What does traveling work mean? Employment contract with traveling nature of work
Question
If an employee has job description travel-related work, travel expenses do not increase?
Answer
The conditions that determine the traveling nature of the work are subject to inclusion in the employee's employment contract (Article 57 of the Labor Code of the Russian Federation).
According to Art. 166 of the Labor Code of the Russian Federation, business trips of employees whose permanent work is of a traveling nature are not recognized as business trips. According to Art. 168.1 of the Labor Code of the Russian Federation, the employer reimburses employees with a traveling nature of work related to business trips:
travel expenses
housing rental expenses
other expenses incurred by employees with the permission or knowledge of the employer.
The amount and procedure for reimbursement of expenses related to business trips of employees with an itinerant nature of work, as well as a list of works, professions, positions of these employees are established by a collective agreement, agreements, local regulations, labor contract.
Thus, business trips of an employee with a traveling nature of work are not business trips, and therefore, the employer does not have to reimburse travel expenses for travel of such employees, and there is no increase in travel expenses. For business trips of employees with a traveling nature of work, the employer compensates for the expenses listed above (Article 168.1 of the Labor Code of the Russian Federation) in the manner and amount established by the relevant collective agreement, local act or an employment contract.
Details in the materials of the System:
Answer: How to apply for a job
Is it necessary to include in the employment contract conditions on the traveling nature of the work or on business trips of the employee
If the work of an employee is constantly connected with traveling, a clause about the traveling nature of the work is a prerequisite of the employment contract (paragraph 8, part 2, article 57 of the Labor Code of the Russian Federation).
When drawing up an employment contract, it is necessary to distinguish between the concepts of a business trip and traveling (mobile) nature of work.
A business trip is a trip of an employee by order of the organization for a certain period, in which he performs an official assignment outside the place of permanent work. This is stated in article 166 of the Labor Code of the Russian Federation. It is not necessary to include a condition on business trips for an employee in an employment contract.
Traveling nature are works in which:
the employee does not have a fixed workplace (drivers)
part of the working time is spent traveling from the location of the organization to the place of work (employee of construction organizations).
Mobile work includes work that:
made on the way (conductor, stewardess, etc.)
involve frequent relocation of the organization (relocation of employees) (employees of mobile construction organizations).
In these cases, employee trips are not recognized as business trips. This follows from the provisions of Article 168.1 and Part 1 of Article 166 of the Labor Code of the Russian Federation.
IN collective agreement or in a local regulatory act, for example, an order, the employer may provide for a specific list of positions with a traveling (mobile) nature of work (part 2 of article 168.1 of the Labor Code of the Russian Federation). It can include employees official duties which includes occasional travel and relocation. For example, equipment adjusters, sales managers, insurance agents, etc.
It is easier to document traveling (mobile) work than business trips. At the same time, in a collective agreement or in a local act, it is necessary to determine:
list of traveling (mobile) work (Article 168.1 of the Labor Code of the Russian Federation)
the amount of reimbursable expenses (Article 168.1 of the Labor Code of the Russian Federation)
the procedure for confirming the production nature of trips (movements).
The amount and procedure for reimbursement of expenses can also be prescribed in employment contracts with specific employees.
As documents confirming the production nature of trips, movements (destinations, goals), you can use travel logs, route sheets, etc.
Unlike business trips, it is not necessary to issue personal documents (travel order, job assignment, travel certificate) for each trip (movement) of employees with a traveling (mobile) nature of work. In addition, for employees with a traveling (mobile) nature of work, the organization may provide for a simplified procedure for reporting on trips, movements (for example, once a week or a month).
Nina Kovyazina,
Deputy Director of the Department of Education and Human Resources of the Ministry of Health of Russia
Answer: What documents need to be issued when sending an employee on a business trip
What document is the basis for sending an employee on a business trip with a traveling nature of work
Business trips of an employee whose work is traveling in nature are not recognized as business trips (part 1 of article 166 of the Labor Code of the Russian Federation). Therefore, travel documents (service assignment, order to send on a business trip, travel certificate) are not issued in this situation.
In a local regulatory act (collective agreement, agreement), the employer must establish a list of jobs, professions, positions of employees whose permanent work is traveling in nature (part 2 of article 168.1 of the Labor Code of the Russian Federation). In addition, the employer is obliged to keep records of the time worked by each employee (part 4 of article 91 of the Labor Code of the Russian Federation). As a result, the employer needs to documentation sending an employee on a business trip.
Labor legislation does not contain a single document for registering the direction of an employee on a business trip with the traveling nature of the work. For certain categories of employees (for example, drivers), such documents are waybills. approved by Decree of the State Statistics Committee of Russia dated November 28, 1997 No. 78. In relation to employees of other professions, by analogy, a travel (route) sheet, daily (travel) task, etc. can also be applied. specific kind(form) of the specified document, subject to the requirements for the availability of mandatory details, should be fixed in the local act of the organization (clause 2, article 9 of the Law of December 6, 2011 No. 402-FZ, clause 3 of the Mandatory details approved by the decree of the Ministry of Transport of Russia of September 18 2008 No. 152).
Sergei Razgulin,
Acting State Councilor of the Russian Federation, 3rd class
How to draw up a provision on the traveling nature of work in terms of reimbursement of expenses for gasoline and mobile communications?
Question
Good afternoon! Tell me, please. We in the organization want to establish for the driver the traveling nature of the work (RHR). But when developing the regulation on RHR, we faced the issue of reimbursement for gasoline and mobile communications. We give this driver a card with a fixed limit on gasoline and a cell phone also with a limit. On these cards, indicating all the limits, a liability agreement is concluded with the driver. And it turns out that only the costs of renting a dwelling and daily allowance, if necessary, are reimbursed on the basis of an advance report. Accordingly, how is it more correct to indicate in the Regulations on the RHR: indicate exactly what a liability agreement is concluded and a card and phone with limits are issued, or as a standard, gasoline expenses are reimbursed on the basis of waybills, cashier's checks, etc. Thank you in advance!
Answer
The employer may enter into contracts for the full liability only with employees of certain categories. The list of positions and works replaced or performed by employees with whom the employer can enter into written agreements on full individual liability for the shortage of entrusted property is approved by Decree of the Ministry of Labor of Russia dated December 31, 2002 No. 85.
We also note that in accordance with Article 244 of the Labor Code of the Russian Federation, as well as the letter of Rostrud dated October 19, 2006 No. 1746-6-1, the employer is not entitled to conclude written agreements on liability if the position of the employee or the specific work entrusted to him is not provided for by the specified List.
Therefore, you are not entitled to conclude an agreement on full liability with the driver of the car, unless the driver's labor duties include, for example, cash collection or forwarding functions. Driving a vehicle is not provided for by the lists of positions or work, in the performance of which contracts on full individual or collective (team) responsibility can be concluded with employees.
Thus, we can say that you are not entitled to conclude a written agreement on material liability with this employee (i.e. with the driver).
In all cases, any condition of the employment contract that worsens the position of the employee compared to labor law, is declared invalid. Consequently, the invalidity of such an agreement will be obvious with all the ensuing consequences.
Illegal conclusion of an agreement on full liability is recognized as a violation of labor legislation, for which the organization can be held liable. administrative responsibility under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation.
