Fictitious employment

It's no secret that in Russia the employment situation does not look the best. The financial situation of many citizens leaves much to be desired. In order to increase income or to receive government support, people agree to fictitious employment. And even for unofficial work. What it is? What are the pros and cons of these forms of work? Should they be used in real life? And should we be afraid of responsibility for such acts? The information below will help us answer all this.

Why use this scheme?

Referring to diagrams is relevant for situations where work is only needed in documentation.

Here are examples of such situations:

Women and girls receiving maximum benefits. Usually they are in position.
Parents who are required to pay child support and do not have a suitable official income.
Those who plan to get a mortgage, but cannot obtain income certificates.
Chiefs in state and municipal institutions with access to employee salaries.
Other persons for whom official status without real work is important.

Obtaining a certificate in form 2-NDFL for a loan

Many companies offer to buy a set of documents , including a 2-NDFL certificate and a work book. For an additional fee, in the event of a verification call from the bank to confirm the specified information by the employment organization, it will be confirmed.

The scheme has several disadvantages. Firstly, having sold the necessary papers, the intermediary is no longer interested in the quality of the goods being sold. Secondly, if fraud is discovered in a bank, it is difficult to prosecute the intermediary. Thirdly, it is impossible to find negative reviews about the intermediary’s work, since no one will write about ordering fake documents to get a loan.

Ultimately, having purchased the documents and agreed on reinsurance during a telephone call, the customer is subject to the article “by prior agreement.”

Information! This is punishable by up to 4 years in prison if the loan amount is no more than 1.5 million rubles.

About the advantages and disadvantages

It is not for nothing that fictitious schemes have become widespread: they are beneficial for employees and employers.

Benefits for the employee	Benefits for the employer
You can receive a large unofficial salary, but not spend it on alimony payments	Keeping taxes to a minimum. After all, the smaller the base that is officially subject to taxation, the less taxes you will have to pay
The main work does not take up all the time, it allows you to get additional income	Personnel documentation is not maintained to the required extent
Earnings in retirement, without losing the right to other social benefits	Lack of duties and obligations on each party towards the other
Employees are not subject to financial liability
Sometimes this leads to receiving larger amounts than in official interactions

Unofficial employment

The labor legislation of the Russian Federation does not consider such a phenomenon as unofficial employment. Therefore, citizens hired to perform any work without drawing up an employment or civil law contract do not have obligations towards the state in the form of paying taxes, but also do not have social guarantees and other rights guaranteed by the labor legislation of the Russian Federation.

The wages of workers employed unofficially are not accounted for and taxes are not paid on them, which is why they are also called “black” wages. By the way, where to complain about the payment of black wages - read on our website here https://otdelkadrov.online/6392-plyusy-minusy-chernoi-zarplaty-dlya-rabotodatelya-rabotnika-mesta-kuda-mozhno-obratitsya-po-povodu- zarplaty-v-konverte

This type of job placement as a phenomenon gained large-scale proportions after the start of the economic crisis in 2008. This has its own logical premises, which we will discuss further.

Fictitious employment: methods

There are several ways to fictitiously obtain a job.

Way	Description, risks
Getting a job during maternity leave, and then registering for maternity leave	The very fact of labor relations is considered illegal if it is found that the documents were drawn up only to increase the amount of maternity benefits.
When one of the parents gets a job in order to pay at least the minimum child support, although he receives another type of income, which is much more.	This method is used to provide deliberately false information regarding real earnings each month. It is beneficial for the citizen that the amount of alimony that is actually paid is reduced.

But this type of behavior is acceptable when the leader is a close friend or relative of a citizen. After all, the manager is entrusted with obligations associated with all benefits provided to the employee.

Sometimes such workers are hired by those who manage state or municipal institutions. Then there is a high probability that the employer will not only not pay, but will also appropriate the remuneration due to the citizen.

Managers themselves can offer options for fictitious employment - when in fact a person is on the staff, but in practice does not fulfill his duties.

Sometimes this scheme is adopted in collaboration with persons who have received one of the disability groups. The boss then appropriates the money intended for the subordinate. And the employee continues to receive experience for calculating a pension in the future.

pros

As a rule, any action has its pros and cons. Even illegal activities can seem extremely attractive. And therefore they actively agree to them.

Fictitious employment has the following advantages:

accrual of work experience;
the opportunity to receive benefits as officially employed people;
plenty of free time for family and entertainment;
receiving a salary in the established amount.

