore, such expenses cannot be considered economically unjustified.
But in arbitration practice there are cases in which the arbitrators supported the tax authorities. For example, making a decision in favor of the tax authorities, the FAS of the Volga District in its Resolution dated 04.10.2012 N A65-21503/2011 indicated the following. Expenses can be considered as economically justified if the functions performed under a civil contract do not duplicate the duties of a regular department or the duties of counterparties with whom contracts were previously concluded. In this case, the company, although it had its own division performing the same work, also concluded a similar agreement.

How to avoid disputes

In our opinion, a company can protect itself in advance from claims from tax authorities. Let us note that we can talk about duplicating the functions of HR department employees with the services of a recruitment agency only if the job description of such employees specifies the responsibility for recruiting personnel. If such an obligation is provided, but in reality HR officers do not deal with this, it is better to exclude the function of searching for new employees from their job descriptions. In this case, the risk of a dispute with tax authorities is significantly reduced.
It may turn out that it is not possible to reduce the functionality of HR officers. Then you need to stock up on arguments about the advisability of concluding an agreement for the provision of personnel search services. Here are some arguments:
- vacant positions are filled as quickly as possible, since the agency has its own database of applicants;
- the agency provides an integrated approach to personnel selection - from a preliminary audit of the vacancy and selection of the most suitable candidates to recommendations in the selection of the final candidate and assessment of new employees;
- the agency checks the consistency of the experience in the resume and the entries in the work record of applicants, which guarantees the conclusion of an employment contract with professionals.
With this development of events, it will be difficult for tax authorities to prove that the company’s recruitment services are not economically justified.

Recruitment agency services paid for, no results

By concluding an agreement with a recruitment agency for the provision of personnel selection services, the company cannot guarantee the success of the transaction. It may well turn out that upon expiration of the contract the contractor will not complete the tasks assigned to him, that is, the company will not staff the staff with the missing employees. Is it possible to take into account recruitment costs for income tax purposes in such a situation?
When resolving this issue, the company will again have to face the problem of justifying the costs incurred. Let's tell you in more detail.
The position of the Russian Ministry of Finance on this issue is set out in Letters dated 09/04/2008 N 03-03-06/1/504 and dated 06/01/2006 N 03-03-04/1/497.
Financiers believe that if the services of specialized personnel selection organizations did not lead to a positive result (that is, the organization did not recruit new employees), the costs of such services cannot be taken into account when calculating income tax. This conclusion also applies to payment for the services of a recruitment agency for the selection of candidates who are not suitable for the organization. Argument: the requirements of Art. 252 of the Tax Code of the Russian Federation on the economic justification of expenses.
Tax authorities adhere to a similar position (Letter of the Federal Tax Service of Russia for Moscow dated March 22, 2005 N 20-12/19398).

Arbitrage practice

As an analysis of arbitration practice shows, the courts are on the side of taxpayers in this matter. The following dispute was considered in the Resolution of the Federal Antimonopoly Service of the Moscow District dated March 13, 2009 N A40-32344/08-75-75.
The company entered into an agreement with a recruitment agency to provide recruitment services. According to its terms, it was considered fully completed only after the customer made a decision to hire one or more candidates from among those presented by the contractor. But in the end it turned out that at the end of the contract, none of the presented candidates were hired. The organization took into account the cost of services under such an agreement when calculating income tax as an expense. The tax authorities decided that she did not have the right to do this, since the agreement in this case cannot be considered fully executed.
The courts, deciding in favor of the organization, indicated the following. The reasonableness of the costs of paying for personnel selection services is determined not by the final result of such services, for example, hiring workers, but by the very fact of their provision, that is, the actual activity of the contractor aimed at searching, selecting and providing applicants for the position. The recruitment agency performed the services - the applicant was provided with external candidates who were interviewed by specialists from the customer organization. Therefore, the company had every right to account for such expenses.
And in the Resolution of the same FAS Moscow District dated November 9, 2007 N A40-38224/06-140-265, the judges noted that the Tax Code does not contain additional conditions according to which employees proposed by a specialized organization had to be hired by the organization. A similar conclusion was made by the arbitrators in the Resolution of the Federal Antimonopoly Service of the Volga Region dated May 22, 2007 N A55-29883/05-53.
We were able to find only one case in favor of the tax authorities, and in this case such a decision was made due to the fact that from the primary documents it followed that during the period of expenses for personnel selection, the vacant position was already filled (Resolution of the Federal Antimonopoly Service of the North-Western District dated 04/13/2007 N A56-4088/2006).