At the same time, do not forget that bringing an employee to full liability is possible without drawing up an agreement on full liability. The list of such cases is given in Article 243 of the Labor Code of the Russian Federation, on the basis of which it follows that in the event of proven guilt (intentional form of guilt) of an employee in causing damage to the property of the employer, the specified damage can be recovered from the employee in full, even if the employee is position, the conclusion of an agreement on full liability is not expected. Therefore, in the cases provided for by Art. 243 of the Labor Code of the Russian Federation, the driver of the car can be held fully liable (that is, the employee can recover damages in full size regardless of its size wages).
With regard to the issue of establishing traveling work.
As a rule, traveling is understood as work, the performance of which is directly related to moving around one or more settlements or from one settlement to another.
In accordance with part 2 of Art. 57 of the Labor Code of the Russian Federation, if the work is of a special nature, then the conditions defining it are indicated in the employment contract as mandatory (for example, the contract includes a condition on the traveling nature of the work, if the driver’s duties include constant trips from the parent organization to branches in order to accompany officials or to send documents).
At the same time, Article 168.1 of the Labor Code of the Russian Federation establishes that the amount and procedure for reimbursement of expenses associated with business trips of employees specified in part one of this article, as well as the list of works, professions, positions of these employees are established by a collective agreement, agreements, local regulations. The amount and procedure for reimbursement of these expenses may also be established by the employment contract.
Therefore, the condition that the work of individual employees is related to business trips (i.e., it is traveling) must be fixed in the following documents:
in a section of a collective agreement or in a local regulation (for example, in Regulations on traveling nature of work)
in the employee's employment contract
in the employee's job description
in reports on business trips with the attachment of documents confirming travel expenses.
Therefore, in the Regulations on traveling nature, you need to prescribe:
List of employees with traveling nature of work
Procedure for documenting business trips
Norms and procedure for reimbursement of expenses to employees on business trips at the enterprise, taking into account the requirements of the Labor Legislation and the specifics of the organization's work.
At the same time, we note that the development of the Regulations on the traveling nature of work is also carried out taking into account the requirements accounting and tax legislation, for the purposes of attributing the costs of business trips of employees to income tax expenses in each specific situation.
A sample of the design of the Regulation on traveling character is given below in the text.
Thus, in the Regulations on traveling nature, you do not need to indicate that an agreement on liability is concluded with the employee. At the same time, in this provision you can prescribe in detail the amount and procedure for reimbursement of expenses associated with business trips. Please note that according to Art. 168.1 of the Labor Code, only actual expenses incurred are subject to reimbursement. If the employee does not bear travel expenses (moves on official vehicles with the employer paying for fuel and lubricants). then nothing this reason the employee does not need to be reimbursed. Similarly, the issue of reimbursement of living expenses is solved.
Sample filling in Regulations on traveling nature of work
Society with limited liability Alpha
(LLC Mercury)
APPROVE
CEO
CJSC Alfa
A.V. Lviv
POSITION
about traveling nature of work
1. GENERAL PROVISIONS
1.1. The Regulation on the traveling nature of work (hereinafter referred to as the Regulation) is a local regulatory act of the Alpha Limited Liability Company (hereinafter referred to as the Company or the Employer), developed and adopted in accordance with the current labor legislation (Articles 8, 166, 168.1 of the Labor Code of the Russian Federation) .
1.2. This Regulation determines the list of positions and professions of the Company's employees, whose permanent work is of a traveling nature, and also regulates the procedure and amount of reimbursement of expenses associated with business trips of employees, whose permanent work is of a traveling nature.
1.3. For the purposes of these Regulations, traveling work is understood as work related to the employee’s constant business trips around Moscow or from one locality to another within the territory stipulated by the employment contract, performed by the employee in the course of performing work duties.
1.4. This Regulation applies to all employees of the Company (both main and part-time employees), whose permanent work is of a traveling nature.
1.5. This Regulation shall enter into force upon its approval CEO and is valid until the introduction of a new Regulation on the traveling nature of work.
1.6. Amendments to the current Regulations are made taking into account the opinion of the trade union by order of the General Director.
2. EMPLOYEES WHOSE PERMANENT WORK
HAS A TRAVELING CHARACTER
2.1. The list of positions and professions of the Company's employees, whose permanent work has a traveling nature, is determined by Appendix No. 1 to these Regulations.
2.2. The traveling nature of work can be established for an employee both when he is hired for a position (by profession) specified in Appendix No. 1 to this Regulation, and in the process of working for the Employer when transferring an employee to a position (profession) specified in Appendix No. 1 .
2.3. The conditions that determine the traveling nature of the work of a particular employee are subject to mandatory inclusion in the employment contract.
2.4. If at the conclusion (change) of an employment contract with an employee holding the position (profession) provided for in Appendix No. 1 to this Regulation, the terms of the traveling nature of the work were not included in the employment contract, then its content must be supplemented necessary conditions by agreement of the parties, concluded in writing and being an integral part of the employment contract.
2.5. The absence in an employment contract with an employee holding a position (performing work by profession) specified in Appendix No. 1 to this Regulation does not relieve the employer from providing the employee with guarantees and compensations provided for by this Regulation when sending the employee on a business trip.
2.6. The work provided for in Appendix No. 1 to this Regulation cannot be accepted (transferred) by persons for whom the traveling nature of work is contraindicated in accordance with a medical report.
2.7. In the event that an employee whose permanent work is of a traveling nature, in accordance with a medical report, reveals contraindications for performing this work, the employee is subject to suspension from work stipulated by the employment contract and transfer to another job that is not contraindicated for him for health reasons. If the employee refuses to transfer or if the Employer does not have the appropriate job, the employment contract with the employee is subject to termination in accordance with clause 8 of part one of Art. 77 of the Labor Code of the Russian Federation.
3. BUSINESS TRAVEL OF EMPLOYEES,
THE PERMANENT WORK OF WHICH HAS A TRAVELING CHARACTER
3.1. For the purposes of this Regulation, business trips are recognized as trips (or other movements) of employees whose permanent work is of an itinerant nature, performed by them on behalf of the employer to perform work stipulated by the employment contract. These business trips are not business trips.
3.2. The basis for sending an employee on a business trip is a written order from the Employer (an authorized person):
Compensation for employees with a traveling nature of work
Senior Consultant at VnesheconomAudit Group of Companies
There is separate categories employees whose permanent work is of a traveling nature or carried out on the road. According to the norms of the Labor Code, the employer is obliged to reimburse them for expenses related to business trips. The commented letter states that the amounts of compensation to employees whose permanent work is of a traveling nature are not subject to personal income tax within the limits of the amounts established by the collective agreement or local regulations. Such costs can also be taken into account for income tax purposes. (LETTER OF THE MINISTRY OF FINANCE OF THE RUSSIAN FEDERATION No. 03-04-06/45182 dated October 25, 2013)
Traveling nature of work: legal regulation
The Labor Code operates with such a concept as the traveling nature of work, but does not contain its specific definition. What kind of work, then, is considered traveling work?
The courts have repeatedly noted that this is a job that involves constant business trips. That is, the employee performs work outside the office. This conclusion was reached, for example, by the Federal Antimonopoly Service of the North-Western District in its resolution of December 6, 2004 No. A26-8850 / 03-21. So, traveling is recognized as the work of a driver or courier.
Specialists of the Ministry of Health and Social Development of Russia, in a letter dated September 18, 2009 No. 22-2-3644, indicated that since there is no concept of a traveling nature of work in the current legislation, the decision to classify a particular work as a traveling work is taken by the organization independently.
