Issues related to remuneration are the most pressing in the practice of personnel management. And no wonder: size wages- a mandatory condition that you must indicate in the employment contract with the employee ( part two art. 57 Labor Code of the Russian Federation). However, the law does not tell us what exactly we need to pay attention to when prescribing it. How to indicate the terms of remuneration in a contract? Who can be paid in foreign currency? Will this be a violation and in what cases?

We indicate the terms of payment in the contract

As you know, wages include all payments that an employee receives for work performed (salary, bonuses, allowances, etc.) ( Art. 129 Labor Code of the Russian Federation). Salaries must be transferred to the employee at least twice a month ( Art. 136 Labor Code of the Russian Federation). However, it can only be paid in rubles ( part one art. 131 Labor Code of the Russian Federation). The law does not indicate that this requirement also applies to the determination of remuneration. Hence, it is impossible to pay, and not assign wages in foreign currency . At the same time, the law distinguishes separate categories workers whose work can be paid not in rubles (see diagram).

* Decree of the Government of the Russian Federation of December 26, 2005 No. 812.
** Article 19 Federal Law dated July 19, 2011 No. 247-FZ.
*** Article 2 of the Federal Law of November 7, 2011 No. 306-FZ.

Mandatory clauses must be included in the employment contract with the employee - these are the terms of remuneration, which include, among other things, the amount of the tariff rate or salary (official salary) of the employee, bonuses and incentive payments ( Art. 57 Labor Code of the Russian Federation). In addition, write down additional payments if the employee is entitled to them, for example, an allowance for high professionalism or an academic degree. The employment contract must establish the days for payment of wages and the payment procedure ( Art. 136 Labor Code of the Russian Federation). As well as the conditions under which the employee’s wages can be paid by the employer at the cash desk or transferred to the bank account specified by the employee (see sample).

When discussing wages with an employee when hiring, focus his attention on the fact that the amount of wages in the employment contract is established before taxes are paid.

Why you can’t set salaries in foreign currency

Before 2006, many employers set employee salaries in dollars. At that time, foreign exchange was constantly increasing and thus the salaries of employees increased along with it. Therefore, the inspection authorities turned a blind eye to the fact that employers did not act in accordance with the law. When the foreign exchange rate began to fall, the interests of workers were violated. Then Rostrud began to actively fight against violators. Therefore, already in 2006, most employers revised their staffing schedules, indicated salaries in rubles and reflected these changes in other local acts and employment contracts.

Rostrud explained that wages for employees must be set according to the rules of the Labor Code (Article, Labor Code of the Russian Federation). If an organization determines payment in foreign currency, but pays it in rubles, then this may violate the rights of employees due to changes in exchange rates. In addition, when calculating wages, the employer must fill out unified forms for recording labor and its payment, in which amounts are indicated only in rubles.

This is another reason why charging wages in foreign currency is not recommended.

If the employer is for performing the same job responsibilities will pay the employee a salary, the amount of which changes along with the exchange rate, he will also violate the requirements of the law (Article, Labor Code of the Russian Federation), which may lead to administrative liability ( Art. 5.27 Code of Administrative Offenses of the Russian Federation).

We regulate wages in a foreign company

Foreign companies and organizations with a large percentage of foreign capital often plan their activities and account for financial performance in the currencies of their countries. Therefore, they also initially calculate employee salaries not in rubles. It is also important for many foreign workers that the payment for their work activities is reflected in currency. This makes it easier for them to understand how much income they can get from their work.

Companies that denote income in foreign currency to their employees can set its internal rate, based on which employees will the difference arising due to exchange rate fluctuations is reimbursed. In this case, salaries are paid only in rubles ( Art. 131 Labor Code of the Russian Federation). To do this in local normative act, for example, the Regulations on Compensation, the average exchange rate of the currency to the ruble is fixed for a certain period of time (for example, six months) and all payments that the employee receives (salary, payment for children’s education, rent, moving expenses, etc.) are calculated on it. The course is then reviewed every six months and changed if necessary. To account for currency fluctuations, it is convenient to maintain a monthly table of compensation for each employee. In case of wage losses due to exchange rate differences, employees are paid quarterly.