Unofficial work also has advantages. Among them it is customary to highlight:

fairly high earnings;
no taxation;
there is no employee responsibility for the work done;
the opportunity to work and receive a salary together with social benefits;
additional income in addition to official work.

In addition, fictitious employment for alimony in Russia is quite common. In this case, the alimony payer underestimates the real salary or takes up a job unofficially, thereby bringing the earnings level to zero. Accordingly, a person will pay the minimum alimony for the maintenance of minor children. Not entirely fair, but this practice is becoming more and more common.

Informal employment of citizens: what threatens the manager?

At the level of laws, the essence of this phenomenon is practically not regulated. Therefore, actions can be regarded as fraud on either side.

If there is evidence in favor of fictitious employment, the full amount transferred to the citizen in such an illegal scheme is recovered. Additionally, there is a system of fines. An employer may be held criminally liable if it is proven that an act of fraud or theft of funds belonging to the state took place.

The provisions of the Criminal Code of the Russian Federation also apply to those violators who participated in the creation of counterfeit documents.

More severe penalties are applied to those found guilty of unofficial labor. The following types of penalties apply to violators:

Prohibition of work in a specific position.
Imprisonment for a certain period of time.
Involvement in forced labor.
A fine of at least 20% of taxes and other amounts taken from the state.
Recovery from the manager of all amounts that he has not paid, despite the current law.
Powers are suspended for 3 calendar months or more.
Administrative penalties in the form of fines up to 50 thousand rubles.

Flaws

Fictitious employment has almost no disadvantages. Perhaps these include:

risks of solving a crime in the absence of good connections;
no experience in the field of employment (real experience).

Otherwise, staying in a company as a subordinate, but without actually performing work duties, is a whim. The dream of many, which is available only to individuals.

But unofficial work has more disadvantages. For both employees and employers. These include:

lack of any labor guarantees;
length of service is not accrued;
no contributions are made to the Pension Fund;
risks of not receiving wages for work performed;
prosecution if a violation is discovered.

Despite all this, the studied forms of labor in Russia are actively disseminated and applied. For example, some use fictitious employment for people with disabilities. This is usually done by employers who do not want to provide benefits and bonuses to people with health conditions. In fact, the person will work for the company, but he will not have any legal rights or benefits.

How can you prove that employment is fictitious?

First of all, official requests are sent to employees of the Pension Fund. After this, you can see whether contributions to this body are paid or not. If there are no contributions for some time, it means that the citizen’s employment is definitely fictitious.

Another option is to contact the organization itself to provide the following documents:

employment contract;
staffing table.

They make it easy to look at the position and the salary received. The salary should not be less than the minimum wage for a particular region.

A pay slip also helps to understand whether the work was actually performed. Typically such requests are sent to bailiffs. If they refuse, then you can send the demands to management or already draw up a statement of claim.

Legal consequences of a fictitious contract for an employee.

An employee must be very careful and responsible in applying for a job.

This has many consequences, such as:

Employee length of service;
His future pension;
Possibility to take out loans;
The opportunity to receive labor guarantees, and so on.

Natalia

Labor expert

Having learned that the employment contract concluded with him is fictitious, an employee can demand from his management to formalize it in the proper manner, and if the employer refuses to do this voluntarily, he can go to court.

Fictitious employment: examples from judicial practice

There are certain recommendations that have been identified over the past few years of judicial practice.

The main thing is to conduct checks immediately after receiving confirmatory information that an offense has been committed. You will need to ask to see not only documents, but also to conduct a survey among employees about how many people actually work. This scheme is often applied to various municipalities.

Books of orders for personnel in a given case are considered separately. After this, the fact of whether the citizen actually performed any duties is carefully studied. It is good if official contracts concluded between the parties are checked.

Employees of inspection bodies interview subordinates at enterprises, who can be divided into two groups:

The employed persons themselves, who know about the state of things or not.
Other subordinates who confirm or deny the fulfillment of any duties.
Those who officially knew that the manager committed violations.

To be or not to be?

So is it worth using fictitious employment for a job in real life? It's difficult to answer. Everyone decides this for themselves. Before making a final decision, you will have to weigh all the pros and cons of the action. And take into account what exactly is meant - unofficial work with “black” earnings or employment according to documents, but with the actual status of unemployed.