For some industries, such as construction, the definition of traveling nature of work is enshrined in industry agreements.
The Federal Industry Agreement* provides the following definition: the traveling nature of work in construction provides for their performance at facilities located at a considerable distance from the location of the organization, in connection with which employees travel to work time from the location of the employer (collection point) to the place of work at the facility and back.
* Federal industry agreement on construction and industry building materials Russian Federation for 2011-2013.
Please note that the itinerant nature of work should not be confused with business trips - employee trips by order of the employer for a specific period to perform an official assignment outside the place of permanent work.
Article 166 of the Labor Code of the Russian Federation explicitly states that business trips of persons whose permanent work is carried out on the road or has a traveling character are not recognized as business trips.
Thus, the traveling nature of the work implies the performance of official duties outside the office. The legislation does not contain a more precise formulation. The organization independently (taking into account the specifics of the activity) establishes a list of employees whose work is traveling in nature.
In the event that the employer finds it difficult to answer the question whether the activities of employees holding certain positions are traveling work, experts from the main financial department recommend contacting the Ministry of Labor and Social Protection of the Russian Federation with a request.
Travel guarantees and compensation
For personnel with a traveling nature of work, the Labor Code provides for a number of additional guarantees and compensations.
So, if the work is traveling in nature, then on the basis of an employment contract, a local regulatory act, an allowance may be paid.
When determining the amount of such an allowance, it is necessary to be guided by:
If these documents do not apply to the employer, then he has the right to establish an allowance for the traveling nature of work in a local regulatory act.
In addition, in accordance with Article 168.1 of the Labor Code of the Russian Federation, the employer is obliged to reimburse such employees for the following expenses:
That is, organizations can compensate for any expenses of an employee related to traveling work.
The list of expenses and the amounts that the organization is ready to compensate employees for the traveling nature of the work must be prescribed in the local regulatory act, collective or employment contracts.
Documenting
Consider what documents the employer needs to issue in order for the payment of compensation to those persons whose work is traveling in nature to be recognized as justified.
1. Labor contract. In accordance with Article 57 of the Labor Code of the Russian Federation, the condition on the traveling nature of the work must be indicated in the employment contract. In addition, the traveling nature of the work also needs to be fixed in the job description of the employee.
2. Regulations on traveling nature of work. According to article 168.1 of the Labor Code of the Russian Federation, the list of professions, positions with a traveling nature of work is established by a collective agreement, agreements, local regulations, such as the Regulation on the traveling nature of work. It contains a list of jobs, professions and positions of a traveling nature, regulates the procedure and amount of reimbursement of expenses associated with business trips, as well as the procedure for processing trips and forms of documents. The regulation is approved and put into effect by the order of the employer.
3. Job descriptions. In the job descriptions of those specialists to whom the organization compensates for the expenses associated with business trips, it is necessary to indicate that their permanent work is of a traveling nature. And in this case, payment for travel, accommodation and daily allowance will be considered a reasonable expense.
4. Documents confirming expenses. The cost of travel and accommodation must be confirmed by transport tickets and hotel bills. Per diems are issued for each day of a business trip, so you should draw up an order, indicating in it how many days the business trip will last.
Personal income tax: the procedure for taxation of reimbursement of expenses
In accordance with paragraph 3 of Article 217 of the Tax Code of the Russian Federation, all types of compensation payments established by law, which are related to the performance of labor duties by the taxpayer. This category of non-taxable payments also includes the amounts of reimbursement of expenses for personnel with a traveling nature of work.
As noted above, Article 168.1 of the Labor Code of the Russian Federation contains a list of costs that the employer is obliged to compensate the employee. Recall that in a collective or labor agreement, other local regulatory act, the employer establishes a specific list of reimbursable expenses, as well as the amount of compensation.
Thus, as reported by the main financial department in the commented letter, payments aimed at reimbursement of expenses related to official travel of employees whose work is of a traveling nature are not subject to income tax. individuals in the amounts established by agreements, labor or collective agreement or other local acts of the organization.
Income tax: the possibility of recognizing in expenses the amounts of reimbursement of expenses
On the question of the possibility of recognizing in expenses taken into account for the purposes of taxation of profits, the amounts of reimbursement of expenses associated with business trips, the Ministry of Finance of Russia gives a positive answer. And again, it indicates that only compensations provided for by agreements or local regulations can be taken into account in expenses.
The amounts of compensation, according to officials of the main financial department, are subject to inclusion in other expenses on the basis of subparagraph 49 of paragraph 1 of Article 264 of the Tax Code of the Russian Federation.
Worker on the road day after day
Often, the staff of the organization has employees whose permanent work is carried out on the road or has a traveling (mobile) character. As a rule, firms compensate such employees for expenses related to business trips. To take these costs into account when calculating income tax, you need to correctly complete all necessary documentation. We will talk about how to do this, as well as about the features of accounting and taxation of such expenses in the article.
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The procedure and amount of reimbursement of expenses arising if permanent work is carried out on the road or has a traveling (mobile) nature are regulated by the Labor Code.
The employer must reimburse the following types expenses (part 1 of article 168.1 of the Labor Code of the Russian Federation):
Compensation for traveling nature of work
In addition to the rules governing the reimbursement of traveling expenses, it is possible to establish an allowance (additional payment) to wages for a special, for example traveling, nature of work (part 1 of article 129 of the Labor Code of the Russian Federation). It can be a fixed amount, or a percentage of official salary, or a value that depends on the output of the employee. The allowance can be set in the position on wages. in a collective or labor agreement.
Regardless of the type of work (on the way, traveling or mobile), the costs associated with their implementation are reflected in tax and accounting records in a single manner. The nature of the work performed affects the execution of internal documents regulating the procedure for reimbursement of expenses. The employer or the parties to the collective agreement determine a specific list of expenses, as well as the amount and procedure for their reimbursement (part 2 of article 168.1 of the Labor Code of the Russian Federation).
The nature of the work determines the list of reimbursable costs
To determine the list of costs in connection with work on the road, the traveling and mobile nature of work, let's figure out what are the differences between them.
As a rule, traveling is understood as work, the performance of which is directly related to moving around one or more settlements or from one settlement to another. Employees whose work is of a traveling nature include couriers, foremen working on call (adjusters), advertising and sales agents. Obviously, these categories of workers may have travel expenses.
Traveling work should be distinguished from work performed on the road, since in the first case the employee has the opportunity to return to his place of residence every day, and in the second - no. Note that the work on the way is performed when any vehicle. On the way, for example, conductors of passenger trains, stewardesses, freight forwarders, truck drivers work. This type of work requires the payment of daily allowance and accommodation.
Mobile work is associated with a frequent change of workplace (place of performance of the labor function), which is any territory. Mobile includes, for example, the work of builders, loggers, security guards (private security companies, departmental and non-departmental security), etc. In this case, the composition of expenses may include complete list: for travel, per diems, for accommodation, etc.
In order to be able to make such expenses, take them into account when calculating income tax, the employer must correctly draw up a number of documents (clause 1, article 252 of the Tax Code of the Russian Federation).
Preparation of travel documentation
The condition that the work of individual employees is related to official travel must be fixed in the following documents:
Section of the collective agreement or a separate provision
about business trips
First of all, it is necessary to determine and fix the list of jobs, professions or positions of employees whose permanent work is associated with business trips. This list is best done as an appendix to the main normative document(since it can be supplemented or reduced more often than the position changes).
