On the procedure and amount of payment of compensation for renting (subletting) residential premises to employees of the Department of Internal Affairs of the Russian Federation. Renting housing for an employee: personal income tax and insurance premiums

15.10.2019

Today, the real estate industry is developing quite actively, offering consumers various services. However, renting living space is fundamental. Due to various life circumstances, many of us are faced with the need to sublet real estate, but few people know that Russian legislation provides for such an opportunity as compensation for rental housing. In some cases, it will not be difficult to obtain it, but sometimes it will be necessary to receive such payments.

Who is entitled to compensation for subletting?

Reimbursement of real estate rental expenses is a benefit provided by the state or enterprise to the following categories of citizens:

Socially vulnerable persons, this includes orphans, children without parental care, families belonging to the poor.
Military personnel who do not have residential premises owned at the place of service.
An employee of an organization who has a permanent traveling nature of work or frequent business trips, if such a clause is specified in the employment contract.

In the latter case, housing rental can occur centrally, that is, directly from the company’s accounting department to the account of the property owner, in the form of daily allowances for the employee (the amount of which includes payment for accommodation), or in the format of returning the money spent after the trip (if receipts are available). The algorithm is similar for all budget employees, only here payments are made from the organization’s budget (state transfers).

Compensation for rent to an employee

When hiring, an employee and a manager, as a rule, discuss the possibility of business trips, frequent travel, or even moving to a permanent place of residence in another city, where, for example, a branch of the organization is located. If the employee is satisfied with the terms of employment, then the contract must necessarily reflect all the nuances, including those related to living expenses - the payment procedure, the amount of the salary supplement, the level of comfort of housing, whether the employee is expected to live with his family and etc.

There are two main payment methods:

The real estate lease agreement is concluded directly by the company itself.
The living space is rented by the employee, and the manager, in turn, only reimburses the expenses.

Important: The employer can pay rent directly to the landlord or transfer cash to the employee's account.

It should be noted that the funds transferred to the employee’s account rent, will be classified as income received in kind and, accordingly, will be subject to tax (personal income tax) and insurance contributions. In addition, according to the law, this amount should not exceed 20% of the employee’s total income.

If the tenant is an employee, the following information must be provided as evidence for subsequent compensation for expenses on sub-rental housing:

Lease contract. The document must necessarily reflect the personal data of the landlord, tenant, address of the property, cost, and the period for which the housing is expected to be rented out.

Important: If the rental period exceeds 1 year, in this case, the agreement should be registered in Rossreestr.

Payment orders for payment of rent of residential premises, receipts from the landlord.

Cash compensation for sub-hiring during a business trip

If an employee goes on a long business trip to another city, in addition to payments for basic expenses, an article should be included to reimburse expenses for rent and utilities.

The amount for accommodation, which is subject to subsequent compensation, is agreed upon immediately before the business trip. If the limit is exceeded, the employee pays the difference at his own expense.

Compensation payments when working on the road

Traveling work is a type of work activity that takes place outside the organization’s office.

Constant travel is not a business trip, however, business expenses - food, accommodation, travel, etc. are compulsorily compensated. The only caveat is that you must provide documents confirming expenses (checks, invoices, tickets), and this income is not taxed.

Where to go to get compensation

In order to answer this question, it is necessary to divide the categories of applicants for reimbursement of monetary costs.

As for employees of enterprises, it must be borne in mind that there is no law requiring that the employee be provided compensation for housing. The only case, this is when an employer invites foreign citizens. Only then is he obliged to provide them with living space. In all other cases, the management of the organization makes a decision on reimbursement of expenses on a voluntary basis. The amount of compensation and the procedure for receiving it are indicated in the internal documentation of the enterprise and are negotiated with the employee individually.

As for military personnel (employees of the Ministry of Internal Affairs), here the issue of compensation payments should be taken much more seriously, since funding comes from the federal budget. Accordingly, the requirements for real estate are somewhat different and payment may be denied if certain requirements are not met.

In order to exercise your right, you must write a report addressed to the head of the unit where the employee arrived on assignment and attach documents for housing rental compensation:

Identification documents of the military man and all members of his family.
Certificate of family composition.
Lease contract.
Certificate of enrollment of an employee in the civil service of a military unit.

The amount of compensation for subletting residential premises to military personnel depends on the following factors:

Occupied living space in accordance with social norms. For example:

ü 24 sq.m. is allocated to an employee if he lives alone.

ü 36 sq.m if, in addition to him, one family member will live.

ü 43 sq.m. is suitable for three people, including a military personnel.

ü If the number of family members exceeds 4 people, the calculation is based on 12 sq.m per person.

The average cost of real estate in a particular region.

