How to explain the difference between the average salary for an enterprise and for an industry in order to exclude claims

Question

A request was received from the Federal Tax Service to provide explanations on the DAM for 9 months of 2022 in connection with the identifier KS 2.7 - the difference between the average salary of an enterprise (RUB 31,781) and the average salary for the economic sector OKVED 25.29 for the previous billing period (calendar year) ( 56,550 rubles), which leads to a possible underestimation of the base for calculating SV.

Question: how to correctly draw up explanations and indicate reasons in order to exclude claims from the Federal Tax Service?

Where can I get information on the average salary by industry in the constituent entities of the Russian Federation?

The Federal Tax Service prescribed new control ratios in letters dated October 17, 2019 No. BS-4-11/ [email protected] and No. BS-4-11/ [email protected] . Later, the department again supplemented the control ratios (letter dated January 17, 2020 No. BS-4-11/ [email protected] ). Based on salary reporting, the Federal Tax Service programs will compare the number of employees in the company and the wage fund. Now inspectors monitor that the average salary for the organization as a whole is no less than the industry average for the region. This innovation will reduce the risk of claims if service personnel are paid below the industry average, and managers are paid higher.

Inspectors will continue to compare the salary of each employee with the minimum wage. In order for them not to have any complaints, the salary must be at or above these indicators.

Calculation of contributions and form 6-NDFL. The Federal Tax Service has approved a new form for calculating insurance premiums (order dated September 18, 2019 No. ММВ-7-11/ [email protected] ). Inspectors will compare the average salary for the company as a whole with the average salary for the type of activity. The company must indicate the type of activity code on the title page of the contribution calculation. The amount of average payments per month should be determined not from the beginning of the reporting period, but based on the total amount of payments from the beginning of the year (letter of the Federal Tax Service dated January 17, 2020 No. BS-4-11 / [email protected] ).

Taxpayers will have to report their personal income tax for 2022 a month earlier. The deadline for submitting 2-NDFL certificates and 6-NDFL calculations is March 2. Controllers will compare the industry average salary for the region with the average salary for the tax agent as a whole.

How will controllers act? If the average salary turns out to be less than the industry average or the minimum wage, inspectors will suspect that the company is using an envelope scheme. They will ask for clarification or demand that you submit clarifications on personal income tax and contributions.

The organization must send clarifications or submit clarifications within five working days. If this is not done, inspectors will impose a fine of 5 thousand rubles. (clause 3 of article 88, clause 1 of article 129.1 of the Tax Code). In addition, they can prescribe other control measures and call the employer to the salary commission.

What to write in the explanations. In your explanations, indicate why salaries are lower than the minimum wage or the industry average for the constituent entity of the Russian Federation. The most common explanation is that employees are not working full time. For example, at 0.25 or 0.75 bets.

The employment contract should stipulate a shortened working week, not a shortened working day. In the salary regulations, it is advisable to indicate that the company draws up individual schedules for each employee on a monthly basis. Also, the salary may be lower than the minimum wage, since employees take vacations without pay (Article 128 of the Labor Code).

The average salary is influenced by the specific location of the company and the presence of competitors. Therefore, the average salary for the organization as a whole may differ from the industry average for the region. Often companies agree that they are required to pay wages no lower than the minimum wage. And the size of the industry average salary is not specified in regulations.

Answer

There are no specific instructions on the forms for drawing up explanations to the Federal Tax Service in the official sources of the Ministry of Finance of Russia and the Federal Tax Service of Russia. Each organization has its own characteristics of production activities, therefore, the explanations will be individual. Perhaps the requirement of the Federal Tax Service is a regulatory action that tax authorities are obliged to fulfill by virtue of the provisions on tax control as administrators of insurance premiums. If the salary level in your organization is higher than the level established for the corresponding period in St. Petersburg, then the tax authorities cannot oblige you to increase your salary to the industry level.

In response to the request of the Federal Tax Service, provide the indicators on wages in your organization over several periods and compare them with the main indicators of the FHD in the form of a table. For example, sales revenue, sales costs, wage costs, the share of each indicator in relation to revenue and total costs.

These tables will help you create written explanations. For example, an increase in the share of wages in total production costs is a positive factor. However, at the same time, a decrease in sales revenue or a decrease in its growth rate limits the possible increase in wages due to insufficient resources.

Thus, after conducting a minimal analysis of business activities, you will be able to formulate explanations to the Federal Tax Service.

Information about the sources of the industry average salary is presented in the justification.

What to do if you receive such a letter and how to respond to it?

