According to current legislation, unofficial work accompanied by receiving wages in an envelope is considered a serious offense for which not only the employer, but also the employee can be held liable.
In this article we will answer the following questions: What is a salary in an envelope and why does receiving it contradict the norms of the Labor Code? What responsibility for this labor violation will the employer bear, and what responsibility will the employee bear? Where to complain about “black” wages?
Concept of gray salary
It represents the use of one of the illegal methods of paying income to individuals, which includes the issuance of:
· The employee’s “white” salary, recorded in reporting to the tax office, and from which contributions to the state are deducted. As a rule, its size is the minimum established salary in the country;
· The remaining amount is paid “in an envelope”. No tax is paid on it.
Thus, this scheme represents an average way of issuing “black” and “white” salaries. For the employer, this is a big saving on tax contributions.
The documentation reflects this as if the company only employs low-paid employees. In fact, this is just one of the tax evasion schemes.
It should be noted that by agreeing to such payments, the employee is at risk, since their size, payment procedure and payment period are not specified in the employment contract.
Prosecutor's office
The prosecutor's office exercises general supervision over the observance of citizens' rights, and labor rights are no exception. You can complain about the payment of black wages by writing a written appeal or going to an appointment with the prosecutor or his assistant. You must contact the prosecutor's office of the district where the organization is located. The content of the complaint must be the same as the complaint to the labor inspectorate. Documents confirming the presence of violations should be attached to the application to the prosecutor's office.
The most effective will be a collective complaint that contains the signatures of several employees of the employing organization. Based on the results of the submitted application, an audit will be carried out. If the facts set out in it are established, an order will be issued to the employer to eliminate violations of the law.
How does the Federal Tax Service calculate such payers?
Fiscal authorities are not staffed by robots, but by ordinary citizens who are familiar with the labor market, represent average wages in a particular field, and from time to time visit job search sites. If one amount is indicated on the notice board ( Avito, Zarplata.ru, Job or others ), and the company submits reporting documents to the Tax Office for a different amount, then this difference will then raise questions from tax officers.
After dismissal, an unjustifiably disadvantaged employee himself may well go to the Federal Tax Service and write a statement denouncing the employer about the payment of a gray salary in his office.
When monitoring social networks and review sites, the taxman will find a lot of indignation from citizens about companies where they pay wages in an envelope. There would be a desire and time to do this. All the information is on the surface, just open and read, schedule checks.
Learn important things: How to prove illegal wages
The tax office has the right to call for a conversation people who write reviews of a negligent company, to find out what is happening in the company and this will be another reason to order an audit.
It is not difficult to identify the payer of gray wages; it takes time, the desire of the tax officer to do this and requests from the outside (complaints, appeals, calls, denunciations). The other side of the coin is that many workers benefit from receiving unaccounted wages. The problem of small business and the conditions that government agencies have created for it.
Consequences of illegal earnings
A salary received in an envelope is fraught with the following unpleasant consequences for an employee:
- No social security . So, if an employee becomes seriously ill or decides to quit, he will not receive any social benefits;
- If the employer wants to reduce or stop paying wages altogether, the employee will have no chance to prove this by contacting the Labor Inspectorate;
- While working, the employee will not accrue labor pay and future pension;
- The likelihood of administrative (fines) and criminal (imprisonment) liability from the tax service for tax evasion;
- Lack of protection of labor rights , which are usually prescribed in the employment contract;
Every year, the Government of the Russian Federation approves increasingly severe penalties for tax evasion and illegal labor activity.
Advantages and disadvantages
When using such a settlement scheme between employer and employee, there are advantages and disadvantages, and before deciding on such cooperation, it is worth weighing the pros and cons.
A positive aspect for an employed person is receiving the highest income, from which the amount of tax is not deducted.
The disadvantages include:
· If labor disputes arise, employees of the organization will be able to receive only the smallest compensation;
· Compensation for sick leave, assistance upon dismissal, vacation pay will be as small as possible;
· No contributions are made to the Pension Fund of the Russian Federation, which participate in the formation of a future pension; the employer does not pay wages in full;
· When applying for a loan, a certificate of income officially confirmed by tax reporting is provided.