Payment of compensation for subletting to citizens who are recognized as socially vulnerable is carried out when a person applies to the social protection authorities to be recognized as in need of improved housing conditions.

In the event that local governments cannot provide residential real estate to a citizen or provide it to them on the basis of a social tenancy agreement, payments are assigned.

The amount of compensation is not fixed and depends on the annual level of indexation of compensation payments in the region, as well as the time of year. For example, in the summer there is no heating, and accordingly, the payment amount will be less.

In addition, it should be noted that the presence of debt on apartment and utility bills is grounds for termination of rent compensation.

In what cases are military personnel compensated for the costs of rented housing? Military people who do not know their rights usually act like this: they find an apartment owner who wants to earn extra money using their real estate through an advertisement, and verbally negotiate the terms with him: fees for utilities, fees for the use of property, rules of residence.

So, for example, out of 20 thousand of his monthly salary (approximately the same as this moment the minimum salary of an ordinary contract soldier) in the first month (and in subsequent months, if the provision of official housing is delayed), the ordinary soldier must give the owner, at best, 3 - 10, and in a large city, 15 thousand rubles.

In this situation, this money is not returned to the soldier, although it could have been if he had drawn up a written agreement with the owner of the apartment.

According to the law, a person who is on military service under a contract far from his permanent place of residence must be temporarily, but free of charge, provided service apartment.

If there is no official housing available and the contract employee is forced to rent an apartment at your own expense, his rights are violated. Therefore, he must be paid compensation for renting or subletting living space.

Additional payment for premises hired by a military personnel is carried out on the basis of a Government decree made in 2004, December 31. Subsequently, this resolution was supplemented by order number 235 of the Ministry of Defense of the Russian Federation, and in 2015, on September 18, changes were made to it, providing for differentiation of compensation depending on position.

The documents also regulated cash payments for sublease housing if a serviceman could not be provided with a service apartment.

A military family renting housing from relatives also has the right to compensation if, at the time of renting, an agreement was drawn up and Required documents and an account is opened.

Find out in our article on how to verify.

If the period specified in the contract does not exceed 1 year, there is no need for state registration of the document. Duration of one year - registration is required.

So that in the future there were no disputes, it is recommended that before moving in, you draw up a document containing information about the apartment: its shortcomings at the time of delivery and acceptance. Also in the act it is given indicating its condition, etc.

Required documents

What documents must be submitted to receive compensation:

When a child appears in the family, the military man must again submit a report addressed to the unit commander, attaching a changed certificate of family composition and a copy of the baby’s birth certificate. The amount of compensation depends on the number of family members.

Size calculation

How is compensation for rental housing for military personnel calculated? Additional payment in the amount of actual expenses for renting or subletting an apartment, not exceeding the size determined taking into account the total area of the premises and approved by the Ministry of Defense of the Russian Federation every year the maximum rental fee is 1 square meter legal for:

officers;
warrant officers;
midshipmen;

In the capital and St. Petersburg, compensation for rented housing is within 15 thousand rubles; V big cities and urban settlements - within 3,600 rubles; in the village - within 2,700 rubles for military personnel with ranks:

private;
sailor;
sergeant;
foreman;
discharged in these ranks after 20 years of service.

How is the calculation made? Compensation is calculated based on the amount specified in the contract, taking into account the maximum value of compensation in a particular locality and the composition of the military family.

Funds are received every month personal account, opened in the name of a serviceman.

How to increase the amount of payment for rental housing for military personnel? Surcharge increases by half when 3 members of his family live with the military man.

Problems in receiving

It is impossible to receive additional payment for renting residential premises if the agreement with the landlord turns out to be declared invalid(the lessor is without a power of attorney and not the owner, the document is drawn up incorrectly, etc.).

Right to rent housing

Can and does a soldier have the right rent a flat for rent? If the military man is the owner, you can rent it out. But if, unlike social, the law prohibits subhiring.

Renting an apartment with a military mortgage? A military mortgage makes it possible to purchase an apartment in any locality of the Russian Federation, not necessarily in the region of service.

In this case, the housing is empty, and signing a lease agreement would bring income to the serviceman. But a mortgage presupposes finding real estate pledged to the bank, and a military mortgage, in addition, finding real estate pledged to the state.

Before applying for a loan, ask the bank employees. If yes, no problem. If not, ask if it is possible to draw up an agreement on your terms. No - contact another bank.

Because If you plan to rent out your home, be sure to insure it. The insurance must indicate cases related to the use of the apartment by the tenant.

When the insurance does not provide for insured events related to the use of living space under a rental agreement, then even in court, most likely, if it happens insurance case, you will not be able to receive payment.

In addition to the bank's permission, state permission is required to conclude an agreement for the rental of an apartment purchased with a military mortgage.