Industry average wage level, does it have to be like that? We suggest turning to the Labor Code of the Russian Federation. We look at Article 133.1, from it we understand that a subject of the Russian Federation adopts a regional agreement with its own level of minimum wage, and this level cannot be lower than the level of wages established by federal law. In Moscow, the minimum level is currently 18,742 rubles according to the Moscow Tripartite Agreement. It turns out that the legislation does not require an industry average wage level.

The tax inspector's notification of an increase in wages to the industry average level is illegal.

However, such letters about salary increases are aimed at legalizing “shadow” wages. Inspectors believe that wages within the minimum wage or slightly higher in Moscow simply do not correspond to reality. Tax inspectors recommend reviewing the level of wages and inform that otherwise the company may be selected for an on-site tax audit. By the way, if we turn to the current Order of the Federal Tax Service No. MM-3-06 / [email protected] dated May 30, 2007, then in paragraph 5 of the Order we will find a condition on the payment of an average monthly salary not lower than the industry average, otherwise, a lower salary will be
one of the criteria for conducting an on-site tax audit
(clause 5 of the Order).

What do we offer to our clients? It is imperative to respond to the letter from the Federal Tax Service by drawing up a written response.

Attach a copy of the staffing schedule to your answer. Indicate the reason for paying this level of wages.

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Conclude an agreement Question to the auditor

The organization received a request from the Federal Tax Service to adjust the calculation of insurance premiums and pay additional wages to employees. The inspectorate explained its requirement by the fact that the salary of the organization’s employees is below the industry average. Can the tax inspectorate make such a requirement to an organization? On what basis?

If the employee’s wages are equal to or higher than the minimum wage (the minimum regional wage, if established in the region), then the inspectorate has no right to demand an increase in wages.

Let's justify the answer.

If errors or contradictions with the data available to the inspectorate are identified in the calculation of insurance premiums, the tax inspectorate informs the payer about this (clause 3 of Article 88 of the Tax Code of the Russian Federation). In this case, the inspection may require that the necessary explanations be provided within 5 days or that appropriate corrections be made within the prescribed period.

When conducting a desk audit of the calculation of insurance premiums, the inspection may request from the payer of insurance premiums only information and documents that confirm the validity of the application of reduced tariffs and non-payment of insurance premiums (clause 8.6 of Article 88 of the Tax Code of the Russian Federation). In other cases, when conducting a desk audit of a calculation, the tax authority does not have the right to request additional information and documents from the payer (Clause 7, Article 88 of the Tax Code of the Russian Federation).

According to Art. 133 of the Labor Code of the Russian Federation, the monthly salary of an employee who has fully worked the standard working hours during this period and fulfilled the labor standards cannot be lower than the minimum wage. By virtue of Art. 133.1 of the Labor Code of the Russian Federation, the monthly salary of an employee who works in the territory of the corresponding constituent entity of the Russian Federation and who works for an employer in respect of whom a regional minimum wage agreement is in force cannot be lower than the minimum wage in this constituent entity of the Russian Federation. The legislation does not contain requirements for payment of wages not lower than the industry average.

Thus, the fact that a particular employee's salary is less than the industry average is not an error or a contradiction. This fact does not give the tax inspectorate the right to demand clarification or demand an updated calculation under clause 3 of Art. 88 Tax Code of the Russian Federation. Grounds for application of the provisions of clause 8.6 of Art. 88 of the Tax Code of the Russian Federation is also not present in this case.

Taking into account the above, the taxpayer, on the basis of paragraphs. 11 clause 1 art. 21 of the Tax Code of the Russian Federation has the right not to fulfill the received demand as unlawful and not in accordance with the Tax Code of the Russian Federation. And also appeal it to a higher tax authority, and then in court in the manner prescribed by Art. 138 and 139 of the Tax Code of the Russian Federation.

We note that in accordance with the order of the Federal Tax Service of Russia dated May 30, 2007 No. MM-3-06/ [email protected] , the payment of an average monthly salary per employee below the average level for the type of economic activity in a constituent entity of the Russian Federation is one of the criteria used by the tax authorities in the process of selecting objects for conducting on-site tax audits.

Source: information system 1C:ITS

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We support 1C: setup, updates, consultations

Support by phone or online
Highly qualified specialists

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Consulting experience since 1992

10,000 clients supported

Conclude an agreement "> Question to the auditor

If the employee’s wages are equal to or higher than the minimum wage (the minimum regional wage, if established in the region), then the inspectorate has no right to demand an increase in wages.

Let's justify the answer.

Source: information system 1C:ITS