The regulation (section of the collective agreement) establishes a list of reimbursable expenses depending on the nature of the work and job duties of employees. Part 1 of Article 168.1 of the Labor Code makes it possible to expand this list without restrictions. However, it is necessary that the reimbursed expenses be economically justified (clause 1, article 252 of the Tax Code of the Russian Federation).
Also, the regulation should determine the procedure for reimbursement of the employee's expenses and establish, if necessary, their size.
Please note that when determining the taxable base for income tax, the amount of expenses reimbursed to employees whose permanent work is related to official travel is not limited. That is, the employer or the parties to the collective agreement can establish any procedure for reimbursement and the amount of expenses for these purposes.
The provision (section of the collective agreement) must necessarily contain a description of the procedure for submitting reports on the implementation and confirmation by the employee of expenses related to business trips.
Example 1
LLC Argus provides services for the delivery and escort of goods, therefore, for some of the employees (couriers, forwarders, account managers, drivers) of the organization, the work is related to traveling. It is necessary to draw up a provision for reimbursement of expenses related to official travel.
SOLUTION. The position and list of jobs, professions or positions of employees whose permanent work is related to business trips are given on p. 51 and 53.
Employment contract on traveling nature of work
In order for an employee to have the right to reimbursement of expenses associated with business trips, as well as to receive an appropriate allowance, the employment contract must indicate that his work is of a special, for example traveling, nature (part 2 of article 57 of the Labor Code of the Russian Federation). The same item should be contained in the job description. In addition, the employment contract makes a reference to the provision or section of the collective agreement, which describes the procedure, amount and conditions for reimbursement of expenses associated with business trips, it is said about the appointment of a salary supplement.
Sample Regulations on traveling nature of work
Position
on the procedure for reimbursement of expenses related to official
trips of employees of LLC Argus, permanent work
which has traveling character
Moscow city
1. This Regulation regulates the procedure for reimbursement of expenses to employees whose work is defined as traveling.
2. The regulation applies to all employees of LLC Argus, whose permanent work is of a traveling nature.
4. The list of works, professions and positions of employees specified in paragraph 2 of the Regulations is given in Appendix No. 1 to the Regulations.
5. For performance official duties employees whose work is of a traveling nature, at the discretion of the manager, are issued an advance against the upcoming expenses for official travel. The order indicates the amount of the advance paid to the employee, as well as the date when the employee must account for the use of the advance.
6. The employer pays:
1) daily allowance for each day of a business trip, including weekends and holidays, in the amount of 900 rubles. per day - forwarders, account managers and drivers. When traveling on business to such settlements, from where the employee has the opportunity to return to the place daily permanent residence, per diems are not paid
2) expenses for renting a dwelling (according to actual documented expenses, but not more than 2,500 rubles per day) - forwarders, customer service managers and drivers
3) office expenses (according to actual documented expenses) - to account managers.
4) travel expenses:
7. The employees listed in paragraph 2 of the Regulations are required to draw up an advance report once a month in the form No. AO-1 Advance report, approved by resolution Goskomstat of Russia dated 01.08.2001 No. 55, on expenses for business trips. All documents confirming expenses must be attached to the report. Expenses incurred by employees in connection with business trips are paid after the approval of the report by the head of Argus LLC.
CEO
OOO Argus Varfolomeev V.G. Varfolomeev
Whether to issue each exit?
Business trips of employees whose permanent work has a traveling (mobile) nature or is carried out on the road are not recognized as business trips (part 1 of article 166 of the Labor Code of the Russian Federation). And if so, it is not necessary to issue an order to send an employee on a business trip in the form of No. T-9 or T-9a, to issue a travel certificate in the form of No. T-10 and the official task of the organization2 for each trip.
An order is needed. If an employee is sent on a multi-day business trip, the order is drawn up in any form, indicating in it the number of days of the trip. If the employee’s trips last more than one day, then it would be useful to issue a job assignment, indicating in it where and for what purpose the employee is going. The text of the assignment may become part of the order or its application. It is useful for recognizing the amount of daily allowance in tax accounting. You can compose it in any form.
Order is not needed. If an employee sent on a business trip has the opportunity to return daily to his place of residence, for example, a courier or forwarder, there is no need to issue each of his departures with a separate order and official assignment. It is enough to describe the content of his work in the job description, and the procedure for reporting expenses related to business trips - in the provision or section of the collective agreement.
Sample application form No. 1 to the Regulation on the traveling nature of work
Application No. 1
List of works, professions and positions of employees
LLC Argus, whose permanent work
has a travel character
Travel and hospitality expenses
Chapter 8 Special conditions or nature of work 8.1. Traveling nature of work
The traveling nature of work is always associated with certain costs that employers are required to compensate. In this case, compensation can be made in the form of a salary supplement or in the form of reimbursement of expenses.
Consider these payments for tax purposes and the procedure for their reflection in accounting, as well as the responsibility of the employer in case of non-payment.
Article 168.1 of the Labor Code of the Russian Federation establishes that for employees whose permanent work is carried out on the road or has a traveling character, the employer reimburses the following related to business trips:
Travel expenses
Residential rental expenses
Additional expenses associated with living outside the place of permanent residence (daily allowance, field allowance)
Other expenses incurred by employees with the permission or knowledge of the employer.
The amount and procedure for reimbursement of expenses related to business trips of employees, as well as the list of works, professions, positions of these employees are established by a collective agreement, agreements, local regulations. The amount and procedure for reimbursement of these expenses may also be established by the employment contract.
Thus, the Labor Code of the Russian Federation guarantees reimbursement (compensation) of expenses for employees whose activities are associated with constant traveling.
In Art. 57 of the Labor Code of the Russian Federation, it is established that when hiring an employee whose permanent work is traveling in nature, the employer is obliged to include this condition in an employment contract.
At the same time, despite the fact that the Labor Code of the Russian Federation does not contain a mention of a job description, it is an important document, the content of which determines not only the labor function of the employee, the scope of duties, the limits of responsibility, but also qualification requirements applied to the position.
Since the procedure for compiling job descriptions is not regulated by regulatory legal acts, the employer independently decides in what form it is drawn up. The job description may be an appendix to the employment contract, or it may be approved as an independent document.
As stated in the Letter of the Federal Tax Service of Russia for Moscow dated June 30, 2008 N 20-12 / 061153, the employer has the right to fix the procedure and amount of reimbursement for the travel of an employee whose permanent work is of a traveling nature, in an annex to the employment contract, which will be its integral part, without the approval of the relevant job description, as an independent document.
Currently, labor legislation does not disclose the concept of "traveling nature of work", however, it can be said that these are business trips of employees on an ongoing basis. Such workers include drivers, couriers, freight forwarders, sales representatives, conductors of passenger trains, stewardesses, and so on.
At the same time, Art. 166 of the Labor Code of the Russian Federation clarifies that business trips of employees whose permanent work is carried out on the road or has a traveling character are not recognized as business trips.
It follows that compensation of expenses of employees cannot be made on the basis of travel certificate(Letter of the Ministry of Finance of Russia dated April 19, 2007 N 03-03-06 / 1/250).