Unfortunately, filling out the necessary paperwork for this has not yet become common among officials.

It may become problematic or prolonged, but in order to make a profit from real estate, which does not require costs, you can be patient, because the funds received from hiring are another legal and stable source of income for a military family.

Compensation for renting an apartment is one of the measures state support for military personnel. Especially in major cities, where renting housing is expensive, it significantly supplements the budget of a military family. Additional payment is made before the provision of office space.

We thank the accountant Svetlana Kostyrenko(Komi Republic, Usinsk) for the proposed topic of the article.

For years now, heads of organizations have been complaining about the shortage of qualified employees. So we have to “discharge” workers from other regions and from abroad. And sometimes they also provide them with housing, for which employers rent apartments or rooms. Let's talk about how to take into account rental housing for an employee or reimbursement of expenses for renting housing for tax purposes.

The organization itself pays rent directly to the owner of the property.

There are two possible approaches here.

APPROACH 1 (safe, but not the most profitable)

Regulatory authorities believe that rental costs are remuneration in kind, which forms the employee’s income. Therefore, the obligation to provide the employee with housing must be specified in the employment contract with him.

WE WARN THE MANAGER

If the rental agreement with the property owner will be concluded for a year or more, then it will need to be registered with the Ros-re-estr authority clause 2 art. 651 Civil Code of the Russian Federation.

Moreover, in accordance with the Labor Code of the Russian Federation, the part of remuneration paid in kind cannot exceed 20% of the employee’s salary Art. 131 Labor Code of the Russian Federation. And according to the Ministry of Finance, of all the expenses for renting an apartment in "profitable" expenses the company can recognize as labor costs only an amount not exceeding the specified limit Art. 255 Tax Code of the Russian Federation; Letters of the Ministry of Finance dated 03/19/2013 No. 03-03-06/1/8392, dated 05/02/2012 No. 03-03-06/1/216, dated 10/28/2010 No. 03-03-06/1/671, dated 17.01. 2011 No. 03-04-06/6-1.

The texts of the Letters from the Ministry of Finance and the Federal Tax Service mentioned in the article can be found: section “Financial and personnel consultations” of the ConsultantPlus system

Although the court once recognized that such expenses can be taken into account for profit tax purposes in full. The Federal Antimonopoly Service of the Central District indicated that the expenses were aimed at ensuring the production process and without them, employees invited from afar would not be able to fulfill their job duties. He also noted that the norms of the Labor Code cannot regulate tax relations and the argument about a 20% limitation is unlawful. After all, the list of expenses in favor of the employee that can be taken into account when calculating income tax is open. Resolution of the Federal Antimonopoly Service of September 29, 2010 No. A23-5464/2009A-14-233.

The employee's income in the form of rent paid for him must be taxed NDF L subp. 1 item 2 art. 211 Tax Code of the Russian Federation; clause 2 of the Letter of the Ministry of Finance dated 09/07/2012 No. 03-04-06/8-272; Letter of the Ministry of Finance dated July 5, 2013 No. 03-04-06/25983. Therefore, taxes will have to be withheld from the employee’s cash income. pp. 1, 2 tbsp. 226 Tax Code of the Russian Federation.

Do not forget that by paying rent directly to the owner of the property, who is an individual non-entrepreneur, your company in any case becomes a tax agent in relation to the income received by the landlord, and therefore must withhold personal income tax from it clause 5 art. 3, pp. 1, 4 tbsp. 226, sub. 1 clause 1, clause 2 art. 227 Tax Code of the Russian Federation; Letter of the Ministry of Finance dated April 29, 2011 No. 03-04-05/3-314.

We wrote more about renting housing from an individual:

Also, the amount of rent will need to be included in the base for insurance premiums. Since it forms the “natural” income of the employee, received by him within the framework of labor relations Part 1 Art. 7 of Law No. 212-FZ of July 24, 2009 (hereinafter referred to as Law No. 212-FZ).

Concerning accounting, then to reflect transactions related to rental housing, you will need to make the following entries.

Contents of operation	Dt	CT
Rent included in expenses
Personal income tax is withheld from income in the form of rent from the employee’s salary	70 “Settlements with personnel for wages”
Personal income tax withheld from the landlord's income - individual in the form of rent	76 “Settlements with various debtors and creditors”	68, subaccount “NDFL”
Rent transferred	76 “Settlements with various debtors and creditors”	51 “Current accounts”
Insurance premiums are calculated on the employee’s income in the form of rent	20 “Main production” (26 “General business expenses”, 44 “Sales expenses”)

But of course, approach 1 is very ambiguous. And if you are ready to defend your opinion before regulatory authorities, study approach 2.