In the first case, it is recommended to refrain from work. This form of employment is acceptable in extreme situations when money is urgently needed. For permanent work, a law-abiding citizen must be officially registered as an employee of the company.

If we talk specifically about fictitious employment, it will play a positive role for the length of service. And this form of work is preferable among those who know their employer well. This is also a violation of current legislation, but it is difficult to prove in practice. Taxes, deductions and other accounting features will apply. The state is in the black, the employee is in an advantageous position. And if the employer agreed to give a person a job on paper, but allowed him to actually sit back, then you should not refuse such an offer. You just don’t need to use it on an ongoing basis either.

Unlike unofficial work, fictitious employment allows you to go to work at any time. The main thing is to warn the employer about this. And then the fiction will become real in every sense.

Is it possible to recover wages?

Wages overpaid to a citizen cannot be recovered, according to the current law. There are exceptions under certain circumstances:

unlawful actions of the employee himself, as established by the court;
the court found that the citizen was guilty of idle time and other types of failure to fulfill obligations;
the appearance of counting errors in documents.

It will be possible to demand wages from fired fictitious employees only if the employment contract is cancelled. Then receiving money will be considered unjust enrichment.

Registration of young specialists for work experience

Employers often do not hire employees if they do not have work experience. Many people benefit from fictitious employment. You will have to pay for this, just like for an entry in the work book. The taxes paid by the company also fall on the shoulders of the new fictitious employee. Most of these schemes are carried out through friends or acquaintances. As a result, the citizen receives not only seniority, but also the opportunity to receive benefits through the state, and has a large amount of time that can be spent on family, entertainment or unofficial employment.

However, there is another option for obtaining experience - registering a person as an individual entrepreneur. In this case, the length of service will also apply.

Fictitious employee responsibility

Today, the practice in which certain categories of citizens use fictitious employment to achieve personal gain is due to the need for these individuals to obtain work only according to the documentation and at the same time not appear at work and not perform their duties in accordance with their position. These categories include:

One of the parents, who left their children to be raised by the second parent and, in connection with this, is obliged to pay alimony for their maintenance, has undeclared income and does not want to pay the full amount, gets a fictitious job with low wages;
Citizens who want to get a loan from a bank, but do not have a work book or a certificate of earnings, which must be provided to the financial institution upon request;
Persons seeking to illegally increase their work experience in this way;
Other citizens who, for one reason or another, need to remain in employed status on a short-term or long-term basis.

Methods of fictitious employment

There are several ways to fictitiously obtain a job (both legally and outside the system of current legislation):

A woman gets a job during pregnancy and then goes on maternity leave. In this case, the employment of a pregnant woman will be considered fictitious if the Social Insurance Fund (SIF) reveals that the employer hired a pregnant woman solely for the purpose of receiving budget funds when paying for maternity benefits. Otherwise, if the employer was not aware of the presence of pregnancy, the hiring will be considered legal, since the employer has no right to inquire about the presence of pregnancy. The exception is those categories whose work is closely related to the social sphere (doctors, teachers, lecturers, kindergarten teachers, social workers, employees of government agencies). For these persons, a medical examination before employment is mandatory and regulated by legal norms. Due to this ambiguity, pregnant women can take advantage of it, thereby causing harm to the employer, because, in this case, maternity benefits will be paid directly by the organization. More details about accepting and refusing employment for a pregnant woman are written in a separate article.
One of the parents (often, in the practice of Russian legislation, the father) fictitiously gets a job, receiving a certificate of income and paying alimony to the child left behind, but, at the same time, does not fulfill his work obligations and does not appear at this workplace, and has, for example, a different type of income. Thus, the alimony payer significantly underestimates the level of his actual monthly earnings. Accordingly, with low incomes, the amount of alimony paid is sharply reduced, which is beneficial for this person. This method of fictitious employment will only be possible if the employer is a relative or a well-known person of the fictitious person being employed, since the payment to the employee of all benefits required by law is the responsibility of the manager. There is also an option when such an employee is employed by the head of a state enterprise. In this case, the manager not only does not pay the funds from his own pocket, but can also receive the salary accrued to the employee.
Sometimes the employer himself, who runs a budgetary organization, offers citizens fictitious employment, in which the person will be on the staff, but will not fulfill his official obligations. Some managers use the opportunity of fictitious employment to hire people with disabilities. The benefit of the boss here is obvious - he gains the opportunity to receive the wages accrued to this employee himself. The benefit of an employee hired in this way is also obvious - fictitious employment for work experience, which is later used when applying for a pension.

