Gray wages are payments to employees, which are partially carried out bypassing official accounting. According to the documents, the employee is paid a salary (often it is equal to or slightly exceeds the minimum wage), taxes are withheld from him and insurance contributions are made, and the rest of the income is given in cash “in an envelope.” When gray wages are paid, the employer's liability will be no less than the employee's. The position of the regulatory authorities is that both parties to the labor relationship in this situation are guilty:

• the employee evades paying taxes by not declaring income and understating the tax base;
• the employer maintains double-entry bookkeeping and hides part of the transactions from regulatory organizations, violating labor laws.

The tax service may be interested in issues of remuneration at a particular enterprise if, according to 2-NDFL certificates, one of the employees, after a change of place of employment, began to receive income significantly lower than the previous level. The basis for verification may also be a discrepancy between the information submitted by the employer on personnel income to the Federal Tax Service and the information submitted by the individual to the bank when applying for a loan. The employee has the right to apply to regulatory authorities to check the employer and remove all earnings from the shadows.

Gray salary paid: employer's responsibility in 2018

The practice of paying gray salaries indicates that the employer artificially reduces the tax base for personal income tax and the amount on which insurance premiums are charged. Transferring money to an employee for work performed, bypassing the accounting department, is equivalent to incomplete payment of income. This action falls within the scope of regulation of Art. 122 and art. 123 Tax Code of the Russian Federation:

• the penalty for underestimating the tax base is 20% of the amount of arrears of taxes and fees (clause 1, article 122);
• in case of deliberate understatement of wages, the fine increases to 40% of the amount of tax arrears (clause 3 of Article 122);
• for failure to fulfill the employer’s obligations as a tax agent, he is assessed a fine equal to 20% of the amount that was not withheld when paying the entire amount of earnings to the employee (Article 123).

When gray wages are paid, the employer's responsibility may manifest itself not only in the payment of fines. Tax authorities have the right to charge a penalty for each day of delay in tax transfer (Article 75 of the Tax Code of the Russian Federation).

In addition, it is possible to bring administrative liability for distortion of financial reporting data under Art. 15.11 Code of Administrative Offenses of the Russian Federation - for guilty officials, a fine is provided in the amount of 5-10 thousand rubles. If the violation is repeated, the responsible persons are subject to a fine of 10-20 thousand rubles; an alternative punishment is temporary disqualification (the period is limited to an interval of 1-2 years).

The employer also faces a fine for violating labor laws on the basis of Art. 5.27 (30-50 thousand rubles in relation to legal entities, 1 – 5 thousand rubles for individual entrepreneurs).

If a gray salary is paid, the employer’s liability in the event of a large scale of such manipulations may also arise under criminal law. The regulation of measures of influence on the violator is prescribed in Art. 199.1 of the Criminal Code of the Russian Federation:

• the fact that the employer fails to perform the functions of a tax agent in full may entail a material penalty in the form of a fine (its amount is within the range of 100 - 300 thousand rubles, in case of violation on a particularly large scale, the amount of the fine increases to 500 thousand rubles);
• As a measure of influence, forced labor for a period of up to two years may be used in combination with a temporary ban on the official from holding certain positions;
• arrest for a total duration of up to six months.

Issuing salaries “in envelopes” can result in a criminal case. Fines for the general director and chief accountant can amount to 300 thousand rubles, and imprisonment for up to a year is also possible. How easy is it to prove the existence of such salaries and how can a bank assess the client’s risk level?

How tax authorities detect the payment of gray wages

• First of all, tax officials conduct a survey of former employees, receive information from job advertisements in the media and from “well-wishers” via hotlines. After which the employer is called to interdepartmental commissions, trying to force them to “whitewash” the salary. Such commissions include representatives of tax inspectorates, the Pension Fund of the Russian Federation, the Compulsory Medical Insurance Fund, the Social Insurance Fund, labor inspectorates, statistical authorities, employers' associations, local administrations, law enforcement agencies, and the prosecutor's office. They conduct explanatory conversations with the heads of companies whose employees receive wages less than the regional subsistence level. Based on the identified facts, the interdepartmental commission may decide on the need to increase wages to a certain level in a particular company.
• In another case, you are threatened with the arrival of a tax inspector with an on-site inspection. Of course, if tax officials present as evidence in court only the testimony of one former employee or only printouts of electronic versions of salary slips, then perhaps the court will recognize additional charges, fines and penalties as unfounded. If the inspection presents a large amount of evidence directly confirming gray salary schemes, the decision may not be made in your favor.
• So, how can you fight off arguments that your company seems to be paying unofficial salaries? (source - General Book No. 12)