Attention!

Salaries are prohibited from being paid:
in foreign currency; in booms;
in coupons; in receipts;
in the form of alcoholic beverages;
in the form of items that are prohibited or limited in free circulation (Article 131 of the Labor Code of the Russian Federation)

Example.

Steve K., an employee of a representative office of a Western company, is entitled to a salary of $1,000. Upon conclusion employment contract in Russia, his salary was set in rubles. At the same time, the local act of the organization provides for wage indexation, which is carried out every six months and depends on fluctuations in the dollar exchange rate.

Is it possible to pay salaries to foreigners in rubles?

Issuance of wages to foreign citizens in Russian rubles is a currency transaction (clause , , , , sub. "b" clause 9, part 1, part art. 1 of Law No. 173-FZ). But at the same time, in Russia there is no ban on paying non-resident foreigners in Russian currency.

There are no special requirements or restrictions for performing this operation ( Art. 6 of Law No. 173FZ). Accordingly, an employer cannot be fined for violating currency laws by paying wages to foreigners in rubles ( Part 1 Art. 15.25 Code of Administrative Offenses of the Russian Federation).

Attention!

The transfer of wages in foreign currency is recognized as a foreign exchange transaction. Responsibility for this violation is provided for in Art. 15.25 Code of Administrative Offenses of the Russian Federation

What does the employer risk if the salary is set in foreign currency?

Expenses incurred by the employer to pay employees reduce the tax base for income tax ( Art. 255 Tax Code of the Russian Federation). It should be noted that for the purposes of this tax, any expenses must meet the requirements and be documented ( Art. 252 Tax Code of the Russian Federation). This means that the text of the employment order must comply with the provisions of the employment contract ( part one art. 68 Labor Code of the Russian Federation). And the primary documents for labor accounting and payment of wages, confirming expenses, are maintained in the established form (according to forms, approved Resolution of the State Statistics Committee of Russia No. 1). It is not possible to make corrections to forms approved by Goskomstat. Moreover, the Russian Ministry of Finance gave clarifications that since accounting in Russia is carried out in rubles (clause 1 art. 8 of Law No. 129-FZ), indication in primary documents salaries in foreign currency or conventional units can be regarded as a violation, for which liability is established in the form of a fine in the amount of 10,000 rubles ( Part 1 Art. 120 Tax Code of the Russian Federation).

Remember the main thing

Note the experts who took part in the preparation of the material:

Maria OSETSKAYA,

State labor inspector of the State Labor Inspectorate in Moscow:

– Remuneration is one of the mandatory conditions of an employment contract. Include in the contract all the terms of remuneration: the amount of official salary, additional payments, allowances and bonuses, the method of payment of wages and the days of their issuance, indicate that it is paid in foreign currency Russian Federation.

According to Article 131 of the Labor Code of the Russian Federation, salaries must be paid in cash in the currency of the Russian Federation (in rubles). When concluding an employment contract with a foreign worker, as a highly qualified specialist, the amount of remuneration is determined in foreign currency, indicating that the salary will be paid to the employee in rubles at the exchange rate of the Central Bank of the Russian Federation on the day of payment by bank transfer to the employee’s bank account, the choice of which is agreed upon between the employee and the employer. Please clarify: 1. Is it a violation if wages are calculated in rubles at the exchange rate on the day of payment, and the transfer to the employee’s bank account is made in foreign currency?2. If such a condition is a violation, what liability can be applied to the employer?