In the Letter of the Ministry of Finance of Russia dated August 18, 2008 N 03-03-05 / 87, it is noted that the Labor Code of the Russian Federation distinguishes two types of compensation payments. One of them combines compensation payments related to special working conditions. Such compensation, according to Art. 129 sect. 6 "Payment and regulation of labor" of the Labor Code of the Russian Federation, are elements of remuneration.
The second type of compensation is defined in Art. 164 of the Labor Code of the Russian Federation, according to which compensation is understood as cash payments established in order to reimburse employees for the costs associated with the performance of their labor duties or other duties provided for by federal law. These payments are not included in the remuneration system, they are compensation for the employee's costs associated with the performance of labor duties.
Considering the above, reimbursement of expenses to employees, in accordance with Art. 168.1 of the Labor Code of the Russian Federation, refers to compensation for costs associated with the performance of labor duties.
And as stated in the Letter of the Ministry of Finance of Russia dated May 7, 2008 N 03-03-06 / 1/302, these costs can be included in labor costs in the amount and in accordance with the procedure established by the labor and (or) collective contracts, agreements, local regulations.
Thus, if for daily allowances paid in accordance with Art. 168.1 of the Labor Code of the Russian Federation, the tax legislation does not establish any restrictions, then per diems are also included in the cost of wages in full, established by the employment contract, and are not subject to rationing for profit tax purposes.
A similar point of view was expressed in the Letters of the Federal Tax Service of Russia for Moscow dated December 18, 2007 N 19-11 / 120975, the Ministry of Finance of Russia dated October 25, 2007 N 03-03-06 / 1/735.
However, in order to take into account these income tax expenses, the taxpayer is obliged to economically substantiate and document the expenses incurred.
According to Art. 252 tax code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation), documented expenses are understood to be expenses confirmed by:
Documents drawn up in accordance with the legislation of the Russian Federation
Or documents drawn up in accordance with the customs of business turnover applied in a foreign state on the territory of which the corresponding expenses were made
And (or) documents indirectly confirming the expenses incurred (including customs declaration, business trip order, travel documents, report on the work performed in accordance with the contract).
Expenses are recognized as any expenses, provided that they are made for the implementation of activities aimed at generating income.
Based on paragraph 1 of Art. 9 of the Federal Law of November 21, 1996 N 129-FZ "On Accounting" all business transactions carried out by the organization must be documented by supporting documents. These documents serve as primary accounting documents on the basis of which accounting is maintained.
Primary accounting documents are accepted for accounting if they are drawn up in the form contained in the albums unified forms primary accounting documentation, and documents, the form of which is not provided for in these albums, must contain the following mandatory details:
Title of the document
The date of the document
Name of the organization on behalf of which the document is drawn up
Measures of business transactions in physical and monetary terms
Names of positions of persons responsible for the performance of a business transaction and the correctness of its execution
Personal signatures of the indicated persons.
Thus, the forms of primary accounting documents independently approved by the organization, the standard forms of which are not provided for in the albums of unified forms of primary accounting documentation, containing the above mandatory details, can serve documentary evidence traveling expenses (Letter of the Ministry of Finance of Russia dated June 5, 2008 N 03-03-06 / 1/346).
As for the taxation of the UST, according to paragraph 1 of Art. 236 of the Tax Code of the Russian Federation, the object of taxation of the UST for taxpayers - organizations are payments and other remuneration accrued in favor of individuals for labor and civil law contracts, the subject of which is the performance of work, the provision of services (with the exception of remuneration paid individual entrepreneurs, lawyers, notaries engaged in private practice), as well as under copyright agreements.
In accordance with paragraphs. 2 p. 1 art. 238 of the Tax Code of the Russian Federation, all types established by the legislation of the Russian Federation, legislative acts of the constituent entities of the Russian Federation, decisions of representative bodies are not subject to taxation. local government compensation payments (within the limits established in accordance with the legislation of the Russian Federation) related, among other things, to the performance of labor duties by an individual.
Thus, if in a collective agreement, agreement, local regulations or an employment contract it is established that the work of individuals in their position is traveling in nature, then compensation payments aimed at reimbursement by the employer of expenses related to business trips of these persons are not subject to UST. In other cases, they are subject to taxation in the prescribed manner (Letter of the Ministry of Finance of Russia dated February 14, 2008 N 03-04-06-02 / 10).
The courts are of the same opinion. Thus, in the Decree of the Federal Antimonopoly Service of the Volga-Vyatka District of April 9, 2007 in case N A17-3311-3312 / 5/2006, the court indicated that allowances for the traveling nature of work instead of daily allowances are inherently aimed at compensating employees' expenses, therefore, it is also not subject to UST. The same conclusions were made by the courts in the Determination of the Supreme Arbitration Court Russian Federation of February 14, 2008 N 1421/08, Resolution of the FAS of the Far Eastern District of October 17, 2007 in case N F03-A51 / 07-2 / 3349, Resolution of the FAS of the Ural District of February 12, 2008 in case N F09 -4807/07-C2.
However, the Ministry of Finance of Russia on this issue expresses the opposite point of view.
If an organization pays allowances to employees for the traveling nature of work (renting a dwelling, travel expenses), then neither the Labor Code of the Russian Federation, nor other regulatory legal acts of the Russian Federation do not consider wages in terms of exceeding tariff rates(salaries) as a compensation payment.
According to Art. 129 of the Labor Code of the Russian Federation, surcharges and allowances are considered as part of the employee's salary. Therefore, they cannot be considered as compensation, but are included in labor costs. As stated in the Letter of the Federal Tax Service of Russia for Moscow dated October 17, 2007 N 21-11 / [email protected], allowances to the wages of workers for the mobile nature of work cannot be considered as compensation. They increase the wages of this category of workers. Accordingly, the effect of paragraphs. 2 p. 1 art. 238 of the Tax Code of the Russian Federation does not apply to such surcharges, and they are subject to UST taxation.
In accordance with Art. 10 of the Federal Law of December 15, 2001 N 167-FZ "On Compulsory Pension Insurance in the Russian Federation", the object of taxation of insurance premiums and the basis for calculating insurance premiums are the object of taxation and the tax base for the UST, established by Ch. 24" Single social tax"NK RF.
Consequently, contributions to compulsory pension insurance are not paid for such compensatory payments, but at the same time they are charged on allowances for the mobile and traveling nature of work in the generally established manner.
Regarding the personal income tax (hereinafter referred to as personal income tax), in accordance with paragraph 3 of Art. 217 of the Tax Code of the Russian Federation, all types of compensation payments (within the limits established in accordance with the legislation of the Russian Federation) established by the legislation of the Russian Federation, legislative acts of the constituent entities of the Russian Federation, decisions of representative bodies of local government, related, among other things, to the implementation of physical face of their work responsibilities.
In this regard, if it is established in the collective agreement, agreement, local regulations or labor contract that the work of individuals in accordance with their position is traveling in nature, then compensation payments aimed at reimbursement by the employer of expenses related to business trips of these persons, are not subject to personal income tax (Letter of the Ministry of Finance of Russia dated August 27, 2007 N 03-03-06 / 3/14).
If instead of per diem allowances are paid to employees for the mobile nature of work, then they cannot be considered as compensation, as they increase the wages of workers whose work is mobile and traveling. Accordingly, paragraph 3 of Art. 217 of the Tax Code of the Russian Federation does not apply to such surcharges, and these allowances are subject to personal income tax in accordance with the generally established procedure.