Evidence that the tax authority can provide.	Conditions under which the court can accept evidence from the tax authority, and your counterarguments.
Primary documents and tax accounting documents
Pay slips, cash book, not officially recorded in accounting.	May indicate double accounting and understatement of the tax base only if: - belong exactly to the company being inspected and are filled in by authorized persons; - from them it is clearly visible to which specific citizens, in what amount and for what periods (months) the salary was paid. In turn, state that printouts and documents that do not have the signatures of officials responsible for issuing salaries and the signatures of the employees themselves, do not indicate that the company pays salaries “in envelopes”. Present your primary income as proof of payment of wages in the amount indicated in the reporting. Justify the amount of the small salary you are charging, for example, with the specifics of the company’s financial situation during the crisis period (for example, you reduced/did not increase salaries, wanting to save jobs).
Expense orders, bank checks, from which it is clear that the money was allegedly given to the employee on account, but in fact went towards “envelope” salaries.	Prove the fact of purchasing material assets with this money - provide contracts, payments, advance reports, receipt orders, invoices, supplier delivery notes, internal documents confirming the posting of these assets. Please also draw the court's attention to the fact that in the inspection's decision based on the results of the audit there are no references to the details of specific cash settlements on the basis of which the inspection established the concealment of income, and it is not clearly visible from them which amounts from the cash settlements were not closed by purchase. In addition, even if it is revealed that the counterparties from whom the goods were purchased are absent from the location indicated in the Unified State Register of Legal Entities, or the fact that they have failed to submit tax and accounting reports, this does not yet prove that your employee has appropriated the money issued under the report.
Certificates 2-NDFL with previous work of employees, indicating that they received a significantly higher salary than yours.	Receiving a high salary at your previous place of work does not mean that your organization pays part of the salary “in an envelope”. Sometimes people agree to take a lower paying job. Ask the court to call the employee as a witness so that the real reason and basis for his change of job can be revealed. It will also help to fill out a questionnaire at the job interview with questions about the reasons for the person changing jobs. Suppose an employee came to your company on less favorable financial terms, because he was interested in non-material criteria of the place of work (for example, work schedule, convenient location) or he urgently needed to find a job.
Witness's testimonies
Testimony from employees (including former ones) that they received a salary greater than the official one.	Protocols of interrogation of witnesses can be recognized as indisputable evidence that employees received wages in the exact amount based on which the tax authority assessed additional taxes only if: - they show the specific, and not the approximate, amount of income paid and the period for which the money was paid; - testimony from employees about the presence of double accounting of wages in the organization, as well as data on the amount of actual payments to employees were obtained during tax control, in particular a tax audit, and not as part of operational investigative measures; - there are no contradictions or inaccuracies in the testimony of witnesses; - the tax authority can prove that the witnesses were your employees and were questioned about the facts that took place during the audited period.
Printouts from electronic storage media.	The tax authority must prove the fact that the electronic storage medium was seized from you, and also that the submitted printouts were made specifically from your magnetic storage medium. That is, he must have properly completed seizure protocols. Please note to the court that the printouts do not belong to you, since they do not contain signatures of authorized representatives of your company or employees confirming receipt of the money. This might work.
Data about your organization from other sources
Announcements about your vacancies and proposed salaries in the media and the Internet; copies of salary certificates issued by the company for the bank or employment services.	Typically, courts do not accept information such as evidence of payment of income to employees and its amount. But if the court does consider such evidence, be prepared to refute it. In particular, job advertisements must relate to the period being reviewed. For example, a vacancy announcement published in 2012 cannot be evidence of the payment of unofficial salaries in the audited year 2010. It can be stated that the average salary certificates turned out to be overstated compared to what was paid by mistake. Support this with testimony from other employees.

• Now let's look at what can await a company that is suspected of paying employees salaries "in envelopes" or for which this has already been proven. (Source - General Book No. 12).

Consequences	Grounds
What is possible when you are only suspected of paying unofficial salaries
For example, tax authorities, the Social Insurance Fund, and the Pension Fund of the Russian Federation may come to the company with an inspection in order to determine the real amount of salaries. You will be called to the tax office for a commission on “salary” issues.	The interdepartmental commission will necessarily transfer materials on the taxpayer to the authorities competent to conduct inspections of the activities of entrepreneurs and organizations: (if) a tax audit or other activities are carried out in relation to the organization (entrepreneur) tax control (for example, additional measures to obtain evidence) - you don’t have to appear; (if) notification of the time and place of consideration of the materials of such inspections is received - it is advisable to appear or notify of the reasons for the impossibility of attendance; (if) there is a decision by the head of the tax authority to call a witness - You must appear, otherwise you may be fined.
Your company will not be able to become a tenant of municipal property if the employees have low official salaries.	In some municipalities, in the package of documents for leasing municipal property, you must also submit a certificate confirming the level of wages in the company.
What is possible when the payment of unofficial wages has already been proven?
The inspectorate can determine the amounts of taxes and contributions payable by calculation based on information about your organization and similar to her. In this case, the following will be charged: - for personal income tax - penalties and fines for failure to fulfill the duties of a tax agent - 20% of the amount of additional tax assessed. The amount of personal income tax must be collected from a citizen who received an unofficial salary, because the employer is only a tax agent.	Additional charges are possible only if the tax authority proves that the actual salary exceeds that reflected in the accounting and tax records. reporting. You can try to challenge tax fines in court, refuting the validity of: (or) selection of a similar taxpayer to determine the amount of taxes payable. For example, draw the court’s attention to the fact that the company with which you are being compared, although it conducted activities similar to yours during a certain period, has a different staffing level workers; (or) application of the calculation method to personal income tax. Indeed, according to current legislation, the calculation method for determining the amount of taxes should be applied exclusively to taxpayers.
For accident insurance premiums - the premiums themselves, penalties and fines for non-payment - 40% of the unpaid amounts.
According to the Unified Social Tax (for the period up to 2010) - the tax itself, penalties and fines - 40% of arrears.
Insurance premiums (for the period after 2010) - the fees themselves, penalties and fine for willful non-payment contributions - 40% of additional accrued amounts.
What shouldn't happen
Administrative responsibility: - for failure to attend meetings of interdepartmental “salary” commissions; - for violation of labor laws.	Administrative liability cannot be applied because: - the interdepartmental commission is not a supervisory body, cannot issue orders and requirements, its decisions are advisory in nature; - the employee’s salary is paid in the amount of: - specified in the employment contract concluded with the employer; - not lower than the federal minimum wage or established in a regional agreement, if the employer signed it or did not refuse to join it.
Criminal liability of the manager, chief accountant for non-payment of wages.	Criminal liability cannot be applied - the salary is paid, although part of it is hidden “in an envelope”.
Refusal to participate in a tender/auction for a state/municipal order.	The requirements for participants in such an event, as well as among the grounds for refusal, do not indicate an inappropriate level of remuneration.