The payment of wages in foreign currency is recognized as a foreign exchange transaction. Based on the terms of your question, we assume that your organization is a resident for the purposes of foreign exchange laws. In this case, if this employee is a resident for the purposes of currency legislation (namely, a foreign citizen permanently residing in the territory of the Russian Federation), then for issuing his salary in foreign currency, the organization bears administrative responsibility for violating foreign exchange legislation, since foreign exchange transactions between foreign currency residents prohibited. Also, an administrative fine may be imposed on the organization and its officials for violating the Labor Code of the Russian Federation, since the Labor Code of the Russian Federation prohibits the payment of wages in foreign currency.

If the employee is a foreign currency non-resident (a foreign citizen temporarily residing or staying in the territory of the Russian Federation), then there will be no violation of currency legislation when issuing wages in foreign currency, but the Labor Code of the Russian Federation will also be violated.

Rationale

WHEN AND HOW CAN YOU ISSUE CURRENCY TO WORKERS

Companies pay employees wages, vacation pay, issue money on account, provide financial assistance, etc. Is it possible to make such payments in foreign currency? And if this is permissible, then in what way is it issued?

It is important to know the answers to these questions, because failure to comply with currency laws may result in an administrative fine for the company. And its size can be full amount illegal foreign exchange transaction(Part 1 of Article 15.25 of the Code of Administrative Offenses of the Russian Federation).

In order to avoid claims from inspectors from Rosfinnadzor, the company needs to determine whether the issuance of money to employees is a foreign exchange transaction.

STATUS OF WORKERS AND EMPLOYERS

The Labor Code obliges companies to comply with the provisions of currency legislation (Part 1, Article 11 of the Labor Code of the Russian Federation). For the purposes of currency legislation, organizations and citizens are classified as residents or non-residents (Clause and Part 1 of Article 1 of Federal Law No. 173-FZ of December 10, 2003, hereinafter referred to as Law No. 173-FZ).

For convenience, in this article we will call them currency residents And currency non-residents , so as not to confuse these concepts with the term “tax resident of the Russian Federation”.

Tax resident of the Russian Federation and currency resident are not the same thing

The concept of “tax resident of the Russian Federation” is used only when calculating personal income tax (letter of the Federal Tax Service of Russia dated September 3, 2014 No. OA-3-17/2962).

A tax resident of the Russian Federation is a citizen who stays on the territory of the Russian Federation for at least 183 days over the next 12 consecutive months (clause 2 of Article 207 of the Tax Code of the Russian Federation).

From tax status individual The calculation of personal income tax depends.

Foreign exchange transactions between currency residents of the Russian Federation are prohibited (Part 1, Article 9 of Law No. 173-FZ). Therefore, it is important to determine what currency status the employee has and what the employing company has.

Employees - currency residents and non-residents

Russian and foreign employees can be both currency residents and non-residents. The table below lists the categories of employees and explains which documents an accountant can use to determine their status.

TABLE CURRENCY STATUS OF AN EMPLOYEE (SUB. "A" AND "B" P. 6, SUB. "A" P. 7 PART 1 ART. 1 OF LAW No. 173-FZ)

Employers - currency residents and non-residents

To organizations - currency residents refer (subparagraphs “c” and “d”, paragraph 6, part 1, article 1 of Law No. 173-FZ):

• - Russian companies established on the territory of the Russian Federation;
• - branches and separate units Russian resident companies located abroad.

For the purposes of currency legislation currency non-residents are recognized (subparagraphs “b” and “e”, paragraph 7, part 1, article 1 of Law No. 173-FZ):

• - foreign companies created in accordance with the legislation of a foreign state and located outside the Russian Federation;
• - branches, separate and independent divisions of foreign non-resident companies located in Russia.

Let's consider a situation where the parties to the employment contract are the employer - a Russian company or its branch abroad and the employee - a citizen of the Russian Federation or a foreigner who has a residence permit in Russia.

Both the employer and the employee are currency residents.

Alienation of foreign currency by one currency resident to another currency resident is recognized as a foreign exchange transaction (subparagraph “a”, paragraph 9, part 1 of Law No. 173-FZ).