Thus, on the basis of the Letters of the Ministry of Finance of Russia and the Federal Tax Service of Russia for Moscow, it can be concluded that the amount of compensation payments aimed at reimbursement by the employer of expenses related to business trips of employees whose permanent work is carried out on the road or has a travel character is not subject to UST and personal income tax. And allowances for the traveling nature of work are subject to UST and personal income tax in accordance with the generally established procedure, since by definition they cannot be expenses of employees.
In the accounting of an organization, reimbursement of expenses for the traveling nature of work is an expense for ordinary activities on the basis of paragraphs 5, 7 of the Accounting Regulation "Organization's expenses" PBU 10/99, approved by Order of the Ministry of Finance of Russia dated May 6, 1999 N 33n "On Approval of the Regulations on Accounting "Expenses of the Organization" PBU 10/99".
In accordance with the Order of the Ministry of Finance of Russia dated October 31, 2000 N 94n "On Approval of the Chart of Accounts for Accounting for the Financial and Economic Activities of Organizations and Instructions for its Application", the allowance for the traveling nature of the work is reflected on account 70 "Settlements with personnel for remuneration", reimbursement (compensation) of expenses of employees for the traveling nature of work - on account 73 "Settlements with personnel for other operations".
The accrual of the allowance is reflected in the credit of account 70 "Settlements with personnel for wages", in correspondence with the debit of accounts for accounting for production costs 20 "Main production", 25 "General production expenses", 26 "General expenses", 44 "Sales expenses" and other.
The accrual of payment (compensation) is reflected in the credit of account 73 "Settlements with personnel for other operations" in correspondence with the debit of accounts for accounting for production costs 20 "Main production", 25 "General production expenses", 26 "General expenses", 44 "Sales expenses " and others.
The payment of compensation (compensation) is reflected in the debit of account 73 "Settlements with personnel for other operations" in correspondence with the credit of account 50 "Cashier".
;Some employers establish for their employees the traveling nature of the work, without asking the question of how legitimate this is, based only on personal ideas. Let us consider in this material, in employment contracts with which categories of workers this condition can be included, what regulates and how this type of labor is compensated.
What the law says
Traveling is a permanent job
Traveling is understood as work in which the employee works outside the organization. But unlike other business trips (one-day and multi-day business trips), traveling work is permanent, not temporary, and is not limited to a specific period.
The law does not establish any criteria for classifying work as traveling work; it can be any profession, position and work in which the employee is constantly traveling.
Such works may include:
- in the course of which regular business trips take place in the serviced territory;
- at facilities remote from the location of the organization, etc.
For example, this nature of work can be established both for the driver of a company car, and for the legal adviser of the organization constantly participating in court hearings, and for the sales manager, who spends part of his working time with clients to place orders.
That is, the employer, at its discretion, determines for which positions / jobs to establish the traveling nature of the work, guided by the specifics of the organization.
Employee reimbursement
Art. 168.1 of the Labor Code of the Russian Federation provides for reimbursement by the employer to the employee during the traveling nature of the work for the following expenses:
- along the way;
- for housing rent;
- additional expenses incurred in connection with living outside the place of permanent residence;
- other, carried out with the permission / knowledge of the employer.
When labor disputes or questions from tax inspectors, documents confirming the correctness of the reimbursement of disputed expenses will be:
- a local normative act establishing the procedure for reimbursement of expenses associated with business trips of employees with a traveling nature of work;
- employment contracts containing a condition for such work.
Regulations on traveling nature of work
A local act (as a rule, this provision) is developed in the usual manner for such acts and is approved by the employer, taking into account the opinion of the trade union body (if it has been created).
There, in addition to the list of professions, positions and works, the following can be provided:
- travel arrangements;
- order of reporting for them;
- compensation payments to employees with traveling work, in addition to those guaranteed by law - for example, allowances or additional payments, etc.
Surely everyone has heard about the traveling nature of work. Almost every organization has a person whose activity is such. It is specific and Labor Code several articles have been devoted to it. Their provisions, as well as all the nuances related to this topic, I would like to note with attention.
Labor Code of the Russian Federation
What is the first thing to say about the traveling nature of the work? The Labor Code of the Russian Federation states that the conditions that determine it, if necessary, must be indicated in the employment contract. This is stated in article number 57.
It is also worth referring to Art. 166 of the Labor Code of the Russian Federation. According to it, all business trips of employees, whose permanent activity is either traveling in nature or carried out on the way, are not business trips.
Also in the Labor Code of the Russian Federation there is article No. 168. Its first paragraph refers to the notorious compensation that is due to people whose work is of an expeditionary, field or traveling nature. The expenses incurred for:
- Fare payment.
- Residential rental.
- Everything related to accommodation (field allowance, daily allowance, etc.).
- Other expenses incurred by an employee with the knowledge or permission of his management.
The procedure for reimbursement of all of the above, as well as the amounts are determined by the collective agreement, local regulations and agreements.
Work on the go
I would like to pay special attention to her. Traveling nature of the work in the first place is the activity that is carried out during the movement of a vehicle. This was noted in the resolution of the Council of Ministers of the RSFSR of 12/12/1978, the provision of which remains relevant to this day.
We are talking about workers in road and river transport. These are captains-mentors, pilots, inspectors and conductors (of buses, trolleybuses, trams, electric trains), drivers, etc.
In these cases, it is very easy to confirm the traveling nature of the work. For this, waybills, orders or reports on flights are provided.
Field and expeditionary staff
They are also relevant to the topic under discussion. Compensation is provided for topographic-geodesic and geological exploration work in the field. Since the activity in this case is carried out in an environment with an unsettled life. And besides, far beyond settlements urban type.
Freight forwarders are also entitled to compensation. The activity of these employees is to provide forwarding services. It is also traveling in nature, as the freight forwarder accompanies the cargo to its destination in order to ensure its safety and, after delivery, issue acceptance documentation.
Design specifics
Above it was a little told about the traveling nature of the work. What does this mean, you can understand. Now it is worth talking about the specifics of the design of this activity.
Representatives of the funds and the IFTS carefully check the documents that are provided as confirmation of the legality of reimbursement of "traveling" employees for the notorious expenses. Why? Because compensation is taken into account when calculating income tax. And it is also exempt from personal income tax and insurance premiums, since it is a payment related to the performance of a person's duties. This does not apply to allowances! They represent a special incentive payment for the performance of work in specific conditions. They are subject to all taxes. However, this will be demonstrated a little later with examples.
So, in order for tax representatives not to have questions for management and employees, it is necessary to reflect in the collective agreement the conditions that determine the traveling nature of the work. They should also be indicated in local regulations and agreements. In the same documents, it is necessary to indicate the amount of compensation.
These requirements are indicated by the letter of the Federal Tax Service of the Russian Federation dated 08/06/2010 and the regulation of the Ministry of Health and social development from 27.02.2010.
About Documentation
Despite all of the above, those organizations that pay compensation to employees will do well to keep documents that can confirm the traveling nature of the work. What does it mean? The fact that there are force majeure and unforeseen checks during which these papers can come in handy. These include the following documents:
- Travel plans approved by management.
- Accounting logs business trips.
- Route sheets.
- Managerial meeting reports.
Judicial practice shows that if at the time of the audit the organization does not have these documents, then the inspectors from the tax service will be able to exclude the funds spent on compensation from the calculation of income tax. And that means additional accrual contributions and income tax.