Such a decision by the employer violates the labor legislation of the Russian Federation and falls under the article “Abuse of official powers, as well as fraud.”

Fictitious employment to obtain a loan, that is, a situation when a person wants to receive a certificate of income. The data indicated in it is considered false, and such actions constitute forgery of documents and presentation of false information, which is strictly prosecuted by law and punishable in accordance with the legal norms of the Russian Federation.

Legal responsibility of the employer for fictitious employment of employees

At the legal level, the essence of fictitious employment of a potential employee is not regulated, therefore such actions are often regarded as fraud by the parties to the labor relationship and can be punished in accordance with the Criminal Code of the Russian Federation.

Thus, for proven fictitious employment, punishment is provided in the form of the return of funds received in such an illegal way in full, as well as a fine (in accordance with Article 159.2 of the Criminal Code of the Russian Federation).

If an act of fraud and theft of public money is recorded through fictitious employment of employees, then, according to the norms established by the Criminal Code of the Russian Federation, the employer will be held criminally liable, up to and including imprisonment (Article 201 of the Criminal Code of the Russian Federation).

Also, this crime can be regarded as a type of falsification of documents, entailing appropriate punishment in accordance with the legislative norms of the Criminal Code of the Russian Federation.

However, in practice, the perpetrators are brought to administrative responsibility. This option is the most common in existing practice.

As for unofficial work, it is punished more harshly. For this, the employer faces:

a fine of up to 50,000 rubles (administrative penalty);
suspension of powers for a period of up to 3 calendar months;
recovery from the employer of all taxes required by law;
a fine in the amount of 20% of unpaid taxes and other amounts due to the state;
forced labor;
imprisonment for a certain period of time;
prohibition on further fulfillment of one’s obligations in one’s position.

The advantages of this type of employment for the employee and the employer

When employing a citizen without a contract, an employer has a number of positive bonuses:

tax minimization. The fact is that most of the taxes paid by the employer to the state treasury are calculated from the wage fund of the employees employed by him. The logical conclusion: the smaller the tax base, the smaller the amount to be paid;
lack of personnel paperwork;
lack of responsibilities and obligations towards an unofficially employed citizen. For example, it is not necessary to ensure labor safety; it is possible not to pay the employee the full amount of the promised fee.

If the first item from the list can somehow justify (from the employer’s point of view) unofficial employment, then the last item is very doubtful and remains entirely on the conscience of the employer.

A citizen who deliberately seeks informal employment also benefits from this:

Please note: If the employer does not want to enter into an employment contract when hiring, the citizen has three options - insist on concluding the contract, quit, or continue working, simultaneously collecting evidence of the employment relationship, so that in the event of a conflict, he has supporting documents on hand. Read more on our website

if the employee has any financial obligations, for example, alimony payments, payments under a writ of execution, etc., he may not transfer these amounts from his unofficial salary;
the opportunity to earn additional income in your free time from your main job;
the opportunity to earn money while retired without losing social benefits;
lack of full financial responsibility of the employee;
the opportunity to receive a larger sum of money than with official employment for performing the same amount of work. A simple example: an employer can spend 1 thousand rubles on installing software. By hiring a programmer unofficially, he will pay him this 1 thousand rubles. When hiring the same employee under a fixed-term employment contract, he will be forced to pay taxes on the allocated thousand, this, according to data for 2021, will be 43.2% (if the employer’s organization is not included in the preferential list of taxpayers). It turns out that from a thousand rubles 432 rubles will be spent on taxes, which means that the employer will be able to pay the programmer only 568 rubles instead of a thousand. In this case, it is beneficial for the employee to do the work without registering for employment.

What threatens an employer for unofficially employing an employee?

An employer hiring a citizen without drawing up an employment or civil contract is fraught with serious troubles, including criminal liability.

Consequences of informal employment for the employer:

bringing to administrative liability (Article 5.27 of the Code of Administrative Offenses (CAO) of the Russian Federation):
suspension of the organization’s activities for up to 90 calendar days;
bringing to tax liability: a fine for non-payment of taxes in the amount of 20% of their amount and payment of hidden taxes (Article 123 of the Tax Code (TC) of the Russian Federation);
bringing to criminal liability under Art. 199.1 of the Criminal Code (CC) of the Russian Federation. This penalty involves:
deprivation of the right to hold certain positions,
forced labor,
arrest.

