Contract agreement with an individual - sample and form 2021

Increasingly, employers are offering registration under a GPC agreement. Many people think that this is a type of employment agreement, but in reality it is not. We will tell you how a civil law contract differs from an employment contract, what risks it carries for the employee and the employer, who pays what taxes and is it worth agreeing to work under a civil law contract with an individual?

The article will be long, but we recommend that you read it carefully to the end. This will save you from a lot of trouble.

What is registration under a GPC agreement and how does it differ from an employment contract?

A civil law agreement (abbreviated as GPC) is a document that is regulated by the norms of the Civil Code of the Russian Federation. Its essence is that the parties specify in it the result of the work that the customer should receive, property relations and other issues, without entering into an employment relationship

.

Simply put, under a GPC agreement, an individual undertakes to perform certain work for an organization or individual entrepreneur with a certain result. In this case, the performer will not be an employee of the company or individual entrepreneur.

Types of civil contracts:

• contract agreements,
• contracts for paid services,
• copyright agreements, for example, to write a book for a publishing house or an article for a magazine. Such agreements can be concluded with freelancers.

The norms of the Labor Code do not apply to GPC agreements . Relations between the parties are regulated by Part 2 of the Civil Code of the Russian Federation (chapters 37-41). The document should not use labor law terms.

Several more important features of GPCs that distinguish them from employment contracts:

• According to a civil contract, the main thing is the result, not the process. A deadline must be set and the result of the work must be determined. Under an employment contract, an employee is assigned to a specific position, which involves the performance of certain job duties.
• A civil law agreement must have expiration dates for the agreement (Article 708 and Article 783 of the Civil Code of the Russian Federation). Employment contracts in most cases do not have specific validity periods.
• A separate chapter is devoted to each type of agreement, which may be of a civil nature. The Civil Code of the Russian Federation gives precise definitions to the basic concepts - work and service - in Article 703 and Article 779, respectively.

How to avoid recognition of GPA as an employment contract

There is a specific list of employer errors developed in practice by judicial and regulatory authorities when concluding a civil contract with an individual , which indicate the labor nature of the relationship (see letter of the Federal Tax Service of Russia for Moscow dated December 25, 2007 No. 21-11 / [email protected] , determination of the Armed Forces of the Russian Federation dated 02/05/2018 No. 34-KG17-10). To avoid recognizing a contract as an employment contract, you must avoid making these mistakes.

Employer's mistakes due to which the civil process agreement is recognized as an employment agreement

1. Establishing a specific job function for an employee. For example, constant office cleaning is a labor function, as opposed to a one-time contract for cleaning services.
2. Payment for the labor process, not a specific result. During general cleaning of the workshop, the result of which is accepted according to the act, the result is paid for, and this is an obvious GPA. And in the case of payment of remuneration for daily cleaning, there is payment for the process, which means there is a risk of recognition as an employment contract.
3. Ensuring appropriate working conditions. Thus, the fact that an organization purchased detergents for cleaning according to the GPA without reflecting the process of allocating the costs of their acquisition in the GPA agreement can be interpreted in favor of the labor nature of the relationship.
4. Fixation of the contractor’s obligation to comply with internal labor regulations and job descriptions.

To learn more about how to draw up a GPA so that it is definitely not recognized as an employment contract, read in the ConsultantPlus system. To log in, sign up for a 2-day free trial.

Pros and cons of a civil contract for the performer

What consequences will the reclassification of a civil law contract into an employment contract entail?

If a civil law contract is recognized as an employment contract, the employer may be required to:

• recalculate and pay taxes and insurance premiums;
• recalculate and pay additional wages and other payments to which the employee is entitled in accordance with labor legislation;
• compensate the employee for moral damage (if such a claim is filed);
• add an employee to the staff.

In addition, the employer may be held administratively liable under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation in the form of a fine in the amount of 5,000 to 10,000 rubles. for individual entrepreneurs, from 50,000 to 100,000 rubles. for organization and from 10,000 to 20,000 rubles. for an official.

In order to avoid the above consequences, it is necessary to carefully draw up the contract, avoiding the inclusion of provisions specific to labor relations.