How to avoid disputes

In this case, in order not to fall under the radar of the tax authorities, the organization at the stage of concluding an agreement with a recruitment agency needs to thoroughly work out and fix the terms of the agreement.
Firstly, there is no need to stipulate in the contract that it is considered fulfilled only if an employment contract is concluded with a candidate for a vacant position. Otherwise, claims from inspectors will hardly be avoided.
Secondly, we recommend that the payment under such an agreement be divided into two parts. The first will be charged directly for personnel selection, and the second will be transferred to the contractor only after the employment contract with the candidate provided by the recruitment agency is actually concluded.
Thirdly, you can enter into an agreement with a recruitment agency not for the selection of personnel, but for the provision of consulting services. In this case, expenses will be taken into account according to paragraphs. 15 clause 1 art. 264 Tax Code of the Russian Federation. And in this case, the fact of concluding an employment contract with the applicants provided by the agency will not have any significance. Let us note that the legality of this option has been confirmed by arbitration practice (Resolution of the Federal Antimonopoly Service of the Moscow District dated 09/06/2005, 08/30/2005 N KA-A40/7275-05-1,2).

The employee has not passed the probationary period

Let's simulate the situation: suppose the company has entered into an employment contract with a candidate who was proposed by a recruitment agency. The agency's services were fully paid for and included as expenses, and the organization deducted VAT attributable to their cost.
However, the new employee did not complete the probationary period and was fired. Typically, in such cases, recruitment agencies return their remuneration (by the way, you need to pay special attention to this point when concluding an agreement for the provision of personnel selection services).
The amount of the returned remuneration must be included in non-operating expenses on the basis of Art. 250 Tax Code of the Russian Federation. What to do with VAT? Is it necessary to restore previously accepted tax deductions?
Unfortunately, we were unable to find clarifications from regulatory authorities or judicial practice on this issue.
In our opinion, when a recruitment agency returns payment due to the fact that the hired applicant has not passed the probationary period, the customer organization must restore the VAT previously accepted for deduction. This is explained as follows.
If the contract with the recruitment agency provides for a condition for the return of remuneration, until it is clear whether the applicant has passed the probationary period or not, the contract will not be considered completed and the service rendered. Consequently, the amounts received by the contractor should be regarded as an advance towards the upcoming provision of services.
As a general rule, VAT can be deducted only if the purchased services are used in transactions subject to VAT (clause 2 of Article 171 of the Tax Code of the Russian Federation). Cases when VAT amounts previously legally accepted for deduction must be restored are listed in clause 3 of Art. 170 Tax Code of the Russian Federation. According to paragraphs. 3 of this norm, VAT restoration is carried out by the buyer in the tax period in which there was a change in the conditions or termination of the relevant contract and the return of the corresponding amounts of payment, partial payment received by the taxpayer on account of the upcoming provision of services. Since the advance payment is returned, the customer must restore the VAT previously accepted for deduction on it.

Travel expenses for job applicantsto the interview location

In some cases, an employer, intending to hire an employee living in another region, pays the cost of travel for the job seeker to the place of work for an interview and includes such expenses as part of the cost of recruiting employees.
As practice shows, tax authorities do not recognize such expenses and the courts agree with them. As an example, we can cite the Resolution of the Moscow District Court of October 27, 2014 N F05-12749/14 in case N A40-119798/13-107-447.
Refusing to satisfy the stated claims in this episode, the courts of the first and appellate instances came to the conclusion that the provisions of paragraphs. 8 clause 1 art. 264 of the Tax Code of the Russian Federation does not provide the right to include in the costs of recruiting employees the cost of travel of an employee applying for a job to the place of work for an interview. The cassation court agreed with this conclusion of the courts.
Thus, the courts, having examined and assessed the evidence presented in the case materials, came to the conclusion that the costs of compensating the expenses of an individual who is not an employee of the organization for his travel from his place of residence (in this case, Penza) to the place of the interview (Moscow) before the date of his hiring are economically unjustified and not provided for by tax and labor legislation, and therefore are regarded by the courts as payment for the employee’s travel solely for signing an employment contract, which, taking into account his actual work at the place of residence (Moscow) . Penza) is unfounded. A different assessment of the circumstances established by the courts and a different interpretation of the rules of law do not indicate a miscarriage of justice. At the same time, the cassation drew attention to the fact that evidence of sending a job offer to the future employee, calling him for an interview on the day of arrival in Moscow and conducting an interview on the specified day was not presented to the courts. Based on this, it can be assumed that if the company had submitted the necessary documents, the court decision would have been different.