There is also no opportunity to receive a tax deduction, since you cannot take a 2-NDFL certificate and the tax is not paid.
A significant negative point for the employer is the risk of prosecution and the imposition of penalties due to non-compliance with labor laws.
What is considered a salary in an envelope?
Salary in an envelope (or “black” salary) is a monthly payment to an employee for performing a certain list of job duties, which is paid to him without deductions of income tax (comprising thirteen percent of the salary) and pension contributions.
As is correct, this method of issuing salaries is practiced in organizations where they work without official employment.
According to the current norms of the Labor Code, working without concluding an employment contract is considered a labor violation and therefore must be accompanied by the prosecution of all participants in the illegal transaction. And unofficial employment, accompanied by the payment of wages in an envelope without deductions to state funds, is considered a double offense.
In practice, many workers, realizing the illegality of the process, still accept such working conditions . And the main reason for this is that due to the lack of insurance contributions and income tax withholding, the final monthly salary is significantly higher than what they would have had if the employer had contributed a certain portion of their salary to government funds every month.
However, everything has a downside. By receiving a salary in an envelope, an employee risks being left without it at any time. After all, without any documentary evidence of earnings, the employee, if something happens, will not be able to complain about the organization to the relevant regulatory authorities.
Receiving a salary in an envelope without concluding an employment contract is considered a legal action only during a probationary period, after which mandatory official employment follows.
Bottom line: if an employee works on a non-contractual basis, receiving “black” wages, without entry in the work book and without contributions to insurance funds, then these actions are considered an offense and are fraught with liability for both the employer and the employee himself.
Read about the consequences of unofficial work and “black” wages for an employee in the next section.
Where to complain
If a conflict situation arises with the management of the company, it will be very difficult to achieve payment in the event of dismissal based on the actual salary paid. This can only be achieved through the courts.
Of course, you can try to solve the problem peacefully. It will be necessary to send the employer a written notice of failure to fulfill obligations and possible recourse to court. But, as a rule, the organization’s administration is convinced that the employee is unlikely to resort to legal proceedings. And not everyone can prove the guilt of management.
But at the same time, it remains possible to contact the Federal Tax Service or the labor inspectorate. They pay very close attention to information about tax evasion and violation of employee rights.
But this does not always bring the desired result.
it is quite possible to prove the payment of “gray” wages in court without involving a lawyer. This will require the presentation of substantial evidence during the process.
It can be:
· Certificates in form 2-NDFL, issued earlier, the information in which differs from that indicated in the salary statement:
· Testimony of witnesses;
· Video shooting or photography;
· Any documentation confirming the funds actually issued.
Existing judicial practice confirms that to prove the employer’s guilt when posting vacancies where a higher income is indicated than shown in the statement, or a discrepancy between the position and remuneration.
Learn important things: How to become self-employed - Instructions
In this case, both the employee and the tax inspectorate can make claims. To initiate an inspection, the employee will need to file a complaint with the labor inspectorate. He can also attach a request for non-disclosure of personal data to a third party and then the company management will not know on whose initiative the verification activities are being carried out.
You can contact the regional office of the Labor Inspectorate of the locality by calling or making an appointment. You can also leave a complaint on the Rostrud service portal.
ATTENTION! Before submitting an application, you need to fully compensate the resulting personal income tax debt, because the liability in this case will affect not only the employer, but also the employee.
In addition, you can file a complaint with the tax authorities or the prosecutor's office. The procedure for contacting all authorities is identical. You will need to send a written appeal, attaching evidence on this fact. The letter can be sent by post, submitted in person, or the application can be made by telephone.
IMPORTANT! The response is sent to the applicant within 30 days from the date of registration of the statement of infringement of rights. But first, a check must be carried out on the stated facts and a conclusion must be prepared.
Where can I complain about salaries in envelopes?
As a rule, a complaint is filed with one of the regulatory authorities in cases where the employer stops paying wages altogether.