• The payment of wages in an amount less than the minimum subsistence level established in the region is not punishable, provided that: the federal minimum wage is observed; the organization has not joined the regional minimum wage agreement.

For the payment of a gray salary personally, the manager cannot be held either administratively or criminally liable, however, the organization itself may be subject to additional taxes and fees, as well as penalties and fines. Therefore, when assessing the client’s risks, it is advisable for the bank to accept these risks as “general” and not focus special attention on this.

The article provides answers to pressing questions about the employer's responsibility for paying wages in an envelope, as well as what arguments are accepted by the courts as evidence of the payment of gray wages.

Which government agencies may be interested in the nature of salaries?

Currently, two regulatory authorities can check the payment of gray wages at once - tax inspectorates (for the purpose of additional personal income tax assessment) and extra-budgetary funds (for the purpose of identifying arrears in insurance premiums). This means that the company can seriously pay for paying “gray” wages.

Responsibility

Non-payment of taxes:

a fine of 20% of the amount of personal income tax subject to withholding or transfer to the budget (Article 123 of the Tax Code of the Russian Federation and Letter of the Ministry of Finance of Russia dated March 19, 2013 No. 03-02-07/1/8500);

if the payment of “gray” wages is revealed as a result of an audit, the company may be brought to administrative liability (Article 15.11 of the Code of Administrative Offenses of the Russian Federation);

• and in some cases, to criminal liability (Article 199.1 of the Criminal Code of the Russian Federation), but this is extremely rare.

Note: the application of penalties does not relieve the company from the obligation to transfer the withheld tax amount to the budget! (clause 5 of article 108 of the Tax Code of the Russian Federation).

Non-payment of insurance premiums:

a fine of 20% of the unpaid amount of insurance premiums (Article 47 of the Federal Law of July 24, 2009 No. 212-FZ);

if the organization deliberately underestimated, then the amount of the fine will increase to 40% (parts 1 and 2 of Article 47 of the Federal Law No. 212-FZ, clause 2.2 of the Methodological Recommendations approved by the Order of the Board of the Pension Fund of Russia dated 05.05.2010 No. 120r);

penalties (Part 1, Article 25 of Federal Law No. 212-FZ).

What will be the proof of payment of “gray” wages?

1. Unofficial statement

Often, companies record the issuance of gray salaries in an unofficial statement. At the same time, inspectors believe that such a statement is evidence of payment of part of the salary “in an envelope,” and judges often agree with them. Thus, payroll and pay slips containing all the necessary data for calculating real wages, cash receipts, employee signatures when receiving money, as well as the signatures of the manager and chief accountant confirm the payment of unaccounted income (Determination of the Supreme Arbitration Court of the Russian Federation dated March 23, 2012 N VAS-2574/ 12). However, in this case, it is not just the presence of these documents that is important, but the presence of signed documents.

An unofficial statement can confirm the payment of a gray salary if:

the statement is not the only evidence, and the fact of gray payments is confirmed by the totality of evidence;

the statement is signed by the appropriate persons (director, employees, etc.) or certified in another way, such as a seal;

the document, although not drawn up in accordance with the form, reliably confirms the fact of double-entry bookkeeping and payment of gray wages. For example, the court accepted as appropriate evidence a notebook containing dates and personal signatures of employees on their receipt of funds, which is adequate evidence of the payment of unofficial wages by the company.