Pros and cons of a civil contract for the customer

Adverse consequences of recognizing GPA as an employment contract

Let's see what happens if the GPC agreement is recognized as a labor agreement::

• additional accrual of contributions to the Social Insurance Fund based on the results of a tax audit (resolution of the AS VSO dated October 7, 2015 in case No. A33-15861/2014);
• the obligation to compensate the employee for payments due to him related to unprovided vacations (appeal ruling of the Magadan Regional Court dated June 21, 2016 in case No. 2-1541/2016, 33-525/2016);
• compensation for moral damage to an employee under Art. 237 of the Labor Code of the Russian Federation (see, for example, the appeal ruling of the Krasnoyarsk Regional Court dated June 21, 2017 in case No. 33-7997/2017);
• administrative liability under clause 4 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation.

When and with whom can a GPC agreement be concluded?

It is important to understand that GPC is not an employment relationship: the subject of regulation is the result, not the process of activity.

If the conclusion of such an agreement with a legal entity or individual entrepreneur does not raise any doubts, then with an individual the situation is more complicated. It does not matter what services it provides. Article 15 of the Labor Code of the Russian Federation establishes the inadmissibility of disguising labor relations as civil law .

There is a risk of reclassification of a GPC agreement with an individual into an employment contract if the inspectors consider that the customer and the contractor are actually in an employment relationship. It is extremely important what wording will be in the civil contract and in the acts drawn up based on the results of the work. In any case, when concluding a GPC agreement with an individual, it is better for the customer to consult with lawyers about the risks and check all the wording in the documents.

There are no strict criteria for the validity period of GPC agreements. The time frame is determined during the discussion, mutually.

This agreement can also be extended (extended). In this case, an additional agreement must be drawn up to change the timing of the work.

Types of GPA

A GPC agreement can be concluded with an individual:

• Contract. The parties are the customer and the contractor. The customer gives the contractor a task, the result of which he undertakes to accept and pay for at the cost established in the agreement. The contractor guarantees the completion and delivery of the task within the framework of the contract within a certain period. At the same time, it is permissible to involve other persons (subcontractors), the only important thing is compliance with deadlines and the quality of the work performed.

The result of acceptance of the work is an act signed by both parties. The amount and procedure for payment must be strictly specified in the GPA.

• For the provision of services . Parties to the contract are the customer and the contractor. The contractor is obliged to provide services in accordance with the terms of the agreement, and the customer is obliged to pay for them. All general provisions that are valid for a contract are applicable to such an agreement.

• Author's order. The author, on the one hand, and the customer, on the other, enter into an agreement that the author agrees to create a work of art, literature, science, etc. and transfer it to the ownership of the customer. The customer is obliged to accept it and pay. The agreement stipulates the deadline for delivery, the amount and procedure for payment.

In each case, the contract is of a compensatory nature, i.e. an individual receives remuneration for work or services. The difference from other types of contractual relationships is that the contractor receives a result that is separate from the work itself.

In what cases can a GPC agreement be recognized as a labor agreement?

Recharacterization of a GPC agreement is at least unpleasant, because a civil transaction with an employee has a number of big advantages. Such personnel are freelance. This means less personnel work, no obligation to pay for sick leave and vacations, including maternity and children's leave. You don't even need to provide a workplace.

If the agreements are transferred to the category of labor agreements, you will have to pay additional contributions to the Social Insurance Fund and pay penalties. They may be required to assign saved social benefits.

The main criteria for recognizing a relationship as an employment relationship:

• The GPC agreement specifies the labor function, and not specific work and results. For example, it is stated that the performer writes texts in general, but specific texts must be specified (for example, a copywriter undertakes to prepare a text about the company and descriptions for 50 product cards).
• The contractor receives the same payment every month. This looks strange because... under a GPC agreement, the scope of work usually varies and cannot be the same every month.
• The performer systematically performs the same work. The range of his tasks does not change. iThe contractor works on the customer’s premises and has an equipped workplace there.
• The agreement does not contain mandatory clauses, for example, on the timing of the work.
• The contract specifies internal rules.
• The contractor is provided with vacation, paid sick leave or given a bonus, which can only be received by a full-time employee registered in accordance with the Labor Code of the Russian Federation.
• There is a mention of subordination to full-time employees of the customer company.
• The contractor under the GPC agreement is sent on a business trip and is paid travel allowances.