So, you can complain about “black” wages to one of the following authorities:
- Labour Inspectorate;
- Law enforcement agencies (prosecutor's office);
Read how to complain to the prosecutor's office here.
- Territorial Tax Service;
to complain to the tax authority : by submitting a written complaint in person to the territorial unit, by sending a complaint by email, or by calling the hotline.
Sample complaint
The application submitted to the relevant organization must contain the following information:
· Name of the regulatory authority;
· Full name and address of the person applying;
· Contact details;
· Name of the document – statement and its subject matter;
· Circumstances of the case: in which company, in what position the applicant worked, period of employment;
· Request for the issuance of a mandatory order to carry out the correct calculation of compensation. It must be accompanied by references to legal norms.
How to file a complaint
The document can be drawn up in any form. But in order for it to be accepted for consideration by government agencies, a number of requirements should be taken into account:
- Indicate information about the addressee and sender in the header.
- Briefly state in the text the reasons for filing the appeal. The full name of the organization, the offenses, their dates or duration and other information important to the case should be indicated.
- Use evidence to support the stated facts (preferably).
- Specify your requirements.
- Insert the date of compilation and signature with a transcript.
The complaint should be sent to the territorial office of the selected department in one of the following ways:
- send by Russian Post (it is advisable to use the service of sending a registered letter with notification and a list of attachments);
- bring it yourself and register it in the office or give it to management at a personal reception;
- use the electronic reception on the official website;
- communicate orally by phone.
Responsibility of employer and employee
In every company, a significant share of expenses is the amount of salaries and social benefits. Therefore, in order to reduce the cost of maintaining employees, the organization’s management goes to conceal a certain part of the payroll from taxation. Personal income tax must be withheld from the officially established amount of employee income; this responsibility is assigned to the employer.
rate is 13% , but insurance payments must also be paid to extra-budgetary funds. Taken together, these amounts grow to impressive amounts. These requirements force the administration of legal entities to pay for the work performed in “envelopes”. It should be noted that the practice of reimbursing gray earnings has become widespread. Employers have developed many ways to streamline the tax evasion process.
The Federal Tax Service is trying to correct this situation, which, if certain signs are present , may become interested in the company when:
· The monthly income of the enterprise's employees is much lower than the prevailing labor market in the region and the subsistence level in the subject of the state;
· The salary level of the head of the enterprise in the statement is lower than the earnings of ordinary employees;
· Receipt of anonymous information about gray payments;
· In the new place, the employed person has less income than in the previous one, that is, the change of job took place on unfavorable conditions for him;
· To confirm income, the employee submits to the bank a certificate of income with an amount exceeding that indicated in the report.
Such cooperation between the parties to labor relations entails liability.
Expert opinion
Andrey Tychkov, labor lawyer
Amendments are being prepared to the Labor Code of the Russian Federation and the Federal Law “On Enforcement Proceedings”, which give inspectors of the State Labor Inspectorate the right to make independent decisions on unpaid debts on wages and other funds that are due to an employee within the framework of labor relations. The bailiff service is required to accept the orders of the State Tax Inspectorate as a court decision and respond to it by collecting debts from the employer.
Collection of “black” wages
Collecting illegal wages in an envelope is quite difficult and is only possible in court . To win in court, you need to prove two important points:
- The fact that the salary was paid in an envelope at all;
- The size of the “black” salary;
The procedure for filing a claim for recovery of wages in an envelope , as well as a list of evidence that can be accepted in court, is prescribed in Article 55 of the Civil Procedure Code of the Russian Federation.
Thus, the following may serve as evidence of illegal activities in the employer’s organization:
- Information about the vacancy (printouts from job search sites, which show basic information about the vacancy, as well as the promised salary level);
All printouts must be notarized.
- Accounting statements that indicate the amount of monthly earnings;
- Statistics data;
- Testimony of other employees;
In this case, the employee must prove that he actually saw how the salary was transferred to the employee in an envelope.