For an employee employed unofficially, the punishment is more lenient: payment of a fine in the amount of 20% of the unpaid amount of taxes (Article 122 of the Tax Code of the Russian Federation). Other negative consequences of unofficial employment are worth considering in more detail:

lack of social guarantees:
provision of study leave to an employee under the Labor Code of the Russian Federation
provision of paid annual leave;
lack of work experience;
lack of pension savings;
a real possibility of not receiving wages from an unscrupulous employer.

Do an unofficially employed citizen have any rights? The lawyer will tell you in the video below:

Fictitious employment is fundamentally different from the previously discussed informal one. The difference is that a fictitious job placement does not involve the very fact of performing any work activity.

It turns out that the employee is officially employed with all the necessary documents completed, the employer regularly deducts taxes from his salary, and the citizen himself does not appear at the workplace.

This option, based on the provisions of the Labor Code of the Russian Federation, is also illegal.

Fictitious employment may be beneficial to the following citizens:

women with a small child under 1.5 years old to receive higher financial benefits;
citizens wishing to illegally obtain work experience;
senior hired employees who have the right to hire workers to implement a fraudulent scheme to obtain money by appropriating the earnings of fictitiously hired citizens.

For fictitious employment, punishment is provided in the form of payment of illegally obtained money and a fine (Article 159.2 of the Criminal Code of the Russian Federation). Fraud, according to the Criminal Code of the Russian Federation, is punished even more severely: possible imprisonment (Article 201 of the Criminal Code of the Russian Federation).

It is worth noting that the above illegal fictitious employment schemes are known to all supervisory authorities, so such violations are detected quite quickly.

Fictitious employment: how violators are punished

Source: https://abn62.ru/fiktivnyj-rabotnik-otvetstvennost/

Employment for child support

According to the law of the Russian Federation in accordance with Art. 81 child support is withheld as a share of income. For one child, a man must pay 25% of the salary. If the alimony provider is not settled, this does not exempt him from paying; the person is charged with debt . To prevent this, many take fictitious jobs with minimum wage. If a man wants to hide his income, the legal way to do this is to join the labor exchange. Alimony will be deducted from benefits, and these are very small amounts.

How can a new boss understand the situation?

At first glance, it would be correct to clear the staff of employees who were hired fictitiously. The main thing is to find out about the design methods in advance.

To do this, it is important to find answers to several questions:

What contracts and documents does the organization have to confirm this fact?
Was a time sheet issued for the employee? How were wages paid, if any?
Did the citizen perform work duties, and is there any evidence left to support this event?

In such a situation, there is additional evidence that the citizen did not begin his duties after signing the agreement:

memos from the head of a specific department;
act of absence of a subordinate from the workplace.

After identifying all the circumstances, the manager himself can issue an Order, which confirms several facts at once:

Recognition of invalid entry in the work book.
Cancellation of the employment order.
Cancellation of an employment contract.

The documents become the reason to issue a further order. The employee’s personal file is destroyed, since any basis for storing data on a specific citizen disappears. But it’s better to issue a work book.

How to punish an employer for unofficial employment?

Quite often there are situations when a person works for a person without formalizing the employment relationship. This type of work carries many risks.

If the employer turns out to be dishonest, it will be difficult to prove the existence of an employment relationship in court.

The employee loses the length of service that is necessary to pay pension accruals in the future, as well as sick leave if the employee himself or his family members, for example, children, fall ill. Payroll is not carried out in this capacity through the accounting department.

What does unofficial employment pose to an employer?

By law, the employer must register a person within 3 days from the date of admission of the latter to the place of work. Chapter 11 of the Labor Code of the Russian Federation regulates the procedure for concluding an employment contract between an employee and an applicant. The company or individual entrepreneur is responsible for violating the hiring rules. In particular:

Penalties for the enterprise - 50,000 rubles.
Suspension of the enterprise for an indefinite period.
Payment of 20% of the total final amount of funds transferred to the budget.
Imprisonment of the head of the enterprise for up to 24 months.

The employee takes a risk working for such an employer. Firstly, he may not be granted leave. Secondly, don't pay for it. Thirdly, do not provide social guarantees. Fourthly, the employee may not take sick leave.