Documentation of a construction contract with an individual

A distinctive feature of a contract agreement is its relationship to civil law, which does not depend on the status of labor law.
According to Art. 702 of the Civil Code of the Russian Federation, a contract agreement refers to a legal relationship that imposes an obligation on the Contractor to perform work ordered by the Customer, with completion at the agreed time. Contract work is regulated by Art. Art. 740-757 Civil Code of the Russian Federation. Executed contract agreements between a company and an individual attract inspectors who seek to classify the contract as a transaction that conceals the labor relationship. If this fact is proven, the employer will have to fork out a fine.

There is no unified form of contract agreement. Therefore, a correctly filled out contract will minimize the risk of bringing the employer to administrative penalties.

Written contract form completed in accordance with Art. 161 of the Civil Code of the Russian Federation with a detailed description of the conditions for acceptance and delivery of the completed scope of work, the clarity of the displayed scope of work and the display of deadlines for their completion, will protect the head of the company from classifying such a contract as illegal.

Based on the above, it can be noted that any individual can become a performer. At the same time, the transaction must be one-time. If a contract is systematically executed with the same individual, the tax authorities will reclassify such a contract into an employment agreement with all the resulting consequences, that is, the employer will be fined, and the employee will be recognized as a member of the company’s workforce.

What taxes does the employer pay under the GPC agreement?

If the payment is made to an individual, then personal income tax in the amount of 13% must be withheld and paid from the fee. If the customer is an organization, then this tax is calculated and transferred to the budget by the customer, since in this case he is the tax agent.

For example, the remuneration under the GPC agreement is 10,000 rubles. In fact, the customer will transfer 13% less to the employee, that is, 8,700 rubles. The amount of personal income tax in the amount of 1300 rubles. the customer will transfer it to the budget.

An exception is a GPC agreement concluded with an individual entrepreneur. In this case, taxes on payments under a civil law agreement are paid by the individual entrepreneur.

Table 1. Taxes that must be paid on payments under a civil contract.

Important nuances regarding the taxation of payments under GPC agreements:

• An individual, receiving payments under GPC agreements, has the right to use standard tax deductions . For example, deductions for the purchase of real estate, payment for education or medical services, including dental services, deductions for the presence of dependent minor children. In this way, you can reduce the amount of income tax that is transferred to the state, or return previously paid taxes from the budget.
• To take advantage of tax deductions, an individual must provide receipts for all expenses.
• The deduction and transfer of insurance premiums under the GPC agreement by customers is carried out not in favor of various funds, but strictly to the tax office.
• Any fees are paid only if the agreement between the contractor and the customer involves the provision of copyright services or the performance of contract work. When executing agreements regarding a lease or a cash loan, social payments are not transferred to the local education budget.
• When concluding a transaction, the purpose of which is not only to perform work, but also to transfer rights to property, the income lines of the second party must be divided into taxable remuneration and non-taxable financial receipts. Contributions will be deducted only from the first part.

The procedure for accepting work under a civil contract

Completed work (services) is accepted according to the acceptance certificate for completed work (services).

For violation of deadlines for completing work, a penalty in the form of a fine or penalties may be collected from the contractor . In case of damage to the customer's property, the contractor must compensate for the losses in full.

In addition, unlike an employment contract, under contract or paid services, the contractor bears the risk of accidental death or accidental damage to the result of the work performed before its acceptance by the customer.

General provisions

To understand whether signing a civil agreement is appropriate in a particular situation, you need to understand what a civil contract with an employee is. A document called a civil contract is an agreement between the parties (individuals and organizations) aimed at formalizing, changing, terminating civil rights, and establishing the obligations of the parties.

The parties to the GAP are:

• individuals;
• individuals and legal entities;
• legal entity.