- Issued salary certificates. It is not uncommon for an employer to intentionally hide the lack of official employment from an employee;
- Audio and video materials indicating the transfer of “black” wages. At the same time, the employee himself should take part in the conversation on the recording. Otherwise, the conversation will be considered “wiretapping”;
- Other materials indicating the payment of salaries in an envelope;
It is better to look for evidence for the court before the moment of dismissal, since after that it is much more difficult to obtain the necessary certificates and statements.
Responsibility for the employer
Based on the provisions of Art. 226 of the Tax Code of the Russian Federation, the agent withholds tax from the taxpayer’s actual income.
Based on Article 122 of the Tax Code of the Russian Federation, non-payment or incomplete payment of contribution amounts due to an understatement of the tax base or incorrect assessment of fees, or other illegal transactions provides for the imposition of penalties of up to 20% of the unpaid contribution amount. But if such offenses are committed intentionally, then sanctions of 40% are provided.
The consequences of being held accountable may include:
· Joint on-site inspection activities of departments of internal affairs, the prosecutor's office, the Federal Tax Service, the Social Insurance Fund and others, during which a total inspection and study of the enterprise's activities will be carried out;
· Accrual of unpaid tax;
· Calculation of penalties and interest for intentional commission of criminal acts.
By the way, this will affect not only the administration of the enterprise, but also its chief accountant and other employees involved in the preparation of documentation. In this case, they will be recognized as accomplices and attracted as an organized group of people.
Provisions of Art. 199 of the Criminal Code of the Russian Federation provides for a fine of up to 300 thousand rubles , forced labor and the inability to engage in specific activities, as well as imprisonment. Such actions, committed by an organized group by prior conspiracy, or when they caused losses on a particularly large scale, are subject to fines in the amount of up to 500 thousand rubles , as well as the performance of compulsory labor or imprisonment.
Consequences for the employee
When filing a complaint with the supervisory authorities, it should be taken into account that the employee has an obligation to pay personal income tax on all black income (Letter of the Federal Tax Service of the Russian Federation dated December 2, 2009 No. 3-5-04/1774). In a normal situation, its calculation and payment falls on the shoulders of the employer and he will be held accountable for failure to fulfill this obligation. But the employee ultimately received income, therefore, he is obliged to file a 3-NDFL declaration on it and pay tax for the past period. The first must be done before April 30 of the next year, the second - before July 15. Otherwise, there are grounds for prosecution for undeclared income (Article 119 of the Tax Code of the Russian Federation): 5% of the amount not paid on time for each month of delay (min. - 1000 rubles, max. - 30% of the debt amount). The exception is cases where employment occurred in the current year: the tax period has not yet ended and there are no grounds for prosecution yet.
Video: Is it possible to return the “gray” salary
How to prove illegal wages if the case goes to court
Along with the method described above, there are other, less exotic ways to prove a gray salary. To be fair, we note that it is often simply impossible to prove the existence of an employment relationship between an employee and an employer in the absence of documentation .
The employer, as a rule, still has the opportunity to deny in court any involvement of the employee in the enterprise. Since it is difficult to prove unofficial wages after non-payments begin, evidence collected before the critical period of delay or refusal to pay wages works best .
These include copies of pay slips, albeit unofficial ones, documents from the company’s internal circulation, which include the name and signature of the employee and, one way or another, mention the unofficial salary. Collected in advance, they can serve well in the event of conflicts with the employer and help ensure that the payment of gray wages becomes a reality.
If such documents cannot be found and presented to the court, then two options remain. The first and rather unpromising one is to contact the company’s accounting department with a request to provide documents that are somehow related to you and prove that you have received wages. The second, which often helps in practice, is to find witnesses who are ready to confirm your labor involvement in the activities of the enterprise.
If such people are found, the chances of a court decision in your favor increase significantly.
And, returning to recording evidence using a voice recorder of conversations with management or an accountant, it is worth noting that such effective and compelling arguments should be collected before the conflict with the employer becomes acute. In principle, this also applies to all other methods of collecting evidence of “black” wages, since when an employee displays a tough and decisive position, management often simply prohibits other employees from communicating with him as “unreliable.”