Ban on issuing currency

Currency transactions between residents are prohibited (Part 1, Article 9 of Law No. 173-FZ).

Russian organizations or their branches abroad do not have the right to issue (transfer by bank transfer) foreign currency to citizens of the Russian Federation and foreigners permanently residing in Russia.

We list several situations in which Russian employers are prohibited from issuing foreign currency to citizens of the Russian Federation or foreigners who have a residence permit in the Russian Federation:

• - payment of wages. There is also a ban on issuing wages in foreign currency in Article 131 of the Labor Code;
• - issuance financial assistance; - payment of various compensations, etc.

A RUSSIAN COMPANY ISSUES CURRENCY TO A NON-RESIDENT CURRENCY EMPLOYEE

A Russian company (or its branch abroad) is a currency resident. Can she make payments in foreign currency with an employee who is a foreign currency non-resident? For example, an employee is a foreigner temporarily residing or temporarily staying in the Russian Federation.

Salary

Payment of wages in foreign currency in this situation refers to foreign exchange transactions (subparagraph “b”, paragraph 9, part 1, article 1 of Law No. 173-FZ). Between currency residents And non-residents they are allowed (Article 6 of Law No. 173-FZ).

However, the Labor Code obliges companies to pay employees wages only in rubles (Part 1 of Article 131 of the Labor Code of the Russian Federation, letter of Rostrud dated June 24, 2009 No. 1810-6-1). It is safer to follow the Labor Code.

Code of the Russian Federation on Administrative Offenses

Article 5.27. Violation of labor legislation and other regulatory legal acts containing labor law norms

02/26/2015 - Salary in USD at the Central Bank rate?!

///// Jumps in the dollar and euro, inflation and talk of a possible default - all this causes citizens to distrust the ruble, which makes them start thinking seriously about salaries in foreign currency.
///// Numerous social surveys so far indicate that there are already about 40% of those who want to, but nevertheless, almost 50% of the population want to continue to receive income in rubles, believing that they need to receive income in the currency in which a person spends.
///// In the practice of many employers, questions often arise related in one way or another to the inclusion in the employment contract of conditions for remuneration of the employee in foreign currency.
///// Two main practical questions have emerged on this issue.

///// Question one:
///// Is it legal to establish in an employment contract the amount of an employee’s salary in the Russian Federation in foreign currency, as well as to make salary payments in foreign currency?

///// By virtue of Art. 1 Federal Law dated December 10, 2003 No. 173-FZ “On currency regulation and exchange control "(hereinafter referred to as Law No. 173-FZ), payment of wages in foreign currency is a foreign exchange transaction, i.e. transaction related to the transfer of ownership of currency values, which includes foreign currency.

///// Typical situations:
///// 1. The employee is a resident of Russia and is hired by a Russian legal entity. By virtue of clause 1. Art. 9 of Law No. 173-FZ, currency transactions between residents are prohibited. The exceptions are operations directly listed in this article. 9, among which there are no transactions related to the payment of wages.
///// Accordingly, a Russian legal entity - an employer, due to currency legislation, does not have the right to pay wages in foreign currency to an employee who is a resident of Russia.
///// 2. A Russian legal entity, subject to a number of conditions, has the right to hire foreign workers. Accordingly, an employee of a Russian legal entity may be a non-resident of Russia for the purposes of currency regulation. Paying a salary to a non-resident employee is also a foreign exchange transaction, but due to the fact that its parties are a resident and a non-resident, different rules apply to it.
///// Art. 6. Law No. 173-FZ provides that currency transactions between residents and non-residents are carried out without restrictions, except for cases expressly provided for in the law itself. Among those provided for by Law No. 173-FZ regulated transactions(i.e. transactions for which it is possible to establish restrictions) there is no operation to pay a non-resident employee a salary in foreign currency.
///// From which it follows that currency legislation does not contain a ban or restrictions on the payment of wages in foreign currency by a Russian legal entity - an employer in favor of an employee of a non-resident of Russia.
///// 3. A foreign legal entity that has a branch (representative office) in the Russian Federation recruits employees who are residents of Russia to work in such a branch (representative office).
///// From the point of view of currency legislation, the situation is identical to the second typical situation discussed above: currency transactions between residents (employees) and non-residents (employer) are carried out without restrictions, therefore, currency legislation allows payments to employees in foreign currency.
///// 4. A foreign legal entity that has a branch (representative office) in the Russian Federation recruits employees who are non-residents of Russia to work in such a branch (representative office).
///// There are no restrictions on settlements between non-residents in foreign currency, including those related to the payment of wages.