Courts refuse to accept an unofficial statement as confirmation of payment of gray wages in the following cases:

despite the presence of an unofficial statement, employees were not questioned by the tax inspectorate, and the statement was not signed by them;

the documents do not contain mandatory details and cannot be considered adequate evidence;

the document was received in violation of the procedural procedure, for example, outside the scope of tax control;

a statement without the signatures of employees, the general director or chief accountant, as well as without the name of the company, will not be taken into account by the court.

2. Protocols of interrogation of employees

The testimony of employees is a valid basis confirming the payment of unofficial wages, but only in conjunction with other evidence (Determination of the Supreme Arbitration Court of the Russian Federation dated March 23, 2012 No. VAS-2574/12). At the same time, the protocols of interrogation of former employees are not always the basis for bringing the company to tax liability; for example, the court did not accept the testimony of a witness as proper evidence of payment of gray wages, since the person was dismissed under Art. 81 of the Labor Code of the Russian Federation for absenteeism. And also if a minority of current employees admitted to receiving “envelopes”, or the testimony is contradictory, then this circumstance does not yet constitute evidence of the company’s evasion of payroll taxes.

Interrogation (survey) protocols do not always guarantee victory in court; for example, protocols must meet formal requirements, since their absence gives grounds to declare their illegality, and therefore inadmissibility as evidence in court. According to Art. 99 of the Tax Code of the Russian Federation the document indicates:

Name;

position and full name originator, place, date, start and end time of the survey;

revealed facts, full name and the signature of each participant (address, citizenship if necessary).

The Federal Arbitration Court of the East Siberian District at one time did not accept the surveys as evidence because they did not contain the passport details of the witnesses and their residence at the indicated addresses was not confirmed.

3. Job advertisements

Practice shows that “gray” wages can also be given out by vacancy announcements (Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated April 17, 2009 No. A82-12214/2007-27). Again, such evidence is accepted by the court only along with others, otherwise the court may say that the advertisements contain an approximate level of earnings, and the actual amount may be higher or lower than stated (Resolution of the Federal Antimonopoly Service of the Ural District of 04/08/2009 N F09-1768/09 -C3).

If you find a vacancy announcement on a website, you must have the printed advertisement notarized. If you use a printout of the Internet page as evidence without notarization, you must provide the court with the opportunity to view the Internet page at the court hearing, i.e. Bring to court a laptop with Internet access and simultaneously submit a request to review the Internet site and to include a printout of the Internet page on paper.

4. 2-NDFL

This certificate, submitted to obtain a loan or loan, if the amount of income in it exceeds the official salary, will also alert the inspectors. However, according to the judges, the amount of income reflected in the certificate is not evidence of its actual payment by the employer (Resolution of the Federal Antimonopoly Service of the North-Western District dated December 7, 2010 No. A56-38852/2009).

5. Other evidence

If the salary of employees at their previous place of work was significantly higher, then this is one of the arguments in favor of gray payments (Resolution of the Federal Antimonopoly Service of the Ural District dated October 30, 2008 No. F09-12287/06-S2). Finally, other indirect evidence may indicate the payment of unofficial income. This, in particular, is a significant and one-time increase in salaries, withdrawal of accountable amounts on the day of salary payment, and purchase by employees of expensive property that they cannot purchase with their official salary.

What about the workers?

At the initiative of the employee, the company may also be punished for paying “gray” wages. To do this, the employee just needs to file an application with the court for payment of wages if the company suddenly stops paying them. In this case, if the presence of “gray” payments is proven, the employer will be punished not only by the actual payment of all wages due to the employee, but also he will face liability under Art. 5.27 Code of Administrative Offences.

The rule in court is that the parties prove what they refer to independently. The employee will have to prove that he was paid wages, and the employer will have to prove that he did not. So, the employee most often uses all the same evidence that was described above (except for the protocol). But obtaining this evidence will be more difficult - it is unlikely that the employer will put a slip with unofficial wages on the employee’s desk. In this case, the employee’s evidence base is unlikely to be complete; often there is no body of evidence so important for the court to make a decision not in favor of the employer. For example, the court does not even accept testimony as evidence if the employee proves that he was paid “in an envelope.” And he justifies this by the fact that the persons giving testimony speak, as a rule, for themselves, saying that they were specifically paid “gray” wages. When the court asks: “Did you see how the employer transferred money as a salary in “such and such” amount to the plaintiff?”, these persons can only say: “No,” since employers do not give out such payment openly, saying everyone about who, for what and how much money he gives out.

What else can an employee use? Pay slips and envelopes. But often it is not indicated on the envelope that the salary should be there in such and such an amount, and the payslips are not signed by either the director or the chief accountant. Of course, in the general body of evidence, such envelopes can be used, for example, if they at least indicate the full name of the employee, and pay slips, if the employer and employee are also indicated there, even without signatures, but if such evidence is used independently, the court will not make a decision in favor of the employee.

An employee may feel violated in his rights not only when he is no longer paid his salary “in an envelope,” but also, for example, when an employee goes on maternity leave or staff reductions occur. After all, maternity benefits and severance pay are paid from official earnings. And it’s good if the organization pays the employee extra “out of its own pocket” so that he goes to court, otherwise the employee will try to prove the company’s “black accounting”.