Its essence lies in the fact that the cost of renting an apartment is not the payment of an employee. But despite this, such costs are reasonable and economically justified. Without them, the employer will not be able to properly organize the production process.

Then for income tax purposes expenses in the form of rent can be taken into account in full as part of other expenses in subp. 10, 49 p. 1 art. 264 Tax Code of the Russian Federation; Resolution of the Federal Antimonopoly Service of the Central Election Commission dated February 15, 2012 No. A35-1939/2010.

The employee has no income, and Personal income tax There is no need to hold him back. This point of view, by the way, is also supported by the courts. clause 2 of the Resolution of the Federal Antimonopoly Service ZSO dated 02.09.2011 No. A70-10656/2010; Resolution of the Federal Antimonopoly Service of the Moscow Region dated March 21, 2011 No. KA-A40/1449-11. At the same time, the court once noted that such rental payments are made in the interests of the organization and are not related to the wage system. Resolution of the Federal Antimonopoly Service UO dated 06/08/2012 No. F09-3304/12.

Insurance premiums There is no need to accrue everything for the same reason: providing an employee with housing is not remuneration for work.

CONCLUSION

If you don’t like arguing with tax authorities and are not ready to use approach 2, then it will be easier for you to increase the employee’s salary by the amount of the lease payment. And let him pay for his rented housing. Of course, you will have to withhold personal income tax from this amount and pay insurance premiums, but there will be no problems recognizing it as “profitable” expenses.

The organization reimburses the employee for rental expenses

In order to prove the reasonableness of reimbursement costs, you must have:

a copy of the lease agreement between the employee and the owner of the property;
copies of payment documents for housing rent (for example, receipts from the landlord for receipt of money).

In addition, the obligation to reimburse the employee for rental expenses must be specified in the employment contract with him.

In such a situation, there are also two approaches to how this should be reflected in tax accounting.

APPROACH 1 (safe, but unprofitable)

It lies in the fact that such compensation is not compensation that the employer is obliged to provide to the employee under the Labor Code. This means that all this is “charity” of the organization in favor of the employee.

WE WARN THE MANAGER

Even the organization will reimburse the employee for rental housing expenses in accordance with the employment contract, Tax authorities can exclude these amounts from “profitable” expenses. Therefore, it is safer to rent premises yourself to provide housing for workers.

Then the rental expenses reimbursed to the employee cannot be taken into account in reducing the basis for income tax clause 29 art. 270 Tax Code of the Russian Federation; clause 1 of the Letter of the Ministry of Finance dated March 17, 2009 No. 03-03-06/1/155; Clause 2 of Federal Tax Service Letter No. BE-22-3/6@ dated January 12, 2009.

The amount of compensation must be subject to personal income tax, since such compensation is not included among the payments not subject to this tax Letter of the Ministry of Finance dated May 15, 2013 No. 03-03-06/1/16789.

Insurance premiums the amount of compensation will have to be calculated, since it is paid within the framework of the employment relationship Part 1 Art. 7 of Law No. 212-FZ; clause 1 art. 20.1 of the Law of July 24, 1998 No. 125-FZ; Letter of the FSS dated November 17, 2011 No. 14-03-11/08-13985; clause 3 Letter of the Ministry of Health and Social Development dated 05.08.2010 No. 2519-19. Once the court came to this conclusion, supporting the FSS Resolution 16 AAS dated 02/06/2013 No. A63-13026/2012.

IN accounting There will be the following postings.

Contents of operation	Dt	CT
Rent reimbursement included in other expenses	91 “Other income and expenses”, subaccount “Other expenses”
Personal income tax is calculated from the amount of compensation	73 “Settlements with personnel for other operations”	68 “Calculations for taxes and fees”, sub-account “NDFL”
Compensation paid to employee	73 “Settlements with personnel for other operations”	51 “Current accounts”
Insurance premiums have been calculated for the amount of compensation	91, subaccount “Other expenses”	69 “Calculations for social insurance and security”
A permanent tax liability is reflected	99 "Profits and losses"	68, subaccount “Income Tax”

APPROACH 2 (risky but rewarding)

It is the opposite of the previous approach: reimbursement of rental costs is statutory compensation. Indeed, in accordance with the Labor Code of the Russian Federation, when an employee moves to another area, in agreement with the employer, the latter must provide the employee with lifting materials within the limits established by the contract. Moreover, an employment contract must be concluded before relocation of the employee to the place of work Art. 169 Labor Code of the Russian Federation.

Since reimbursement of rental housing costs is part of the allowance, it is taken into account when calculating income tax among other expenses in subp. 5 p. 1 art. 264 Tax Code of the Russian Federation.

Compensations related to the employee’s relocation to another location are not subject to NDF L clause 3 art. 217 Tax Code of the Russian Federation.

