In 2021, the regime for the self-employed is valid in every constituent entity of the Russian Federation. For individual entrepreneurs and organizations, ordering services from an NAP payer is more profitable than hiring an employee. We will tell you in our publication how to conclude an agreement with a self-employed person so as not to break the law.
Who is self-employed
A self-employed person is a person who independently provides services or performs certain work. He can be registered as an individual entrepreneur, but most often, he is an ordinary individual. Clients of a self-employed person can be organizations, individual entrepreneurs, or just individuals.
To obtain self-employed status, you need to register on the Federal Tax Service website or in the “My Tax” application. There is no need to maintain reports or use a cash register, and the tax payable is calculated automatically.
The tax that self-employed people pay is called professional income tax, and its rate depends on the status of the client to whom the services are provided:
- 4% on income received from individuals;
- 6% on income received from individual entrepreneurs and organizations.
When receiving payment for services or work, a self-employed person uses a free application to generate a receipt, which can be accepted as justification for expenses.
Self-employed people pay insurance contributions for their pensions on a voluntary basis. As for health insurance, part of the professional income tax they pay is used for these purposes.
Dispute Resolution
8.1. All disputes related to the conclusion, interpretation, execution and termination of the Agreement will be resolved by the Parties through negotiations.
8.2. If an agreement is not reached during negotiations, the interested Party shall submit a claim in writing, signed by an authorized person.
The claim is sent in any of the following ways:
- by registered mail with acknowledgment of delivery;
- courier delivery. In this case, the fact of receipt of the claim must be confirmed by a receipt, which must contain the name of the document and the date of its receipt, as well as the surname, initials, position and signature of the person who received this document.
The claim entails civil consequences for the Party to which it is sent from the moment it is delivered to the specified Party or its representative. Such consequences also arise in cases where the claim was not served on the addressee due to circumstances beyond his control.
The claim is considered delivered if it:
- received by the addressee, but due to circumstances depending on him, was not delivered or the addressee did not familiarize himself with it;
- delivered to the address indicated in the Unified State Register of Legal Entities or named by the addressee himself, even if the latter is not located at such an address.
8.3. The claim must be accompanied by documents substantiating the demands made by the interested Party (if the other Party does not have them), and documents confirming the authority of the person who signed the claim. These documents are submitted in the form of duly certified copies. If a claim is sent without documents confirming the authority of the person who signed it, then it is considered unsubmitted and is not subject to consideration.
8.4. The Party to which the claim is sent is obliged to consider the received claim and notify the interested Party in writing about the results within ___ (_____) business days from the date of receipt of the claim.
8.5. In the event of failure to resolve disagreements in the claim procedure, as well as in the event of failure to receive a response to the claim within the period specified in clause 8.4 of the Agreement, the dispute is referred to the arbitration court at the location of the defendant in accordance with the legislation of the Russian Federation.
What kind of agreement is concluded with a self-employed person?
The activities of the self-employed are regulated by law dated November 27, 2018 N 422-FZ, which states that such persons do not have an employer. Additionally, Article 6 states that professional income tax is not imposed on income received within the framework of an employment relationship. It follows from this that a contract with a self-employed person cannot be an employment contract.
Moreover, Law No. 422-FZ establishes a ban on hiring a former employee of the customer as self-employed if the employment relationship between them ended less than two years ago. This rule was introduced specifically to prevent employers from trying to en masse transfer workers to self-employment, thereby reducing their fiscal burden.
Thus, an agreement with a self-employed person can only be civil law, but this also has its own nuances.
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If a self-employed person has the status of an individual entrepreneur
In this case, a contract or provision of services is drawn up in the same way as an agreement with an individual entrepreneur in any other taxation system. An individual entrepreneur, as a performer, is the same independent business entity as his customer (organization or other individual entrepreneur).
Under a contract or service agreement, the individual entrepreneur independently calculates and fulfills his obligations to the budget. This means that the customer does not have to withhold personal income tax from the remuneration or transfer insurance premiums for it.
Before concluding an agreement with a self-employed individual entrepreneur, conduct a standard check of the counterparty by requesting or independently obtaining an extract from the Unified State Register of Individual Entrepreneurs. When agreeing on the cost of services or work, the parties usually indicate the taxation system, in particular, whether VAT is included in the price or whether the individual entrepreneur is not a payer of this tax.
The contract does not need to indicate that the contractor is a self-employed person, because it is not entirely correct to apply this concept to individual entrepreneurs. It is enough to enter identification codes (TIN and OGRNIP) into the contract details and indicate that the contractor is a payer of professional income tax.
If you have already collaborated with this entrepreneur before he switched to paying NAP, then it is not necessary to renew the previous agreement with him. The Federal Tax Service of Russia reported this in a letter dated February 20, 2019 N SD-4-3/ [email protected] And only if the cost of services or work included VAT, it is necessary to draw up an additional agreement to the contract to settle the price, because tax is not paid on NAP for added value.
If the self-employed person is an ordinary individual
If the contractor is not registered as an individual entrepreneur, it is important to clarify his self-employed status in the contract. The fact is that for an ordinary performer who is not a professional income tax payer, the customer must pay insurance contributions for pension and health insurance.