The subject of the contract is the performance of work, the execution of which is confirmed by an acceptance certificate. Since the document implies the performance of certain actions on the part of the performer, the parties can be recognized as an employee and an employer, to whom all the norms of the Civil Code of the Russian Federation apply.

The document is drawn up in accordance with the civil norms adopted in the Russian Federation, and the main requirement for the content of the document is the absence of contradictions with the provisions of the Civil Code of the Russian Federation.

Types of document

The application of GPA is wide, since it covers different types of relationships:

• on the transfer of property (deed of sale, deed of gift, supply agreement, exchange);
• performance of work (agreement with the contractor);
• provision of services (storage, insurance, transportation).

A sample civil law contract with an employee is used based on the specific needs for services from the organization.

Download a sample civil contract with an employee (63.0 KiB, 9,331 hits)

How is it different from an employment contract?

If the application of labor and civil law contracts were equivalent, employers would often prefer to enter into a civil contract, since there is much less liability under it. It is necessary to determine what a civil contract with an employee is, and what are the main differences, advantages and disadvantages.

There are some peculiarities in drawing up a UGS agreement, a sample of which requires the presence of:

1. The scope of work is specified in advance and assumes a one-time need for services.
2. There is no requirement to include a new unit in the staffing table.
3. The priority of the performer is the result of the activity.
4. The parties to a contractual relationship are in an equal position; the principle of subordination does not work.
5. The process of fulfilling obligations by the employer is not regulated; only the result of the work that is performed by the contractor at his own expense is important.
6. An employee under the GAP is not obliged to act personally; he has the right to attract additional labor resources if necessary.
7. Payment for the work is made only at the end, when the employer has accepted it. The salary is called remuneration, paid after signing the certificate of surrender.
8. The period of recruitment is limited, the exact period is indicated in the document.
9. Labor law guarantees do not apply to the performer.

The procedure for terminating the GPC agreement

In this part of the article, we will tell you how to correctly terminate a GPC agreement and what nuances there are in this process.

• The contract for the provision of services can be terminated unilaterally by both the customer and the contractor if one pays the other for the expenses incurred. Only the customer has the right to terminate the contract unilaterally if he pays the contractor’s expenses.
• How to terminate a GPC agreement if both parties decide to terminate cooperation? In this case, a written termination agreement is drawn up. The procedure for termination may be specified in the GPC agreement. Then the parties act according to the described rules.
• It is possible to terminate a GPC agreement through the court only if the other party is against or does not respond to the notice of termination within the period established by the agreement or within 30 days if no period is established.

Unlike an employment contract, the GPC regulates itself in terms of the procedure for termination by the parties. These conditions may be stated in one of the clauses or be part of the “rights of the parties”.

Typically, the contract provides certain guarantees for the parties in case the contractor begins work on the order and the client decides to abandon the project. The clauses of the agreement may provide for compensation or other sanctions against the party initiating the severance of the relationship. If there is no such clause, the party must write a notification letter with explanations on the basis of which the contract can be terminated.

The advance paid under the GPC agreement can be returned to the customer subject to failure to fulfill the agreement or failure to meet deadlines, if this is specified in the agreement itself, or in court.

Summary

A GPC agreement is not a simple document or formality. Before signing it, you must carefully read all the terms and conditions.

If you do not understand something or doubt that the document protects your interests, be sure to consult with lawyers. A civil law contract is not an employment agreement, where the employee is seriously protected by the norms of the Labor Code of the Russian Federation. Most often, GPC protects the interests of the customer and can have many nuances in relation to the contractor.

Author: Kadrof.ru (KadrofID: 79032) Added: 05/30/2019 at 13:14

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Comments (31)

Valentina (KadrofID: 100310)

Please tell me, when you work under a civil service agreement, the employer provides income certificates to apply for a subsidy

04/05/2020 at 14:25

Sergey Antropov (KadrofID: 5)

Valentina, if you are asking about a certificate of income in form 2-NDFL, then you can receive such a certificate when working under a GPC agreement. In it, the employer will reflect the income you received and taxes withheld. The issuance of such a certificate is regulated by Art. 230 of the Tax Code of the Russian Federation.