How to punish an employer (fines for the employer)

The employer has his own reasons for hiring an employee without signing official papers with him. For example, it could be the following:

saving on taxes;
individual regulation of wages downwards without explaining the reasons for this phenomenon;
hiring and dismissal of employees at the initiative of the employer at any time;
lack of personnel papers.

If facts of unofficial employment are revealed, the company faces administrative, criminal, and tax liability.

A person should not agree to work without signing an employment contract with him. You may find yourself in a difficult situation when his work will not be paid. Proving the fact of employment will not be easy; this is only possible through the court.

If the situation is not in favor of unofficial workers, it makes sense to file a complaint against the unscrupulous employer with the competent authorities. You can file a complaint with the following authorities:

The prosecutor's office, which is located at the place of residence of the applicant or place of work of the company (organization), individual entrepreneur.
To the State Labor Inspectorate.
To the Tax Inspectorate at the location of the employing company.
To a judicial authority with a statement of claim against the employer.

The prosecutor's office is a supervisory authority. It monitors compliance with law and order throughout the Russian Federation. You can complain about the employer to this body, which issues an order to eliminate violations of the Labor Code of the Russian Federation.

The State Labor Inspectorate has similar powers. In addition, this particular government body has specifics: it protects the rights of those who work in companies, enterprises, and individual entrepreneurs, and whose rights are grossly violated.

Since the citizen’s employment was unofficial, the applicant must take care of providing the competent authorities with evidence of the person’s work for a legal entity or entrepreneur.

In addition, it is necessary to prove that wages are not paid.

Evidence of this process may include witness statements, recordings of telephone conversations, newspaper advertisements, and advertising leaflets.

Tax inspectors must identify black wages. Having discovered that there are violations of labor legislation in an organization, the tax authority has the right to impose sanctions on the employer. Punishment is provided for in Articles 122 and 123 of the Tax Code of the Russian Federation.

An employer who ignores the duties of a tax representative to pay taxes is held accountable.

In addition, a fine is imposed for the fact that an employer, having an unofficially employed employee, ignores the payment of insurance premiums.

Based on this, after receiving a complaint from an employee and conducting an audit, tax authorities are able to bring an unscrupulous person to administrative responsibility. This is payment of a fine.

If contacting the authorities does not bring a positive result, a person can file a claim and take it to court.

In this situation, it is necessary to prepare papers and witness evidence that would confirm the fact of working for a specific person.

When seeking help from the judicial authorities, the applicant can recover wages from the employer, as well as legal costs. Lawyer's fees are also included in this list. All expenses will be borne by the employer. In addition to the recovery of wages, under Article 236 of the Labor Code of the Russian Federation, you can also demand payment of interest for delayed wages.

Interest is calculated as 1/300 of the refinancing rate established by the Central Bank of Russia on the unpaid amount for each day of delay.

Tax liability

Non-payment of taxes and fees to the budget is regulated by Articles 122 and 123 of the Tax Code of the Russian Federation. There is responsibility for this. The employer is the tax agent of each of the employees who come to work for him. It is the employer's responsibility to withhold personal income tax from employees' wages.

Automatically, unofficial employment violates the provisions of Article 123 of the Tax Code of the Russian Federation. The employer is liable to pay a fine of 20% of the arrears. But paying a fine will not relieve an unscrupulous company from transferring taxes and penalties to the budget.

The latter is 1/300 of the refinancing rate established by the regulator.

Important: in a number of situations, the employee himself bears responsibility for informal employment. He may be required to pay tax and penalties.

Holding the employer liable for non-payment of insurance premiums is due to the fact that from 2021 the competence of the tax authorities began to include the administration of funds. In particular, the Compulsory Medical Insurance Fund, the Pension Fund, the Social Insurance Fund.

Therefore, it is the tax authorities who hold unscrupulous persons accountable under Article 122, Part 3 of the Tax Code of the Russian Federation. This article deals with non-payment of insurance premiums committed intentionally.

For insurance premiums, the company and individual entrepreneurs pay a fine amounting to 40% of the arrears.

Criminal liability

Liability under the Criminal Code is provided for in Article 199. We are talking about facts when the tax agent does not transfer mandatory payments withheld from employees’ wages.

Officials bear the punishment. In particular, this is a manager, chief accountant, entrepreneur. In Article 199 Part 1, the criminal law provides for certain conditions for the application of punishment.