At the moment, judicial practice is such that it is difficult for government agencies and employees to prove the payment of “gray” wages. No matter how aware the courts are that a company is indeed engaged in “black” bookkeeping, they cannot rule against it without adequate evidence. So, employers should be more careful in settlements with employees, in maintaining their accounting, and signing documents. Employees should understand what kind of work they are doing and with what pay, and either prepare in advance for the fact that they may have to defend their rights in court, collecting bits and pieces of evidence of payment of “gray” wages.

One of the most important tasks of a commercial enterprise is efficiency, and as part of its solution it is necessary to pursue a policy of economy. Thus, every company tries to save on employee salaries, but here the balance between their level and savings is usually important, because the more qualified and valuable the employee, the higher his demands.

One of the common ways to save is black wages.

When paying it, there is no need to pay to the budget and various funds. And usually a considerable part of the funds goes there. Next, we will examine in detail what mechanisms exist to bypass these deductions, what the consequences of their use are for the employer and the employee himself, as well as what should be done to get your money. After all, the fact that the employer, if it has not been formalized, is not so easy to prove.

First, you should take a closer look at the phenomenon of unofficial payments: wages are divided into three types: “white”, “gray” and “black”, and then we will analyze each of them.

• White is completely official; all required payments to the budget and funds are made from it. If you get exactly this, then there are no problems on this side.
• The black one is issued bypassing official papers, this is called issuance “in envelopes”, thus indicating that the employer is hiding the very fact of payments from the tax service.
• Gray is a combination of the two previous types, that is, part of the earnings is paid officially, and the other is paid extra “in an envelope.” All statements indicate payments in one volume, but in reality they are made in another.

Sometimes the importance of the fact that wages are not formalized is underestimated by citizens. At the same time, they proceed from the fact that they pay on time, consistently, in the amount agreed upon - what more could you want? Moreover, those who receive a “gray” salary tend to turn a blind eye to the significance of manipulations with legislation, since it is formalized, and the difference between the formalized and the real one can be perceived as a kind of additional payment. But in both cases the responsibility is significant, and the risks are great.

Consequences for the employee

For employees to agree to this, gray and black salaries must have not only disadvantages, but also advantages. Let's look at them first:

• Since not everyone is able to find a job with decent pay, some have to make similar deals with the employer if this is required to increase their income. The fact is that reducing the tax burden allows the company to pay the employee more.
• The citizen himself will not have to pay at all if we are talking about a “black” salary, and will have to pay less if it is a “gray” salary: still, 13% is not such a small saving.
• Unofficial income will not be taken into account.

But it is unlikely that these benefits themselves outweigh the numerous disadvantages, and therefore, as practice shows, first of all, the initiative comes from the employer, and the employees themselves are only forced to agree, being presented with a choice - either to accept this attitude without complaint, or to lose their job altogether. What are the disadvantages of unofficial payments?

• They can be terminated at any time, and unlike official payments, it will not be possible to recover compensation for this.
• If an employee gets sick, sick leave will be calculated based on his white salary - that is, he will receive less, or even nothing at all. The same applies to maternity leave, as well as subsequent ones.
• The same is with a pension - its size will be greatly affected by the fact of unofficial payments, because deductions from them do not go to the Pension Fund. You should always remember exactly this: the employer saves first of all directly on his employee, and the 50,000 paid unofficially should not be equal to the same amount that is paid officially.
• In the complete absence of official wages, there will be no work experience.
• If an employee has a low salary or no salary at all, he will have problems obtaining loans and visas.
• Social guarantees will be much lower, and it will become easier to fire an employee. If the salary is negligible, then all relations with the organization are not regulated by law at all and are in fact built solely on faith - the very first conflict, and the employee may lose his job without any additional payments.
• Do not forget about the responsibility of the recipient himself before the law - if contributions to the funds must be made by the employer, then personal income tax is paid directly by the employee, which means he will have to bear responsibility for non-payment.

Consequences for the employer

First of all, the initiative to pay wages unofficially comes from the employer.

The reasons for this are obvious: every company bears a serious tax burden and, in addition to the actual payments to its employees, must pay large amounts of money to the budget and funds. If the wages of its employees are lower, then these payments, calculated as a percentage of it, will also be lower. Therefore, there is a great temptation to reach an agreement with employees that at least part of the payment will be made to them, bypassing the supervisory authorities. Thus, the advantages will be as follows:

• Decline.
• Reducing social security costs for employees.

The list is small, but both points are extremely important. Flaws? If the fact of deliberate understatement or concealment of payments is revealed in accordance with Article 123 of the Tax Code, it will be necessary to pay 20% of the amount subject to withholding. The punishment would be completely ridiculous, but Article 5.27 of the Code of Administrative Offenses also adds to this fines for violation of labor laws: from 1,000 to 5,000 rubles for an official and individual entrepreneur, from 30,000 to 50,000 for a legal entity.

However, these fines are not severe enough to deter employers from violating the law, and therefore further we will talk about what an employee should do if he is paid unprofitable wages or if they are no longer even paid at all.