Payment for consulting services for assessmentpersonal and business qualities of employees

Based on paragraphs. 8 and 15 paragraph 1 art. 264 of the Tax Code of the Russian Federation, the taxpayer has the right to include consulting and other similar services among the costs of recruiting employees. At the same time, the list of costs for consulting services is open and limited only by the general criteria for assessing such costs established in Art. 252 of the Tax Code of the Russian Federation.
Let us turn to the Resolution of the Federal Antimonopoly Service of the Moscow District dated 06/09/2011 N KA-A40/5329-11-2 in case No. A40-81531/10-107-408. In this case, the taxpayer challenged the decision of the Federal Tax Service, in which the tax authorities did not recognize the company’s costs for paying for consulting services for assessing the personal and business qualities of senior management employees for compliance with the requirements for senior and middle managers, with the subsequent development of recommendations.
The cassation court agreed with the taxpayer’s correctness, since the case materials presented detailed individual reports in relation to each employee being inspected, as well as a staffing table confirming that the audit was carried out specifically in relation to the taxpayer’s senior employees.
Recognizing the inspection's decision as illegal, the courts came to the correct conclusion that the inspection had failed to prove the unreality of the consulting services provided, the unreliability of the primary documents confirming them (acts, reports, contracts, invoices), and took into account the testimony of the general director of the company - the taxpayer's counterparty, who did not deny the conclusion with the taxpayer of the agreement and the provision of consulting services to him.

Attention to documents

As you know, economic justification for accounting expenses for profit tax purposes is not enough. Expenses must be documented.
According to the Federal Tax Service of Russia for the city of Moscow, expressed in Letter No. 16-15/064754@ dated July 19, 2012, a document confirming the fulfillment of obligations under an agreement with a recruitment agency is an act of provision of services for the provision of personnel, applications indicating the number and qualifications requested workers.
In our opinion, in order to protect itself from possible conflict situations with tax authorities, it is better for a company to save the resumes and profiles of applicants proposed by a recruitment agency, as well as document the reasons for refusing to employ them.

Please explain with what postings to register personal income tax withholding: we have the following postings: Dt 60.02 Kt 51 - an air ticket was purchased by bank transfer Dt 91.02 (or 76) Kt 60.01 - the act of rendering services was capitalized. What postings are used to issue personal income tax. Please also explain another situation. For example: an enterprise paid travel for a foreign applicant. Subsequently (after some time, for example 3-6 months), upon receipt of a work visa, the applicant was hired and reimbursed the cost of paid travel. (either deposited into the cash register or withheld from the salary). Does the company have any tax obligations in such a situation? And during an audit, can the tax inspectorate make a claim that the fare was not reimbursed immediately, but after some time has elapsed? What documents need to be completed to avoid claims from the tax authority.

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

1. Article:The Russian Ministry of Finance is against accounting for the costs of searching for personnel if the required specialist is not found

If a company compensates a candidate for the cost of travel to the interview location, it is obliged to withhold personal income tax from this amount.

The Ministry of Finance of Russia is convinced that if a potential employer compensates or pays for the cost of travel and accommodation of an applicant, the latter will generate income subject to personal income tax (letters dated 10.28.10 No. 03-03-06/1/669, dated 08.19.10 No. 03-03- 06/1/562 and dated 06.08.10 No. 03-04-06/6-170). After all, although the candidate came for an interview at the head office on the initiative of the organization, he also pursued his own goals, since he sought to get a job* (letter of the Ministry of Finance of Russia dated 06.08.10 No. 03-04-06/6-170):

It is advisable to make copies of the passports of all candidates for whom the organization pays for travel and accommodation at the interview location

“The reference to the fact that an invitation to an interview is carried out solely in the interests of the organization is unfounded, since such an interview is also conducted in the interests of an individual applying for a job in this organization.”

Such income is considered received by the applicant in kind (subclause 1, clause 2, article 211 of the Tax Code of the Russian Federation). Nevertheless, the company is obliged to determine the amount of this income, calculate personal income tax from it, withhold tax and transfer it to the budget* (clause , and article 226 of the Tax Code of the Russian Federation). She will not have any difficulties with this if we are talking about reimbursing the candidate for expenses incurred by him. The organization will withhold the corresponding amount of tax when paying him monetary compensation.

If the company does not reimburse expenses, but independently purchases tickets for the applicant or pays for his hotel accommodation, it will be able to withhold personal income tax only from the candidate whom he ultimately hires. And then only when paying him a salary and, perhaps, not the entire amount of the calculated tax at once.