Insurance premiums there is no need to accrue, since such compensation is indicated among the non-contributory payments subp. “and” clause 2, part 1, art. 9 of Law No. 212-FZ; subp. 2 p. 1 art. 20.2 of the Law of July 24, 1998 No. 125-FZ; Articles 164, 165, 169 of the Labor Code of the Russian Federation. And one day the court agreed with this Resolution 13 AAS dated 05/07/2013 No. A21-10270/2012.

At the same time, it is important to understand: the law does not say that the employer is obliged to pay the employee, including lifting and housing. Therefore, regulatory authorities will most likely not agree that rent reimbursed to an employee for several months or even years is an allowance provided for by labor legislation. Accordingly, disputes with tax authorities when applying approach 2 are very likely.

Almost a third of surveyed job seekers (29%) have at least once received an offer from potential employers to move to another locality. This means that relocation is becoming an increasingly common practice in the labor market.

The law provides for compensation for housing costs as a measure of social support for the poor, as well as socially vulnerable and privileged categories of citizens. Citizens who have registered with the social protection department can apply for monthly reimbursement of expenses, having confirmed their right with documents. In addition, employees of enterprises and military personnel who are on a business trip or work on a permanent basis for their organization and at the same time rent residential premises can count on covering housing costs.

Social payments for housing are established by Federal legislation and local governments in the region. Payment is made in accordance with the employment contract and service instructions. In both cases, reimbursement of expenses is made in accordance with the establishing documents, verified by the social protection department or the accounting department of the enterprise (part). Payments are made after the actual costs have been established; in some cases (business travel) they may be provided in advance, with subsequent reporting.

Social reimbursement for housing costs

In 2010, the preferential discount on housing payments provided by various categories citizens. Monthly cash compensation (MCC) is individual for each beneficiary and is calculated based on receipts submitted to the social security department for the past month. If previously the benefit was averaged and determined by a single amount for all citizens, now, after submitting documents confirming the right, a monthly recalculation is made taking into account paid utilities and the cost of hiring.

The EBC depends on the annual indexation at the regional level, which is carried out for the next financial year. Indexation depends on budget allocations and may vary depending on the region. If several people living in a preferential category live in a family, then their subsidies add up, but cannot exceed half of the rent.

In many cases, rents differ significantly during the heating season and without heating. Accordingly, a recalculation is carried out and it happens that during the summer period the EDC is not provided, but during the heating period a large subsidy is received. Such fluctuations in payments do not require special treatment or writing an application.

In addition to compensation for housing costs for preferential categories, the scope of social protection is included. If a family pays housing and communal services in the amount of 22% of total income, then it has the right to social support, Art. 159 Housing Code of the Russian Federation. You can calculate the possibility of receiving a subsidy by contacting the social protection department and providing documents on the ownership of the apartment, a work record book, a certificate of income, family composition and a paid receipt for the last month.

If there is rent arrears, then you cannot count on a subsidy. Confirmation of the right to receive a subsidy is required once every six months; missing the last renewal date will result in re-applying for the entire package of documents. Receiving EDC and subsidies are not mutually exclusive; if a citizen is entitled to both benefits for housing, then he has the right to receive both. The amount accrued under both forms of social support is included in income for the calculation for the next month.

Housing for an employee: reimbursement of expenses

When concluding a contract between the employee and the management of the enterprise, a clause regarding reimbursement of housing expenses may be included. Most often, this position involves working on long business trips or in a branch of the organization. Compensation is also provided for military personnel and their families if they rent housing. The contract must contain an exact indication of the possible additional payment, the type of proposed real estate and the conditions for fulfilling obligations.

The return of funds spent depends on the form of payment for the premises, but there must be a rental agreement between the landlord and the organization. According to the agreement, funds are transferred before the start of the payroll month or through regular transfers to the employee’s bank account. The employee can pay the owner of the living space, and then receive the agreed amount into his account along with his salary.

Art. 19 of the Labor Code of the Russian Federation allows you to include in the employment contract a possible amount of compensation for housing funds, as well as change it if necessary. The size of the payment depends on many factors, for example, whether the employee’s family lives with him, the duration of the business trip or permanent work, and the comfort of living conditions. According to the Labor Code of the Russian Federation, in the event of early termination of a housing contract due to the fault of an employee, he bears financial responsibility and cannot count on reimbursement of housing expenses.

T. M. Medvedeva
expert of the magazine “Income Tax: Accounting for Income and Expenses”

Enterprises in need of highly qualified specialists often invite them to work from other regions (and sometimes even countries). Such employees inevitably have to look for housing for themselves and their families in a new place. And, as a rule, the condition of the employer paying for the rent of the apartment is one of the decisive arguments for specialists’ consent to move. It would seem that the economic justification of the expenses incurred by the organization should not raise doubts. But not from regulatory officials. They are precisely against recognizing such costs as part of tax expenses in full. The arbitrators, in turn, have a different opinion on this issue. We propose to analyze the arguments for and against this controversial situation.