What should the employee do?

Many citizens, having lost their jobs, did not receive the money they were due precisely because part of their wages or even all of them were paid bypassing taxes . Often they don’t even know where to start the proceedings in order to still return the money - and therefore we will start by covering exactly this.

Filing a complaint

You need to start by contacting government agencies designed to deal with such situations. First of all, this is Rostrud, that is, the Federal Service for Labor and Employment. You can make a personal appeal or apply through the official website of the service - https://www.rostrud.ru. In addition, a complaint can also be made to the prosecutor's office, tax and police - samples are attached to the article. Please note that the appeal can also be anonymous - although a personal one will have an effect faster, since those are the ones who are dealt with first. An inspection is usually carried out regarding the application, during which the employer will have to prove that he charges wages exclusively legally.

If a conflict arises with the employer, you can also file an application in court - this is usually done to prove the amount of money received. Proving this will not be so easy due to the fact that it was paid unofficially, but it is possible. Next, we will look at exactly how to prove that the salary was paid in an envelope.

How to prove the existence of an unofficial salary

Proving the fact of receiving some other payments, in addition to the “white” salary, is usually the most difficult.

It is best if the employee has the relevant papers, notes during conversations with the employer or accountant, and similar evidence, which can be used to clearly and unambiguously establish the fact of payments bypassing taxes and impose punishment. Testimonials from other workers and even recruitment advertisements promising higher wages than listed on the payroll will also help. But the court will be guided only by the totality of evidence. Filing a class action lawsuit will also help; other things being equal, it will be perceived by the court with more favor than a lawsuit from one employee.

Arbitrage practice

Plaintiff R.N. Abramov filed a claim against the Glavinstrument company for the recovery of unpaid wages, as well as corresponding compensation. The basis for the appeal was that the salary was not paid to the plaintiff in the full amount established.

The plaintiff himself did not appear in court, but his representative supported the demands. In addition, he added that the plaintiff previously worked at the Metalplast enterprise, which was then replaced by a new one, Glavinstrument. After its formation, the employees were told that since the enterprise had just been formed, they needed help, namely, to officially agree to a salary lower than before, but the rest had to be paid extra, bypassing taxation, that is, “in an envelope.” In the end, the plaintiff never received this unofficial part.

After presenting the case materials - payroll and pay slips, the court found a violation in terms of dismissal in the form of untimely payments. However, the court was critical of the amount of his salary indicated by the plaintiff. Witnesses confirmed the division of payments at the enterprise into “black” and “white”, but the plaintiff’s arguments about the amount of wages he was entitled to were never confirmed by concrete evidence.

The court ruled that the company had no debt to the plaintiff, since the calculation should be based on official documents. Thus, it was decided to partially satisfy the claim: to recover from the enterprise, as well as for the delay in its payment. The part about unpaid wages was refused, since the presence of this unpaid part was not recorded in official papers. Thus, the return of “black wages” if the employer refused to pay it is usually fraught with difficulties. The entire case can be viewed here.

In any organization, wages and social contributions are a significant part of the costs, so in order to reduce staff costs, employers hide part of the wage fund from taxes. Personal income tax (NDFL) is withheld from the official salary of all employees. The obligation to pay tax on wages paid to employees rests with the employer.

The personal income tax rate in Russia is one of the lowest - 13%. However, in addition to personal income tax, the employer is obliged to transfer insurance contributions to extra-budgetary funds to the budget, the amounts of which are very high. All this forces employers to pay wages “in an envelope”. In the letter of the Federal Tax Service of Russia for the city of Moscow dated 08.08.2007 No. 15-08/075418 (hereinafter referred to as the letter of the Federal Tax Service of Russia for the city of Moscow No. 15-08/075418) it is reported that payments to employees that are not taken into account for tax purposes are called by the tax authorities " shadow" or "gray" wages. Varieties of such wages are: unofficial wages, mainly issued “in envelopes”, insurance premiums and annuities paid through insurance companies (less common), as well as a number of other forms of hidden remuneration for labor. In our country, the practice of paying so-called gray wages is widespread; employers have developed many so-called optimization schemes.

Tax authorities are actively combating this situation and may pay attention to an organization if:

1) employee wages are below the subsistence level in the region, below the average market level (for a specific region), below the industry average wage;

2) the salary level of management according to official documents is lower than the earnings of ordinary employees;

3) information was received that the company makes wage payments “in envelopes” (for example, an anonymous call);

4) the employee’s salary at the new place of work is lower than at the old one (according to 2-NDFL certificates), that is, he changed jobs on less favorable conditions;

5) the employee provided the bank with certificates for obtaining a loan, which contain a larger amount of wages than in the actual report for a specific organization.

Let’s figure out what the consequences of paying wages “in an envelope” are to the employee and the employer.

CONSEQUENCES FOR THE COMPANY AND PERSONS RESPONSIBLE

What threatens an employer who issues wages “in an envelope” and does not withhold or pay personal income tax on it?