Amounts and amounts of compensation
The provision on the traveling nature of the work states that he undertakes to confirm the amounts returned to the employee for the financial losses incurred by him. If, for example, he goes on a business trip to the other end of the country, then he will need to submit a report with the application of air tickets, bills and hotel reservations, gasoline checks, taxi fares, etc. This way, management will calculate the correct and exact amount spent by the employee for all the time, and will reimburse it to the penny.
However, in some organizations this approach is not practiced. The management simply carries out monthly accrual of funds to the employee's account in a certain amount (fixed, as a rule). True, in this case, it is likely that representatives of the funds and the IFTS will consider payments of this nature as an allowance for special working conditions, and not as compensation.
In other cases, the employee is issued a card (with or without a limit), and the management receives a bank report on transactions made with it.
Daily payments
I would like to talk about them too. Daily allowances for traveling work do not depend on the actual costs of the employee, and they do not need to be documented.
In accordance with Article 168.1 of the Labor Code of the Russian Federation, enterprises have the right to pay additional expenses to specialists that are associated with living outside their permanent place of residence. Compensations of this kind are also not subject to contributions and personal income tax.
However, the collective agreement must indicate the amount of such payments, the procedure for their calculation and the cases in which this is allowed. This fact was confirmed in the letters of the Ministry of Finance of the Russian Federation dated 09/04/2009, as well as from 06/07/2011 and 06/07/2011.
Illustrative example (surcharges)
So, let's say, an order was issued at the enterprise, according to which the forwarding driver will receive an allowance in the amount of 15,000 rubles for the traveling nature of his work. The following month, it was included in his salary, but contributions and taxes were withheld. 1,950 rubles went as personal income tax (13%) and 3,300 (22%) went to the Pension Fund. Also, 765 rubles were deducted. (5.1%) as a contribution to the FFOMS, another 435 rubles. (2.9%) for the collection in the FSS and another 105 rubles. (0.7%) - tax for industrial accidents. In total, 8,445 rubles remained from 15,000 rubles. Surcharges, unlike compensations, are subject to all taxes listed, and this is unprofitable.
Illustrative example (compensation)
And here is another situation. Suppose an employee of an organization whose average daily salary is 1,200 rubles had to do work for seven days, being in traveling working conditions. Then, upon completion of his duties, he provided evidence to the accounting department confirming his expenses for this period. He enclosed round-trip bus tickets, which cost a total of 4,000 rubles, and a check from the office hotel for 8,000 rubles.
Economic services accrued compensation to the employee in the amount of 20,400 rubles. This amount was obtained by adding compensation for the notorious costs (12,000 rubles) and per diem (1,200 x 7 = 8,400). He receives this money "clean". After all, we are talking about compensation, and it is not taxed.
Work during the day
The labor activity of those people who work on the move throughout the day deserves special attention. In fact, this is the traveling nature of the work (this is also noted in the employment contract). Now it's all about the drivers. public transport and mobile post offices, as well as drivers employed in the transportation of mail. In addition to the experts listed above, this list includes employees of enterprises whose activities consist in the implementation of construction, adjustment and installation work. Naturally, the list includes all persons associated with by rail- conductors, conductors, machinists.
But this is not all that concerns such a topic as the itinerant nature of work. Working time should be normalized, but in this case it is not always feasible. Therefore, if the duration of this activity exceeds 12 days per month, but the employees still return home daily, they are paid a 20 percent bonus. That is, if the monthly rate is 25,000 rubles, then another 5,000 rubles are added to this amount as compensation.
In cases where traveling activities take less than 12 days a month, a person is entitled to compensation up to 15%.
The difference from business trips
It is important to take it into account. Not everyone knows how to distinguish between traveling work and a business trip. Therefore, it is very important that the employer initially prescribes which positions in his company suggest this nature. labor activity. This will greatly facilitate the process of resolving conflicts with employees, which usually relate to pay issues during travel.
Some may believe that working time in such cases is paid according to the rules that are prescribed for business trips. According to average earnings, that is, which is determined quite simply - the average daily salary is multiplied by the number of days spent by a person on a business trip. This is how the final payment is made. And in this case average earnings turns out to be higher than the salary, since it includes incentives, allowances, bonuses, overtime, etc. It is not surprising that many employees with traveling activities often insist that they be paid in this way.
But here Article 167 of the Labor Code of the Russian Federation comes into force. It states that the preservation of the average salary applies only to business trips.
Irreplaceable compensation
It also includes a provision on the traveling nature of the work. Irreplaceable compensation is a salary supplement. It is accrued to the employee constantly, in a certain amount. Such a move is beneficial for companies, since it excludes additional assessments of contributions and personal income tax.
After all, these allowances are included in the wage system, as stated in the 129th and 135th articles of the Labor Code of the Russian Federation. Their payment and everything connected with them does not depend on how much money the employee spends due to frequent trips. Such compensation is an allowance for the fact that a person works in more uncomfortable conditions, unlike the rest.
But even here there is a certain nuance. These payments are constituent part salaries. And so they are taken into account when calculating income tax. This means that they are subject to insurance premiums, as well as personal income tax. This is a minus, but the funds and the Federal Tax Service will never have any questions about the payment of this kind of allowances.
Calculation of a fixed allowance
It would not be superfluous to mention how this compensation for the traveling nature of the work and in what cases it is applied. So, a fixed allowance takes place if the employee:
- All day or most of it is on the road.
- According to work obligations, he moves within a limited area.
- Does not spend money on living and traveling abroad or in other regions as part of his work activity.
- Consumes a predictable amount.
It is important for the employer to note the effect of this compensation system at his enterprise in the contract. This requirement is indicated in the 168th article. The following wording is allowed: “Employees with a traveling nature of work are entitled to a monthly allowance covering travel expenses. Its size is 12% of the salary.
Figures are approximate. The amount of compensation is always determined by the employer. He can indicate it either as a percentage of salary, or in specific monetary terms, indicating the exact amount.
Well, there is much more to be said about how the travel allowance is calculated and what principles an employer must follow. But all of the above makes it clear which specialists can count on compensation and what management needs to do in order to avoid problems associated with representatives of the Federal Tax Service and funds.
The organization sells machines own production in several regions. To install and adjust the equipment, the company's specialists travel to the customer's facilities, whose work is traveling. In order to properly organize work with such employees, it is necessary to prepare and approve the Regulations on the traveling nature of work. Sample 2019, prepared by our specialists, will help personnel officers save time.
Travel work is not business trips
Some employees whose work is connected with traveling, for example, drivers, builders, couriers, are assigned the traveling nature of work. Moreover, the travel condition is included in the employment contract with the employee (paragraph 8, part 2, article 57 of the Labor Code of the Russian Federation).
In turn, a business trip is a business trip of an employee related to the performance of an official assignment outside the place of permanent work (Article 166 of the Labor Code of the Russian Federation). A business trip, unlike traveling work, is of a one-time or periodic nature.
Despite the fact that the work of an employee is of a traveling nature, he can be sent on a business trip. Moreover, a one-time trip of an employee, which differs in terms of its conditions from his usual trips, must be issued as a business trip (letter of the Ministry of Finance of Russia dated 06/01/2005 No. -A41/10098-09).
For example, if a company driver who delivers goods to customers located in the territory of one region is sent by management to another region, then such a trip is recognized as a business trip.
Organizational moments - in the local act
When accepting an employee for traveling work, you must not forget to indicate the condition on traveling in the employment contract concluded with him.