Applicants who fail an interview will most likely not be able to withhold tax. In this case, it will be necessary to inform the inspectorate and the candidate himself that personal income tax was not withheld, and indicate the amount of tax* (clause 5 of Article 226 of the Tax Code of the Russian Federation). This must be done no later than January 31 of the year following the year in which the organization paid his travel and accommodation expenses. To issue such a message (it is drawn up in form 2-NDFL), you will need the applicant’s full name, date of birth, passport details, residence address and Taxpayer Identification Number (if available). Therefore, it is advisable to make copies of the passports of all candidates for whom the company pays or reimburses the cost of travel and accommodation.

Elena Vaitman,

expert of the Russian Tax Courier magazine

2. Article:The applicant came for an interview from another city

The head of the personnel department intends to invite a job applicant from another locality for an interview. It is important for an accountant to understand who is financing this trip, how to prepare the documents, what taxes and fees the company and the applicant will pay. The answers to these and other questions are in the article.

Labor legislation does not oblige the employer to pay for travel and accommodation for an applicant who comes for an interview from another city. But it does not contain a ban on spending one’s own funds for these purposes in order to attract and place a unique specialist.

The procedure for issuing an invitation to an interview for a potential employee is also not regulated by any regulations. This makes it possible to draw up documents in such a way as to minimize the tax burden.

TAXES AND FEES

Specialists of the Ministry of Finance of Russia in letters dated June 30, 2014 No. 030406/31359, dated October 28, 2010 No. 03-03-06/1/669 and dated August 19, 2010 No. 03-03-06/1/562 indicate that the company’s travel expenses and accommodation of the applicant who arrived at the interview site:

• - can be taken into account when calculating the tax base for income tax , if they are economically justified and documented (clause 1 of Article 252 of the Tax Code of the Russian Federation);
• - are income of an individual - a job seeker, received in kind, taxable Personal income tax (clause 1 of article 210 and subclause 1 of clause 2 of article 211 of the Tax Code of the Russian Federation);
• - not taxed insurance premiums , since they are not a payment within the framework of an employment relationship, therefore they do not belong to the object of taxation in accordance with Part 1 of Article 7 of the Federal Law of July 24, 2009 No. 212-FZ and paragraph 1 of Article 20.1 of the Federal Law of July 24, 2009 No. 125-FZ.

Based on the application and supporting documents attached to it, R.K. Faberge was given the agreed amount of compensation for expenses, minus the personal income tax withheld from it, 14,094 rubles. (RUB 16,200 – RUB 16,200 ? 13%).

Since the applicant is not yet an employee of Resurs LLC, it is impossible to use account 71 “Settlements with accountable persons”, settlements with him are carried out using account 76 “Settlements with various debtors and creditors”, for account analytics it is better to create a subaccount, for example subaccount 76 -6 “Settlements with applicants.”

The following entries were made in accounting:

DEBIT 26 CREDIT 76-6 subaccount “Settlements with applicants”

16,200 rub. (RUB 14,000 + RUB 1,100 + RUB 1,000 + RUB 100) - compensation for R.K.’s expenses has been accrued. Faberge related to arriving for an interview;

DEBIT 76-6 subaccount “Settlements with applicants” CREDIT 68 “Settlements for personal income tax”

2106 rub. (RUB 16,200 ? 13%) - calculated and deducted from the personal income tax compensation amount;

DEBIT 68 “Calculations for personal income tax” CREDIT 51

2106 rub. - the withheld personal income tax is transferred to the budget;*

DEBIT 76-6 subaccount “Settlements with applicants” CREDIT 50

RUB 14,094 (RUB 16,200 – RUB 2,106) - the amount of compensation for R.K.’s expenses was issued from the cash register. Faberge related to arriving for an interview, minus withheld personal income tax.

IF THE COMPANY HAS PAID FOR THE APPLICANT'S TRAVEL AND ACCOMMODATION

If the company independently purchases tickets for the applicant and pays for his hotel accommodation, the composition of the accounting entries will be slightly different than in our example.

Wiring DEBIT 26 CREDIT 76 The subaccount “Settlements with one-time contractors”, the accountant will reflect the amounts of invoices issued by the transport organization and the hotel.

Wiring DEBIT 76“Settlements with one-time contractors” CREDIT 51 will record the fact of payment of these bills from the company's current account.

Obviously, in this situation, the company has no way to withhold personal income tax from the applicant’s income received in kind.

In this case, it will be necessary to inform the tax office and the recipient of the income that personal income tax was not withheld and indicate the amount of tax (clause 5 of Article 226 of the Tax Code of the Russian Federation). This must be done no later than January 31, 2015, by filling out a message in form 2-NDFL with sign 2.*

O.V. Dunaeva,

expert of the magazine "Salary"