Why does an employer pay an employee's rental expenses?

Article 169 of the Labor Code of the Russian Federation provides that when an individual moves, by prior agreement with the employer, to work in another area, the latter assumes the obligation to reimburse the employee for expenses related to:

– with the relocation of this employee, members of his family and with the transportation of property (except for cases where the employer provides the employee with appropriate means of transportation);

- with settling into a new place of residence.

At the same time, the procedure and amount of compensation to employees (except for those who work in state and municipal bodies and institutions) for the costs of moving to a new place of work in another locality are determined by a collective agreement or local normative act or by agreement of the parties to the employment contract, unless otherwise established by the Labor Code of the Russian Federation, other federal laws and other regulatory legal acts of the Russian Federation.

There are no questions regarding the costs of the move itself and luggage transportation. But what should be understood by “arrangement”? This term, obviously, can mean a fairly extensive list of costs, one way or another related to the arrangement of a specialist in a new place of residence, including the cost of renting housing. In fact, the cost of renting an apartment is the costs associated with creating the necessary conditions to provide housing for an employee and his family members (this is the interpretation of the concept of “arrangement” given in explanatory and encyclopedic dictionaries).

Thus, the reason for the enterprise to incur expenses associated with paying for the rental of housing for employees is a kind of bonus (gesture of goodwill) on the part of the employer who attracts out-of-town (or foreign) specialists to work. But how to correctly qualify this type of expense for profit tax purposes? Moreover, the opinions of official bodies and courts on this matter vary.

What expenses are related to labor costs?

The general principle of attributing certain types of costs to labor costs is formulated in paragraph. 1 tbsp. 255 Tax Code of the Russian Federation. Schematically, this principle looks like this.

Article 255 of the Tax Code of the Russian Federation also provides a list of such costs (we emphasize that they are open). In particular, labor costs include:

– the cost of free housing provided to taxpayer employees in accordance with the procedure established by the legislation of the Russian Federation (amount of monetary compensation for failure to provide such housing, utilities and other similar services) (clause 4);

– other types of expenses incurred in favor of the employee, provided for by labor and (or) collective agreements (clause 25).

In addition, it does not follow from this article that labor costs incurred in non-monetary form are standardized.

Position of the authorities

Ministry of Finance officials believe that the cost of rent for an employee is remuneration in kind. Consequently, this type of expense is subject to the limitation established by Art. 131 Labor Code of the Russian Federation. Let us recall that the said norm determines that the share of wages paid in non-monetary form cannot exceed 20% of the employee’s accrued monthly salary.

Based on the above-mentioned norms of tax and labor legislation taken together, financiers in Letter dated October 22, 2013 No. 03-04-06/44206 came to the following conclusion (unfortunately, disappointing for taxpayers): expenses for housing for employees of an organization can be taken into account for the purposes of taxation of profits in an amount not exceeding 20% of the monthly earnings of these workers, taking into account bonuses and allowances, subject to the conclusion of employment contracts with them. During the period when such an agreement has not been concluded and the employee is not on the staff of the organization, the above-mentioned expenses for housing cannot generally reduce the tax base for profits.

Explanations that are similar in essence are also given in the Letter of the Ministry of Finance of Russia dated September 30, 2013 No. 03-03-06/1/40369. True, here the financiers additionally expressed their thoughts regarding the recognition of the analyzed expenses as part of other expenses related to production and sales, on the basis of paragraphs. 49 clause 1 art. 264 of the Tax Code of the Russian Federation (in practice, taxpayers are often guided by this norm). Officials believe that in order to recognize the costs of renting housing for employees of an organization as part of tax expenses, they should be guided by the provisions of Art. 255 and 270 of the Tax Code of the Russian Federation, and not paragraphs. 49 clause 1 art. 264.

Why the Ministry of Finance refers the company’s costs of paying for the rent of an apartment for the accommodation of its employees specifically to non-monetary remuneration becomes clear from the explanations given in Letter No. 03‑03‑06/1/671 dated October 28, 2010. It says verbatim: when qualifying amounts accrued in favor of an employee as wages, one should proceed from the fact that the amount of remuneration is considered established if, from the terms of the employment contract, it is possible to reliably determine what amount of wages is due to the employee for the amount of work actually performed. That is, the amount of remuneration is considered established if the employee, having not received the remuneration due under the employment contract in cash or in kind, can, based on the terms of the said contract, demand that the employer pay a specific amount of money for the amount of work performed.