Conditions:

the presence of an unscrupulous employer with an individual interest in the offense: property and other benefits that the individual entrepreneur or company is counting on;
a large amount of tax arrears - more than 5 million rubles for 3 financial years, subject to the conditions that the arrears are higher than ¼ of the mandatory payments that need to be transferred, or the arrears are more than 15 million rubles.

If these conditions are met, the offender will be punished with a fine of 100 to 300,000 rubles. An alternative to this is a recovery in the amount of the offender's income that he received over the previous 24 months. Other punishment options are forced labor for 24 months, arrest for 6 months.

If the amount of arrears on a large scale, which is more than 15 million rubles for the three previous reporting years, exceeds 15% of the amount of all mandatory payments or 45 million rubles, the penalty is expressed in penalties from 200 to 500,000 rubles. Or imprisonment for up to six years.

Forced labor is also used for a fairly long period: up to 5 years. The employer may mitigate or avoid severe penalties. But for this there must be certain conditions. For example, if he violated the provisions of the law for the first time, paid arrears with penalties, and also paid the fines that are specified in the articles of the Tax Code of the Russian Federation.

As for non-payment of insurance premiums, the articles of the Criminal Code of the Russian Federation are not applicable in this case.

Other types of liability

If an employer does not want to pay wages to employees, coming up with illegal informal employment schemes, this may result in lawsuits filed by citizens. According to Article 67.

1 of the Labor Code of the Russian Federation, they have the right to count on receiving money. Other liability is provided for in Art. 17 Federal Law-27 of 1996.

The law establishes a fine of 500 rubles per individual entrepreneur for each employee with whom an employment contract has not been signed, and therefore not officially employed.

Probation as a cover

In practice, unscrupulous employers suggest not registering during the probationary period. The law states that the employer has the right to establish a test when hiring. This is stated in Article 70 of the Labor Code of the Russian Federation. If an employer offers to work on a probationary period without a contract, this is illegal.

The person himself decides whether to agree to such conditions or not to do so. You can, of course, accept this condition, work for a company without a contract, and then take a closer look and listen to what the company’s employees say: is the employer cheating with wages? But there is no guarantee that the applicant will be allowed to work after the probationary period.

And it will be very difficult to prove that the employer was finding fault.

There are many reasons why an employer does this. For example, this could be the so-called cost optimization.

Sick leave is not paid, vacation is not accrued, and compensation will not be paid if the employee leaves his place of work.

That is, there is a complete lack of social guarantees, the employer is saving on employees and, in addition, a violation of the law.

There is another option. For example, these are the conditions of the company's installations internally. For example, staff turnover. Workers move away from such attitudes on their own and gradually find normal working conditions. And the company is recruiting new staff, also without official employment.

IMPORTANT: A probationary period, as a term stated in the law, is possible only if an employment contract is signed with the employer. This means that a person can be tested for professional suitability only if he has official employment. This means that in case of unofficial hiring, there can be no talk of testing the employee.

In addition, the probationary period is included in the length of service. If the employee does not have an employment contract, there is no probationary clause.

Benefits and disadvantages for workers from informal employment

Minuses:

lack of vacation;
lack of sick leave or other social guarantees;
dismissal at any time.

Benefit:

for pensioners - they will receive a pension that is larger in size compared to officially employed pensioners;
no responsibilities for starting a job or leaving it: no need to fill out any paperwork or wait for payment;
in some cases - receiving benefits and benefits.

Employer benefit

savings on taxes, fees, contributions;
personal regulation of wages in the direction of lowering them without explaining the reasons for this phenomenon;
hiring and dismissal of employees at the initiative of the employer at any time;
personnel turnover, the absence of long-term working team members so that they do not claim the right to official employment;
lack of personnel records.

In order to prevent the development of unforeseen situations that could have a negative impact on business, it is better for entrepreneurs to comply with the law.

Igor Biteikin, managing partner of Law Firm “Biteikin and Partners”

Source: https://zen.yandex.ru/media/legal/kak-nakazat-rabotodatelia-za-neoficialnoe-trudoustroistvo-5bcca3109a61e000aa8e783c

Fictitious intermediaries

The Federal Tax Service is looking for fictitious intermediary agreements

and "Jafar" entered into a commission agreement. Its terms were so general that Aladdin could make both sales and purchase transactions. The range of goods with which “Jafar” instructed “Aladdin” to work was also not limited: “Aladdin” could sell and buy absolutely any carpets, silks and spices. Moreover, the commission agreement was the only document that formalized the mediation operations. “Jafar” did not draw up any tasks or instructions within the framework of the contract and did not transfer them to the commission agent, and “Aladdin” was in no hurry to transfer to “Jafar” the money from sales indicated in the reports.