Considering the issue of the legality of collecting information by secretly recording personal conversations with an employer, we can conclude that such an act does not entail any legal consequences for you . But it should be remembered that this applies specifically to personal communication and the installation of listening or intercepting devices is unacceptable - at best, the court will not accept evidence collected by this method.
Responsibility
What is the employer's responsibility in 2021 for the fact that wages are paid to workers without being reflected in accounting?
It must be said that both parties to the employment contract will have to answer. Only everyone has their own punishment.
For employee
The employee will also have to answer to the tax inspectorate for non-payment of personal income tax on all types of wages.
And although, by law, taxes must be withheld and transferred to funds by the employer, the main taxpayer is the citizen who received the income. It is he who, by law, must make a contribution to the budget from every ruble earned.
And if the earnings amounted to a large amount, from which personal income tax was not collected and paid, then the worker may even be convicted.
Payments to the Pension Fund
Since no contributions will be made to the Pension Fund, the employee will not accumulate funds for an old-age pension.
The length of service with the employer will also not be included, because black wages are not recorded anywhere in the documents, which means it will be impossible to confirm their accrual.
Payment of maternity and child care benefits
It will be difficult for the woman who decides to become a mother while working for menial wages.
She will not be able to receive child care insurance benefits that match her actual earnings.
After all, contributions from it were not deducted to the social insurance fund during her work.
Sick leave
When paying for labor in an envelope, you will have to forget about compensation for sick leave. The Social Insurance Fund does not pay money for the period of illness to those who did not make contributions on time.
In this case, you need to know that an employee can be punished only if he had a deliberate conspiracy that funds would not be withheld from him to pay government obligations.
You cannot be held liable if the worker assumed that money was being taken from him to pay insurance and tax fees, and the employer did not pay the contributions, misleading him.
What threatens the employer?
The current legislation is designed in such a way that it is beneficial for employers not to pay taxes and contributions for their employees.
To understand this, it is enough to study Federal Law No. 212 of July 24, 2009, which states what punishment an employer bears for concealing wages to workers. Of course, it is much more economical to pay a fine in the amount of 20÷40% of unpaid and deliberately hidden amounts for understating the base for calculating insurance premiums than to pay a 100% premium.
The employer's actions as a tax agent are regulated by Art. 123 of the Tax Code of the Russian Federation and Art. 5.27 Code of Administrative Offenses of the Russian Federation. They provide for punishment in the form of a fine.
The amounts of penalties are indicated in the table.
| Violator of the Labor Code of the Russian Federation | Amount of fine, rub. | Note |
| Enterprise official | 1000÷5000 | — |
| Entrepreneur | 1000÷5000 | Without forming a legal entity |
| Entity | 30000÷50000 | — |
Federal Law of July 24, 2009 N 212-FZ
Article 5.27 of the Code of Administrative Offenses of the Russian Federation
How to calculate wage indexation? And in what cases is this necessary? Information is in our article. How to calculate gross salary? Find out here.
How are wages calculated on holidays? Read here.
What to do before you quit
If the “black” or “gray” salary is not paid, but the employee has not yet left, there is a way to put pressure on the employer.
The fact is that payments “in an envelope” are almost always tax fraud. Therefore, in a conversation with your employer, you can hint that you are going to complain to the local tax office. Sometimes this helps to achieve payment in full.
However, it is worth remembering: most likely, after this you will have to leave - it is unlikely that the owner will tolerate an obstinate employee.
In addition, you need to remember: black wages are a double-edged sword.
The employer breaks the law, but the employee also hides his income and does not pay VAT. Usually there are not the amounts for which the tax authorities will open a case - however, there is a risk that the employee will also be held accountable.
This is interesting! Vacation - 28 calendar days or working days: how days are counted
You can also go to court, but not for collection of unpaid amounts, but with a demand to recognize the employment contract as concluded. The fact is that Art.
16 of the Labor Code of the Russian Federation indicates that labor relations arise from the moment when the employee was allowed to perform work - even if the employment contract was not concluded, or was concluded with violations. In this case, the problem will be not so much in proving the fact of work, but in the specific amounts of a gray or black salary.