It turns out that it’s all about the terms of the employment contract. If it not only states the employer’s obligation to pay rent to an employee, but also determines the amount of this payment, then this, according to officials, is sufficient to qualify the specified amount as remuneration in kind. Agree, this is a dubious argument. Indeed, in addition to directly establishing the amount of wages (or other conditions for remuneration), an employment contract may provide for payments of a different kind, for example, various compensations and incentive payments. They will have an indirect relationship to wages themselves.

By the way, if financiers allow the possibility of recognizing only 20% of housing rental costs as tax expenses, then tax officials during inspections, referring to clause 4 of Art. 255 of the Tax Code of the Russian Federation, and completely deny taxpayers the right to account for these expenses. In other words, controllers believe that disputed costs should be included in wages only if the free provision of housing to an employee is subject to the requirements of current legislation (see, for example, Resolution of the Federal Antimonopoly Service of the Moscow Region dated July 5, 2013 in case No. A40-122173/12‑20‑ 621).

It would seem that with this approach there should be no disputes about the costs of renting housing for highly qualified foreign employees. But, alas, this is not so.

The employer is obliged to provide housing, but not pay for it

Explanations on the situation with foreign specialists are given in Letter of the Ministry of Finance of Russia dated March 19, 2013 No. 03-03-06/
1/8392. Their essence is this.

If a Russian organization attracts foreign citizens to work in accordance with the procedure established by the legislation of the Russian Federation, then employment contracts must be concluded with them in accordance with the requirements of the Labor Code of the Russian Federation. In this case, the inviting party (i.e. Russian organization) according to paragraph 5 of Art. 16 of Federal Law No. 115-FZ, guarantees of material, medical and housing support for a foreign citizen must be provided for the period of his stay in Russia. The specified guarantees are provided in accordance with the Procedure approved by Decree of the Government of the Russian Federation of March 24, 2003 No. 167. One of such guarantees is the employer’s obligation to provide housing for a foreign citizen in accordance with the social norm for housing area established by the government authority of the relevant constituent entity of the Russian Federation (clause “d” clause 3 of the Procedure).

Based on the foregoing, the Ministry of Finance came to the conclusion: the organization is entrusted with the obligation only to provide, but not to pay for housing to foreign citizens - employees of the organization.

What follows from this, according to officials? And the fact that the cost of renting housing for such an employee does not fall under clause 4 of Art. 255 Tax Code of the Russian Federation. Therefore, if an employer undertakes to pay rent for a foreigner’s home, he does so of his own free will. Consequently, in this case, when recognizing these costs for tax accounting purposes, the same approach is applied as in relation to Russian employees. That is, the cost of paying for housing to employees of an organization who are citizens of foreign countries can be taken into account as expenses when calculating income tax in an amount not exceeding 20% of the accrued monthly salary, subject to the conclusion of an employment contract.

However, in this case too, financiers demonstrate a rather strange logic. What does it mean to “only provide, but not pay”? If an enterprise owns residential premises (apartments, houses), then there are no problems with fulfilling the obligation to provide housing for a foreign employee. But how should the employer fulfill this obligation in the absence of such property? Only possible way to provide housing (thereby fulfilling the requirement of the law) is to rent for foreign worker residential premises, that is, temporarily use the lessor’s property, of course, for a fee (Article 606 of the Civil Code of the Russian Federation).

Preliminary results

An organization that pays rent for housing for out-of-town or foreign employees may face the following tax risks:

– tax authorities may consider such expenses unjustified and exclude them from the calculation of the taxable base for income tax;

– Tax authorities will allow only 20% of the employee’s accrued monthly salary to be taken into account when taxing profits.

Unfortunately, the organization will not be able to avoid these risks. But defending your interests in court is quite possible. In arbitration practice there are examples of positive decisions on disputes that arose in similar situations.

Arguments in case of dispute

Let us give several examples of court decisions on the issue under analysis.

The reason for the dispute considered in the Resolution of the Autonomous Region of the Moscow Region dated October 1, 2015 No. F05-11410/2015 in case No. A40-6591/15 was the following circumstances. The organization, in accordance with the terms of employment contracts, provided free housing to foreign specialists - French citizens. The company included the payment for rental housing in full in tax expenses on the basis of clause 4 of Art. 255 Tax Code of the Russian Federation.

Based on the results of the inspection, the inspection concluded that the organization is only responsible for providing, but not paying for, housing to foreign citizens who are employees of the organization. Therefore, the inspectors excluded from the costs part of the costs of paying for the rental of residential premises for these persons in an amount exceeding 20% of their wages. The result is an additional charge of only one income tax (without corresponding penalties) in the amount of 8.9 million rubles.