To do this, you can request an extract from the “My Tax” application from the contractor and attach it to the agreement. Additionally, you should check this information yourself using the free service of the Federal Tax Service.
Don't neglect this check! If it turns out that the contractor is self-employed only in words, the customer will have to pay insurance premiums for him at his own expense, as well as withhold and transfer personal income tax from remuneration for services or work.
Another important nuance is that for NAP payers the annual income limit is set at 2.4 million rubles. Therefore, it is necessary to check with the contractor whether this limit has been violated or whether it will not be exceeded after the execution of a specific contract. Indeed, if the established limit is exceeded, the contractor ceases to be self-employed and becomes an ordinary individual with all the ensuing consequences for the customer.
As a measure of liability, it is possible to establish for the self-employed the obligation to compensate for possible losses (insurance premiums, penalties and fines that the Federal Tax Service will collect from the customer) if he does not report the loss of his status as a tax payer.
Force majeure circumstances
6.1. The Parties are released from liability for non-fulfillment or improper fulfillment of obligations under the Agreement if proper fulfillment turned out to be impossible due to force majeure, that is, extraordinary and unpreventable circumstances under the given conditions, which mean: _________________________ (prohibited actions of the authorities, civil unrest, epidemics, blockade, embargo , earthquakes, floods, fires or other natural disasters).
6.2. If these circumstances occur, the Party is obliged to notify the other Party about this within _____ (__________) business days.
6.3. A document issued by _________________________ (authorized government agency, etc.) is sufficient confirmation of the presence and duration of force majeure.
6.4. If force majeure circumstances continue to apply for more than _____, then each Party has the right to unilaterally withdraw from the Agreement.
Features of the contract with the self-employed
In a contract with a self-employed person, conditions typical of employment contracts must not be allowed. Therefore, general recommendations apply here when concluding a civil contract. Here are some of them.
- You cannot list the job responsibilities or functions of the contractor; the subject of the contract must be the performance of a specific service or scope of work.
- Services or work are accepted according to the act, and the payment of remuneration is tied to their completion (you can provide for part of the payment in advance).
- It is unacceptable to indicate in the contract the need to obey the customer and work under his control, comply with internal rules, or fix working hours.
- The customer is not obliged to ensure the creation of conditions for the contractor to provide services or perform work, but may provide his own materials or equipment.
- The contractor is not subject to disciplinary measures characteristic of an employment contract, however, compensation for material damage to the customer may be provided.
The Federal Tax Service is especially biased in checking for the existence of labor relations contracts with self-employed people who have only one and at the same time regular customer. Therefore, it is safer if your contractor also has other clients.
Responsibility of the parties
5.1. For violation of the terms of provision of Services (clause 1.3 of the Agreement), the Customer has the right to demand from the Contractor payment of a penalty (fines) in the amount of _____ (__________) percent of the cost of Services not provided on time for each day of delay.
5.2. For violation of payment terms (clause 4.2 of the Agreement), the Contractor has the right to demand from the Customer payment of a penalty (penalty) in the amount of _____ (__________) percent of the unpaid amount for each day of delay.
5.3. The Party that fails to fulfill or improperly fulfills its obligations under the Agreement is obliged to compensate the other Party for losses caused by such violations.
5.4. In all other cases of failure to fulfill obligations under the Agreement, the Parties are liable in accordance with the legislation of the Russian Federation.
conclusions
- Cooperation with a self-employed person is a good way to reduce labor costs, but the involvement of such a contractor must be justified.
- Before concluding an agreement with a self-employed person, be sure to check its status on the Federal Tax Service website and indicate that the contractor is a payer of professional income tax.
- If the tax payer is not an individual entrepreneur, check what income he has already received since the beginning of the year. If the established limit of 2.4 million rubles is exceeded, the contractor loses his self-employed status and becomes an ordinary individual, for whom the customer is obliged to pay insurance premiums.
- To include expenses for services or work of a self-employed person in the tax base, you need to request receipts from him, which is generated by the “My Tax” application. An agreement and an act are not enough for this.
Duration, modification and early termination of the contract
7.1. The agreement is valid for _____ from the date of its conclusion.
7.2. All changes and additions to the Agreement are valid if made in writing and signed by both Parties. The corresponding additional agreements of the Parties are an integral part of the Agreement.
7.3. The Agreement may be terminated early by agreement of the Parties, or at the request of one of the Parties in the manner and on the grounds provided for by the legislation of the Russian Federation.
Final provisions
9.1. The Agreement comes into force from the moment it is signed by the Parties.
9.2. Unless otherwise provided by the Agreement, notifications and other legally significant messages may be sent by the Parties by fax, e-mail or other method of communication, provided that it allows one to reliably determine who the message came from and to whom it was addressed.
9.3. The Agreement is drawn up in two copies, one for each of the Parties.
9.4. The following are attached to the Agreement:
- List of services provided (Appendix No. 1);
- Acceptance certificate for services provided (Appendix No. 2);
- ________________________________.
Addresses, details and signatures of the parties are written at the end of the agreement.