After concluding the commission agreement, “Aladdin” continued to do what he had done before - purchasing goods from his previous suppliers and selling them at his bazaar. At the same time, “Aladdin” did not separate goods into its own and commission, but sold them together.

The tax inspector conducted an investigation. It turned out that the mediation agreement between “Aladdin” and “Jafar” was fictitious. The companies concluded it so that Aladdin retained the right to use the simplified tax system.

The Supreme Court saw here a business splitting scheme: the company reduces taxes using a commission agreement. He declared the contract invalid and ordered that all proceeds from “commission” sales be included in the income of the commission agent. As a result, “Aladdin” lost the right to the simplified tax system and had to pay additional taxes (Determination of the Supreme Court of the Russian Federation of July 22, 2019 No. 304-ES19-10461 in case No. A67-6778/2017).

Not only companies that evade paying taxes are at risk, but also respectable companies. An agreement may be recognized as fictitious due to ordinary legal illiteracy and an error in choosing the type of agreement.

To reduce the risk of additional charges, conscientious taxpayers should involve lawyers when concluding new contracts, as well as conduct an examination of existing contracts to check whether the chosen contractual model complies with the rules of the Civil Code of the Russian Federation and the real relationship with the counterparty.

If inconsistencies are discovered, it is better to re-issue contracts and recalculate taxes yourself - this will cost the company less than additional charges during the audit.

Concept of fiction

What is fictitious employment? This is usually what informal labor is called. That is, without registration according to the Labor Code of the Russian Federation.

In this case, the employee is not documented as a human resource, he does not receive a salary according to accounting, but actually works. But we will distinguish between fictitious employment and unofficial labor. The concept described is just unofficial work.

Fictitious labor can be classified as a situation where a person does not actually work for a company, but is documented as an employee. Typically, this form of employment is common between close relatives or acquaintances.

Fictitious price

The Federal Tax Service monitors suspiciously low prices in contracts

Any counterparties are at risk, not just interdependent ones: the Federal Tax Service will assess additional tax if it finds that the parties deliberately underestimated the price of the transaction (clause 1, clause 2, article 54.1 of the Tax Code of the Russian Federation).

Sergei Lopakhin decided to buy a cherry orchard from Polina Ranevskaya. In addition to the beautiful cherry trees, there was an unfinished building on the site, only 6% complete. For Lopakhin, this unfinished building was of no value; he only wanted to buy a garden, so in the purchase and sale agreement, Ranevskaya indicated that the land was worth 13.99 million rubles, and the unfinished house - only 10 thousand rubles. In fact, Ranevskaya invested 14 million rubles in the construction of this house. In order not to pay VAT on the transaction, Ranevskaya underestimated the cost of the house and included it in the price of the cherry orchard, because the sale of land is not subject to this tax (clause 6, clause 2, article 146 of the Tax Code of the Russian Federation).

During a tax audit, the scheme that Ranevskaya came up with was discovered. It turned out that the land plot was deliberately sold at a price below the book value, and this led to underpayment of VAT. The fact that Lopakhin did not need the house itself, and the tax authorities could not prove the interdependence of Ranevskaya and Lopakhin or the “gray” calculations between them, did not affect the judges’ decision. As a result, Ranevskaya still had to pay VAT calculated on the full cost of the unfinished house (Determination of the Supreme Court of the Russian Federation dated June 4, 2019 No. 309-ES19-5047 in case No. A60-16106/2018).

How to reduce risks

Even the absence of interdependence will not protect against additional charges if the price of the transaction is so lower than the market price that it can be considered fictitious. If an agreement with a fictitious price is concluded by interdependent persons, then the Federal Tax Service may assess additional taxes on both parties to the transaction (Determination of the Supreme Court of the Russian Federation dated 01.08.2019 No. 305-ES19-11779 in case No. A41-45828/2017).

Almost any price manipulation is very dangerous for taxpayers. There is only one way to reduce risks - to have official confirmation that the transaction price, based on all its conditions, is truly market price. This can be confirmed by the conclusions of appraisers and any information from open sources: newspapers, ad sites.

Alexey Krainev, tax lawyer