The arbitrators, recognizing the inspectors' arguments as unfounded, indicated the following:

1. The legislation does not establish any restrictions on the provision of rental housing to foreign employees. The company has the right to enter into agreements commercial hiring residential premises and then provide these premises for the use of their foreign employees. Moreover, the organization bears expenses in the form of rent in accordance with the requirements of the migration legislation of the Russian Federation, as well as in order to ensure that foreign employees can perform their direct labor duties.

2. The costs of renting residential premises for foreign employees comply with the provisions of Art. 255 of the Tax Code of the Russian Federation, are economically justified and documented. In any case, these costs could be taken into account by the company as part of labor costs on the basis of clause 25 of Art. 255 of the Tax Code of the Russian Federation (as other types of expenses incurred in favor of the employee, provided for by labor and (or) collective agreements) or among other production expenses in accordance with paragraphs. 49 clause 1 art. 264 of the Tax Code of the Russian Federation (as other documented and economically justified expenses incurred to support the organization’s activities).

3. Expenses for renting residential premises are not subject to the 20% limit established for non-monetary earnings (Article 131 of the Labor Code of the Russian Federation). The organization's expenses for renting residential premises for foreign employees are not part of the salary. It includes remuneration for labor, compensation and incentive payments. Expenses for maintaining employees (including those related to renting housing for them) are not included in wages. This means that when calculating income tax, the costs of renting apartments for foreign workers are taken into account in full.

The fact that the company rented housing and provided it to foreign specialists in compliance with the norms of Federal Law No. 115-FZ, and therefore it could not arbitrarily refuse to comply with the requirements of the current legislation, is also noted in the Resolution of the Federal Antimonopoly Service of the North-West District dated April 11, 2014 No. F07-1987/2014 in case No. A56-18767/2013. As the arbitrators emphasized, the company’s incurrence of expenses to pay for the rent of an apartment for an invited specialist follows from the actual common will of the parties to the agreement on the provision of personnel and this circumstance must be taken into account when assessing the consequences of the agreement, in particular, tax ones.

In disputes when enterprises rent residential premises for employees - Russian citizens, the arbitrators also proceed from the fact that the decision to assess additional income tax on the episode of overestimating housing costs for employees is based on an incorrect interpretation and application of Art. 131 Labor Code of the Russian Federation. According to the judges, the established 20% limit on payments in kind applies only to the wages of employees and is not subject to application to other payments in their favor, which includes payment for the rental of residential premises (see Resolution of the Autonomous Region of the Moscow Region dated 12.09. 2014 No. F05-9828/14 in case No. A40-9805/14).

Example

The organization invited a highly qualified specialist – a foreign citizen – to work. According to the terms of the employment contract concluded with him, the foreigner was provided with an apartment to live in, the rent of which was paid by the organization. The monthly rent is 25,000 rubles, which does not exceed 20% of the specialist’s accrued monthly salary. How to reflect the costs of renting an apartment in an organization’s accounting?

If the organization adheres to the official approach of the regulatory authorities, then it will make the following entries in its accounting monthly:

– Debit 20 (26, 44) Credit 70 – expenses for remuneration of a foreign employee are reflected;

– Debit 70 Credit 76 – reflects the cost of rent that was paid for the employee as payment for labor.

In tax accounting, the indicated amount of rent is based on clause 25 of Art. 255 of the Tax Code of the Russian Federation will be included in labor costs in full.

But there is also Alternative option recognition of designated expenses (supported by the judges):

– Debit 76 Credit 51 – rent for the apartment was transferred;

– Debit 91-2 Credit 76 – rent payment included in other expenses.

For tax purposes, the specified amount of rent based on paragraphs. 49 clause 1 art. 264 of the Tax Code of the Russian Federation is included in other expenses associated with production and sales.

Let's summarize what has been said. The organization has the right to rent residential premises for its employees (both Russian and foreign citizens). Officials of regulatory authorities believe that for profit tax purposes, the amount of rent can be recognized as part of labor costs under clause 4 of Art. 255 of the Tax Code of the Russian Federation - in an amount not exceeding 20% of the accrued wages of such employees. Following such a position is unlikely to cause complaints from the tax authorities. But the inclusion of rent in tax expenses in full in accordance with paragraph 25 of Art. 255 or pp. 49 clause 1 art. 264 of the Tax Code of the Russian Federation is associated with tax risks and, most likely, will lead to a dispute with inspectors.

In accordance with paragraph 29 of Art. 270 of the Tax Code of the Russian Federation for profit tax purposes, in particular, the organization’s expenses for paying for goods for personal consumption of employees, as well as other similar expenses made for the benefit of employees.

Federal Law of July 25, 2002 No. 115-FZ “On the legal status of foreign citizens in the Russian Federation.”