The Supreme Court, in its Ruling No. 302-ES21-2582 of 19.05.2021 in case No. A33-4184/2020, ruled not in favour of the tax authorities, which were denied inclusion in the taxable base of social payments provided for by the collective agreement.
The essence of the case:
During the on-site inspection, the tax inspectorate concluded that the company had unlawfully underestimated the basis for calculating insurance premiums for the amount provided for in the collective agreement:
The tax authorities noted that these payments were made within the framework of labour relations and are stimulating, since they directly depend on the length of service of the employee, and are also carried out at the expense of the employer’s own funds not in accordance with the legislation of the Russian Federation, but on the basis of local regulations. As a result of these operations, additional fees, penalties and a fine were accrued.
The Federal Tax Service is of the opinion that food is subject to contributions (if it is provided only according to a local regulatory act), as well as vouchers for employees (Letter of the Federal Tax Service of Russia No. BS-4-11/9100 dated 02.06.2020). The Ministry of Finance expresses a similar opinion about vouchers and subsidies for food (Letter of the Ministry of Finance of the Russian Federation No. 03-15-06/18344 dated 20.03.2019, Letter of the Ministry of Finance of the Russian Federation No. 03-04-06/1107 dated 15.01.2019).
On the payment of dismissal due to retirement, the position of the Ministry of Finance is as follows: you only need to tax the amount that exceeds three times the average monthly earnings (Letter of the Ministry of Finance of the Russian Federation No. 03-15-06/109203 of 14.12.2020).
The Supreme Court, in turn, proceeded from the fact that the disputed payments provided for by the collective agreement are not subject to insurance premiums, since they are not labour remuneration (remuneration for labour), do not relate to incentive payments, do not depend on the employee’s qualifications, complexity, quality, quantity and conditions for the employee to perform his labour duties.
In addition, the court noted that these conclusions correspond to the legal position expressed in the resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 17744/12 of 14.05.2013, No. 10905/13 of 03.12.2013, rulings of the Supreme Court of the Russian Federation No. 303-KG17-6952 of 04.09.2017, No. 309-KG18-5970 of 04.06.2018.
As practice shows, the issues of taxation of insurance premiums are quite controversial, but our tax consultants can analyse them and provide you with recommendations on how to act in a particular situation. You can always send your request to info@sterngoff.com.
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