In addition, a separate local act of the enterprise, for example, an order of the head of the organization, must approve the list of positions in respect of which the traveling nature of work is established.
In order to establish the conditions for traveling work, including a list of traveling work, expenses reimbursed by the employer, the procedure for confirming the production nature of trips, it makes sense to develop and approve a sample Regulation on the traveling nature of work (for drivers, for example).
- travel expenses;
- housing rental expenses (if the employee cannot return home);
- expenses that the employee incurs in connection with living outside the permanent place of residence (per diems);
- other expenses incurred with the permission or knowledge of the employer.
Especially for readers, our specialists have prepared a sample of the Regulations on the traveling nature of work 2019, which can be downloaded for free on the website.
Specialists of GNK Group of Companies told how taxation can be optimized by correctly taking into account the traveling nature of the work of employees.
Recently, the Ministry of Finance of the Russian Federation clarified once again that compensation payments to employees whose work is of a traveling nature are not subject to personal income tax, and that these payments are not charged. insurance premiums. Let's consider the situation in more detail.
Who are Traveling Employees?
The general answer to this question is contained in Art. 168.1 of the Labor Code of the Russian Federation. This rule refers to employees whose permanent work is carried out:
on the road (ex. drivers);
has a traveling character ( inspectors, specialists providing household services at the customer's home, couriers, insurance agents);
in the field ( geologists);
in expeditionary conditions ( persons accompanying the goods).
All of them are reimbursed by their employer for travel expenses.
! The legislation does not contain restrictions on the positions of employees for whom the traveling nature of work is established! “As a rule, traveling work is considered to be work in which an employee performs his duties outside the location of the organization,” clarifies federal Service for work and employmentin hisLetter No. 4209-TK dateddated December 12, 2013 No. 4209-ТЗ.
Art. 57 of the Labor Code of the Russian Federation states that the conditions that determine, if necessary, the nature of work (mobile, traveling, on the road, other nature of work) must be contained in employment contract.
Also, the traveling nature of the work can be reflected in the collective agreement (Article 41 of the Labor Code of the Russian Federation).
The document flow for the traveling nature of the work, the employer develops and approves independently. Based on this, GNK GK recommends the organization to develop:
a list of positions, professions and works of persons whose permanent work is carried out on the road, has a traveling or expeditionary character;
local regulation (eg. Regulations on traveling nature of work , in which it will be necessary to define the concept of traveling work, establish compensation payments, determine the forms of documents that will confirm the trips, as well as the procedure for making settlements with the employee. This document is approved and put into effect by order employer).
! If the employee's work is traveling in nature, then such trips are not recognized as business trips (part 1, article 166 of the Labor Code of the Russian Federation). Missions are temporary andtraveling work - permanent. Respectively,"Travel" standards for the traveling nature of the work do not apply. (Letter of the Ministry of Finance dated February 15, 2017 No. 03-04-06 / 8562).
What expenses can be reimbursed and how much exactly?
Compensation is considered cash payments, established for the purpose of reimbursement to employees of costs associated with the performance of labor or other duties provided for by the Labor Code of the Russian Federation and other federal laws(Article 164 of the Labor Code of the Russian Federation). This includes:
No insurance premiums and personal income tax
Employee compensation for traveling nature of work is not accrued, since such payments are not recognized as an object of taxation of insurance premiums(See Letter No. 03-04-06/23538 of the Tax and Customs Policy Department of the Ministry of Finance of Russia dated April 19, 2017).
“Based on the provisions of par. 10 pp. 2 p. 1 art. 422 Tax Code of the Russian Federation not subject to insurance premiums all types established by the legislation of the Russian Federation , legislative acts of the constituent entities of the Russian Federation, decisions of representative bodies of local self-government compensation payments (within the limits established in accordance with the legislation of the Russian Federation), related, in particular, to the performance of labor duties by an individual.
The compensation payments we are talking about are established by the Labor Code of the Russian Federation - Art. Art. 164 and 168.1.
If the work of individuals in their position is traveling in nature, and this is reflected in the employment contract, local regulations, then payments aimed at reimbursement by the employer of expenses related to business trips of such categories of employees are not subject to insurance premiums in the amounts established by local regulations or an employment contract, - the employees of the Department draw conclusions.
The same situation is with personal income tax (see the Letter dated April 19, 2017, already mentioned above): on the basis of paragraph 3 of Art. 217 of the Tax Code of the Russian Federation, compensations to employees with a traveling nature of work are not subject to taxation, provided that the amounts of these compensations are also set properly - on the basis, as already mentioned, of a collective or labor agreement, agreement, local regulatory act of the company).
Sometimes officials consider travel compensation as part of their wages, referring to the definition of wages given in Art. 129 of the Labor Code of the Russian Federation. Based on the results of such inspections, employers are charged fines, penalties and additional contributions. Such decisions are challenged in the courts, while the latter take the side of the employer -compensation for business expensesis not wages.
Saving in practice
A company involved in the installation and maintenance of telecommunications equipment on the territory of customers applied to GNK Group with a task to analyze the composition of expenses for core activities in order to optimize the tax burden. The company had a large share of expenses that were not taken into account when calculating income tax.
It should be noted that the maintenance of the equipment on the territory of the client was carried out by specialists technical support, and the company's clients are located both in Russia and abroad.
An analysis of employment contracts concluded with technical support specialists showed that they contain the following:
the employee performs a labor function outside the location of the Employer (remotely);
the work of the Employee in its content has a traveling character, which is necessary for the Employee to fulfill his labor duties in the Russian Federation and abroad;
In addition to the official salary, the Employer pays the Employee a monthly allowance for the traveling nature of the work.
The total amount of compensation to employees was approximately 450,000 rubles. monthly, the amount of insurance premiums is about 140,000 rubles. Wherein domestic situation the company did not have any information about traveling work. And precisely because of the absence of such a document, the compensation established by the employment contract, in fact, was not such, but was part of wages(Article 129 of the Labor Code of the Russian Federation), and it could not be excluded from the base for calculating personal income tax and insurance premiums.
Specialists of the GNK Group recommended that the company develop and approve a regulation on traveling work, which describes the size and procedure for paying compensation amounts to employees. At the same time, the payment procedure should provide for reimbursement of expenses only on the basis of supporting documents.
As a result of these actions, the company's monthly savings amounted to:
140 000 rub. on insurance premiums;
58 500 rub. on personal income tax.
OUTPUT: in order to optimize the taxation of the enterprise, if it is necessary to pay employees for the traveling nature of the work, the State Oil Company Group recommends that expenses be recorded as compensation and not as allowances for special working conditions. This is possible under the following conditions:
establishing the traveling nature of the work of the employee (employment contract/collective agreement, as well as the company’s local regulatory act, for example, the Order of the head on approval of the List of positions of employees whose permanent work is traveling in nature);
establishing the amount of compensation payments for the traveling nature of the work, order making such payments, forms of supporting documents (for example, the Regulations on the traveling nature of work, also approved by the Order of the head of the enterprise).
carry out compensation of expenses strictly on the basis of supporting documents determined by the local regulations of the enterprise, for example, the above-mentioned Regulations.
The payment of per diems is conditioned by the employee's residence outside the place of permanent residence for more than 24 hours (decision of the Supreme Court of the Russian Federation dated 04.03.2005 N GKPI05-147).