In accordance with paragraph 4 of Art. 226 of the Tax Code of the Russian Federation, the tax agent withholds personal income tax from the actual cash payments of the taxpayer or a third party on behalf of the taxpayer. The company may act as a withholding agent if it makes any payments to individual recipients of prizes, and if recipients of prizes instruct the company to make any payments to third parties.

According to Art. 122 of the Tax Code of the Russian Federation, non-payment or incomplete payment of tax (fee) amounts as a result of understatement of the tax base, other incorrect calculation of tax (fee) or other illegal actions (inaction), if such an act does not contain signs of a tax offense under Art. 129.3 of the Tax Code of the Russian Federation, entails a fine in the amount of 20% of the unpaid amount of tax (fee). But if non-payment or incomplete payment of tax (fee) amounts as a result of understatement of the tax base, other incorrect calculation of tax (fee) or other unlawful actions (inaction) are committed intentionally, this entails a fine in the amount of 40% of the unpaid amount of tax (fee) .

If tax officials have evidence of payment of salaries in “envelopes,” they will not ignore it. The tax inspectorate will ask from what income the company pays wages in “envelopes”. After all, this means that the sale or service from which the income was received is not shown (if the company is under the general tax regime, it had to pay VAT and income tax, and if under the simplified tax system, then the tax paid in connection with the application of the simplified tax system).

For your information. Managers of companies that pay wages lower than the industry or regional average may be called to a “salary” commission, which includes tax officials and municipal officials. Many heads of organizations, after being called to a commission, usually increase wages. If the commission’s convictions do not work, the company may face an on-site inspection.

The following consequences of using “gray” wages are possible for the organization:

1) full on-site inspections of departments such as the tax inspectorate, internal affairs department, prosecutor’s office, Social Insurance Fund and others, during which numerous errors will be identified that relate not only to wages;

2) accrual of taxes payable, which the organization will be obliged to pay (calculation is made on the basis of information about the taxpayer available at the tax office);

3) accrual of penalties and fines for intentional non-payment of taxes.

The consequences of paying wages “in an envelope”, in addition to the organization, are reflected in the manager, chief accountant, as well as other employees who were involved in the preparation of primary documents. In this case, they are recognized as accomplices and Art. 199 “Evasion of taxes and (or) fees from an organization” of the Criminal Code of the Russian Federation.

In accordance with Art. 199 of the Criminal Code of the Russian Federation, evasion of taxes and (or) fees from an organization by failure to submit a tax return or other documents, the submission of which in accordance with the legislation of the Russian Federation on taxes and fees is mandatory, or by including in a tax return or such documents knowingly false information, committed on a large scale, is punishable by a fine of 100 thousand rubles. up to 300 thousand rubles. or in the amount of wages or other income of the convicted person for a period of one to two years, or forced labor for a term of up to two years with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years or without it, or arrest for a term of up to six months, or imprisonment for a term of up to two years with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.

The same act, committed by a group of persons by prior conspiracy or on an especially large scale, is punishable by a fine of 200 thousand rubles. up to 500 thousand rubles. or in the amount of wages or other income of the convicted person for a period of one to three years, or forced labor for a term of up to five years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it, or imprisonment for a term up to six years with or without deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years.

CONSEQUENCES FOR WORKERS

There is an opinion that not only managers can be called to “salary” commissions, as has happened and is still happening, but also employees due to the focus of such commissions on identifying non-payment of personal income tax. However, in the letter of the Federal Tax Service of Russia dated December 2, 2009 No. 3-5-04/1774 (letter of the Federal Tax Service of Russia No. 3-5-04/1774), the tax authorities reported that they do not plan to call employees of “problem” organizations to the meetings of the mentioned commissions of the Federal Tax Service of Russia. At the same time, it is noted that an employee who received income from which tax was not withheld by the employer (tax agent) is obliged to independently declare such income at his place of residence before April 30 of the next year and pay it independently by July 15. Otherwise, he bears responsibility under the legislation of the Russian Federation. It follows from this that the obligation to pay personal income tax (13% of salary) lies with the citizens themselves, and the fact that the employer for some reason did not transfer it does not relieve employees from responsibility, since
as in accordance with paragraph 1 of Art. 228 of the Tax Code of the Russian Federation, the obligation to calculate and pay personal income tax is also assigned to individuals in relation to income upon receipt of which personal income tax was not withheld by tax agents.

The tax agent cannot withhold the calculated amount of personal income tax when paying income to the taxpayer, for example, in the case when such income is paid in kind. If such a situation arises, the tax agent is obliged, no later than one month from the date of the end of the tax period in which the relevant circumstances arose, to notify the taxpayer and the tax authority at the place of his registration in writing about the impossibility of withholding the tax and the amount of the tax, and the taxpayer must pay personal income tax after delivery of the tax inspectorate notifications. The tax notification form was approved by Order of the Ministry of Taxes of Russia dated July 27, 2004 No. SAE-3-04/440@. As indicated in the letter of the Ministry of Finance of Russia dated April 17, 2009 No. 03-04-05-01/225, in the event of failure to receive a tax notice, the taxpayer, at the end of the tax period, independently fulfills the tax obligation to pay the tax amount.