05/01/2020 at 17:37

Natalia (KadrofID: 111378)

Tell me, if a person is employed under a GPC agreement, can he register with the labor exchange?

08/05/2020 at 01:20

Sergey Antropov (KadrofID: 5)

Natalya, no. According to the Law of the Russian Federation of April 19, 1991 N 1032-1 Article 2, such citizens are considered employed, i.e. having income.

08/05/2020 at 22:21

Maxim (KadrofID: 111438)

Tell me, is the existence of a Civil Legal Agreement (CLA) without receiving income for a certain period of time equivalent to conducting business during this period? After all, in fact, since there is no income, then there is actually no activity! And the concluded GPC Agreement is only a formal necessity for the possible conduct of activities.

08/06/2020 at 10:29

Sergey Antropov (KadrofID: 5)

Maxim, the term conducting business is usually used for individual entrepreneurs or organizations. A GPC agreement is concluded with an individual to perform certain work. Therefore, please clarify your question.

08/07/2020 at 22:48

Olga (KadrofID: 112288)

If, as your article says, the main thing is the result, and not the process, is it then legal for the organization to require me to work according to the schedule they have determined (I am not satisfied with such a schedule)?

08/22/2020 at 15:47

Tatiana (KadrofID: 113091)

Can individuals be attracted? Is a person working under a GPC agreement liable for illegal conduct of business activities?

09.09.2020 at 11:34

Sergey Antropov (KadrofID: 5)

Olga, legally no, but in practice it is better to agree with the customer on working conditions acceptable to both parties. After all, the customer can initiate termination of the contract.

09.09.2020 at 22:29

Sergey Antropov (KadrofID: 5)

Tatyana, if you are not disguising your business activities under the guise of GPC, then I see no reason. You pay taxes, you do work.

09.09.2020 at 22:30

Enver (KadrofID: 114155)

Can the employment center check the number and date of the GPC agreement?

09.30.2020 at 21:47

Annushka24 (KadrofID: 114304)

Hello. She worked under a contract for the provision of paid services. During this time I received another education. To receive a tax deduction for training, I asked for a 2NDFL certificate. I was told that I was not entitled to such a certificate precisely because I worked under such an Agreement and did not pay taxes. I objected that, by law, the employer had to pay taxes. I was refused. What to do? Should I file with the Labor Inspectorate or court? Or will everything be useless? I read the contract carefully. The tax issue is not addressed in any way.

04.10.2020 at 01:31

Sergey Antropov (KadrofID: 5)

Enver, I’m not sure that CZ has such capabilities. They are most likely checking to see if any fees have been paid for the employee by the customer. After all, taxes are withheld from payments under civil contracts.

05.10.2020 at 13:48

Yulia Bocharova (KadrofID: 115423)

Tell me whether the amount of contributions should be included in the contract amount, or whether the amount should be included with personal income tax. Now there are disagreements in the institution on this issue. Previously, the amount with personal income tax was indicated, but a new chief accountant came in and now we are calculating all taxes.

10/24/2020 at 07:04

Juliana (KadrofID: 116010)

If I am registered with the Employment Center and receive unemployment benefits and I have registered for a job or part-time job under a GPC agreement, can I lose my benefit payment for the past month? Does the employment center have the right to suspend benefit payments?

02.11.2020 at 15:09

Roman (KadrofID: 116273)

The GPC agreement specifies the amount of 10,000 rubles, after signing the work acceptance certificate, I receive 8,700 rubles, that is, only personal income tax is withheld, and the article states that the employer must pay contributions to the Compulsory Medical Insurance Fund and the Pension Fund. Is this possible or have I misunderstood something? And also, how should my work be reflected on the tax website?

06.11.2020 at 02:01

Sergey Antropov (KadrofID: 5)

Yulia, as far as I know, the contract specifies the amount that includes personal income tax. Tax is withheld when paying money to individuals. face. I think that this can be stated in the documents as a separate paragraph.

07.11.2020 at 22:00

Sergey Antropov (KadrofID: 5)

Juliana, a citizen loses the right to receive benefits after employment. Because ceases to be unemployed. If I understand your question correctly, you have already received what was paid earlier and are not obligated to return it. But since you started working, you no longer have to receive benefits.