In letter dated 02.12.2009 No. 3-5-04/1774, the Federal Tax Service of Russia reminds: if a taxpayer obliged to submit a personal income tax return does not submit it, then he bears responsibility in accordance with clause 1 of Art. 119 of the Tax Code of the Russian Federation in the form of a fine in the amount of 5% of the unpaid amount of tax subject to payment (additional payment) on the basis of this declaration, for each full or partial month from the day established for its submission, but not more than 30% of the specified amount and not less than 1000 rub. In addition, the letter of the Federal Tax Service of Russia dated December 2, 2009 No. 3-5-04/1774 states that Art. 198 of the Criminal Code of the Russian Federation establishes criminal liability of an individual for evasion of taxes and (or) fees by failure to provide a tax return or other documents, the provision of which is mandatory in accordance with the legislation of the Russian Federation on taxes and fees, or by knowingly including in a tax return or such documents false information. So, according to Art. 198 of the Criminal Code of the Russian Federation for the specified offense committed on a large scale, to an individual
faces a fine of 100 thousand rubles. up to 300 thousand rubles. or in the amount of wages or other income of the convicted person for a period of one to two years, or arrest for a term of four to six months, or imprisonment for a term of up to one year. The same act, committed on an especially large scale, is punishable by a fine in the amount of 200 thousand to 500 thousand rubles. or in the amount of wages or other income of the convicted person for a period of 18 months to three years, or by imprisonment for a term of up to three years.

For your information. A large amount is an amount of taxes and (or) fees that amounts to more than 600 thousand rubles for a period within three financial years in a row, provided that the share of unpaid taxes and (or) fees exceeds 10% of the amounts of taxes and (or) fees payable. fees, or exceeding 1 million 800 thousand rubles, and a particularly large amount - an amount amounting to more than 3 million rubles for a period within three financial years in a row, provided that the share of unpaid taxes and (or) fees exceeds 20% of the due payment of taxes and (or) fees, or exceeding 9 million rubles.

Persons who have committed the crime of evading taxes and (or) fees from individuals for the first time, in accordance with Art. 198 of the Criminal Code of the Russian Federation are exempt from criminal liability provided that they have fully paid the amount of arrears and the corresponding penalties, as well as the amount of the fine in the amount determined in accordance with the Tax Code of the Russian Federation.

If the tax authority, as a result of a tax audit, reveals that the specified crime has been committed, then it is obliged to warn the taxpayer about sending materials to the internal affairs bodies to resolve the issue of initiating a criminal case in case of failure to pay arrears, penalties and fines in full.

In addition, employees who receive salaries “in an envelope” deprive themselves of pension savings, as well as the right to use tax deductions in full (letter of the Federal Tax Service of Russia No. 3-5-04/1774).

Thus, the personal income tax arrears will be withheld from the employee’s income. We also draw your attention to the fact that, in accordance with the bill on amendments to the Criminal Code of the Russian Federation, an employee who agreed to pay “gray” wages is liable before the law on an equal basis with the employer for such actions.

GOLDEN MEAN

What should the salary be so that both employees and employers can sleep peacefully and not have to go to “salary” commissions? According to tax officials, which was expressed in a letter from the Federal Tax Service of Russia for Moscow No. 15-08/075418, the official wages of employees should not be lower than the industry average. Therefore, those organizations in which the official wages of employees are below this level come under the close attention of the tax authorities and, as a rule, additionally are paid money that is not taken into account in the tax base, that is, hidden from taxation.

But we should not forget that any phenomenon has “two sides of the coin.” When resolving the issue with the “salary” commission and increasing wages, there is a risk of finding yourself a candidate for a visit to an unprofitable commission. The letter of the Federal Tax Service of Russia for Moscow No. 15-08/075418 focuses on the fact that the function of the tax authorities is not to increase wages for employees of the organization, but to bring hidden forms of remuneration out of the shadows. Thus, the calculation and payment of wages below the market average or below the subsistence level in itself is not a violation of the law and does not entail negative consequences. If an organization has clear arguments about why it pays its employees little (for example, the current financial situation in the organization), then no questions will arise.

It should be noted that when considering such cases, the court carefully considers all inspection evidence (even indirect). And if she manages to collect enough evidence, then most likely the court will side with the inspectorate.

When considering cases, the court involves workers as witnesses, asking them questions about wage payments. It must be remembered that there is criminal liability for giving false testimony.

Workers who receive salaries in an “envelope” also have a chance of going to prison. If employees are admitted to receiving “gray” salary payments, they may be accused of colluding with the employer, since, according to the logic of the tax authorities, an employee who receives a salary “in an envelope” knows that the company is underpaying personal income tax. At the same time, a company that has not paid tax on an employee’s salary in this case acts as a tax agent and only risks paying a penalty for late deduction of these funds to the budget.

K. Yu. Muchkaev, Deputy Chief Accountant