07.11.2020 at 22:01

Sergey Antropov (KadrofID: 5)

Hello, Annushka24! When paying money to individuals. For individuals, organizations act as a tax agent and must withhold and transfer taxes to the budget themselves. I assume that the organization for which you worked did not officially carry out the contract and did not pay taxes, and therefore does not want to issue you a certificate. If you worked somewhere else, try to get a certificate there to receive a personal income tax refund.

07.11.2020 at 22:20

Larisa (KadrofID: 116709)

Hello, how can I get Azerbaijani citizens to work for an individual entrepreneur on a patent if they do not have SNILS?

11/13/2020 at 18:41

Vladimir (KadrofID: 116906)

Hello, the employment center sent a letter demanding the return of the paid benefits due to the fact that I was working at that time under a civil service agreement. It turned out that since last year I have been accruing experience at Yandex LLC without payments. What can I do? Can I be sued or forced to return benefits?

16.11.2020 at 21:21

Tatiana (KadrofID: 118674)

I worked under a GPC contract and am a pensioner. I moved to another region and submitted documents to the Pension Fund to reimburse the relocation costs. The Pension Fund requires a certificate stating that I did not receive these payments from the organization with which the GPC agreement is concluded. Is it legal for the Pension Fund to require such certificates and is the organization obligated to issue them?

12/14/2020 at 11:17

Sergey Antropov (KadrofID: 5)

Hello, Vladimir! If you sent a letter, then this question will not be put on hold. It’s better to react, come to the employment center and figure everything out. If, according to the law, you were not entitled to benefits, because... worked, then unfortunately, the benefits will be required to be returned.

12/19/2020 at 12:58

Sergey Antropov (KadrofID: 5)

Hello Tatiana! The Pension Fund of the Russian Federation is a state structure and must act in accordance with the laws. If they ask for a certificate, it means they need it. Therefore, it is better to provide it. The organization must issue it, there are no obstacles to this.

12/19/2020 at 12:59

DMITRIY KOLESNIKOV (KadrofID: 119033)

Is it possible, while working under the GPC, to get another job officially using a work book?

12/20/2020 at 14:31

Annushka (KadrofID: 120205)

Hello. Can I get a job under the civil labor law without resigning from my previous job, where I worked under an employment contract (where I am on maternity leave)?

01/11/2021 at 15:33

Maria (KadrofID: 121179)

Good afternoon Please tell me, if a GPC agreement for the provision of services is concluded with an individual occasionally (2 times a year or once a year), will an employment relationship be considered in this case? The agreement is concluded of a purely civil nature; the frequency of concluding such agreements with the same person is simply not clear. The term for completing services is about 10 days.

01/25/2021 at 21:46

Maria (KadrofID: 121179)

Hello, DMITRIY KOLESNIKOV! Yes, you can, since according to the GPH agreement you perform certain work or services are provided, this is regulated by civil law, not labor law. You have the right to enter into labor relations and these relations, accordingly, will be regulated by the Labor Code of the Russian Federation.

01/25/2021 at 21:54

Maria (KadrofID: 121179)

Hello, Annushka! If you are not a civil servant, you can enter into a civil contract. State owners are increasingly strict in this regard, since a conflict of interest may be perceived, and most often there is a ban on engaging in other income-generating activities.

01/25/2021 at 22:02

Sergey Antropov (KadrofID: 5)

Dmitry, it’s possible, because... work on GPC may not be the main one.

Annushka, I think so, because... You can work part-time. Just in case, I recommend checking your employment contract and checking to see if there are any clauses prohibiting you from working in other places.

01/25/2021 at 22:34

Maria (KadrofID: 121179)

Good afternoon Please tell me, if a GPC agreement for the provision of services is concluded with an individual occasionally (2 times a year or once a year), will an employment relationship be considered in this case? The agreement is concluded of a purely civil nature; the frequency of concluding such agreements with the same person is simply not clear. The service period is about 10 days, consultations on certain topics.

01/28/2021 at 18:50