///// As can be seen, in three of the four typical situations presented, Currency legislation allows for the possibility of an employer paying wages to an employee in a foreign currency in the Russian Federation.

///// Naturally, the norms currency legislation may only apply to settlements in foreign currencies. However, these norms do not and cannot regulate the legality of establishing the very condition on payments in foreign currency in the employment contracts of employees.

///// It is necessary to refer to the norms labor legislation.

///// By virtue of Art. eleven Labor Code of the Russian Federation(hereinafter referred to as the Labor Code of the Russian Federation), its norms are mandatory on the territory of the Russian Federation for all employers, regardless of their organizational, legal forms and forms of ownership. On the territory of the Russian Federation, the rules established by the Labor Code of the Russian Federation apply to labor relations of foreign citizens, stateless persons, employees of international organizations and foreign legal entities.

///// The key norm is contained in Art. 131 of the Labor Code of the Russian Federation, which establishes that wages are paid in cash in the currency of the Russian Federation ( in rubles).

///// It is important to note that the norm of this article of the Labor Code of the Russian Federation develops the provisions of the norm of Art. 3 Convention No. 95 of the International Labor Organization "Regarding wage protection", adopted in Geneva on July 1, 1949, stating that wages paid in cash will be paid exclusively in legally circulated money.
///// At the same time, the norm of Part 2 of Art. 131 of the Labor Code of the Russian Federation establishes the possibility, in accordance with a collective agreement or employment contract at the written request of an employee, to make payment for labor in other forms that do not contradict the legislation of the Russian Federation and international treaties Russian Federation.

///// The conditions contained in Art. 131 of the Labor Code of the Russian Federation are clear: payments in foreign currency are illegal in any of the typical situations presented above, despite the absence of prohibitions from currency legislation.
///// It is obvious that Part 2 of Art. 131 of the Labor Code of the Russian Federation establishes the possibility of providing for other forms of remuneration, while the currency in which labor is paid is not an element of the form of payment, because From this article it follows that there are two main forms of remuneration - monetary and non-monetary forms.

///// However, the second question is more difficult:
///// How legal is it to establish in an employment contract the amount of an employee’s salary in the Russian Federation in a foreign currency, but to pay the salary in rubles, based on the official exchange rate of the corresponding currency on the date of payment?

///// There is no doubt that in practice the exchange rate of the relevant currency specified in the relevant terms of the employment contract may get up, so decline against the Russian ruble under certain circumstances.
///// However, setting salaries in foreign currency can lead to negative consequences. In particular, this has been repeatedly opposed federal Service on labor and employment (Rostrud), indicating in their letters that it is does not comply with the law, since changes in the exchange rate of the ruble against foreign currency can lead to a deterioration in the conditions of remuneration of the employee (letters dated October 10, 2006 No. 1688-6-1; dated July 28, 2008 No. 1729-6-0; dated October 31, 2008 No. 5919-TZ; dated March 11, 2009 No. 1145-TZ; dated June 24, 2009 No. 1810-6-1).

///// Indeed, if you set the salary in foreign currency, then if its exchange rate falls, the employee’s salary will decrease, and this, in turn, will worsen his situation, which is unacceptable in accordance with Part 4 of Art. 8 Labor Code of the Russian Federation.
///// The violation of the law in this case is seen in the fact that this method of calculating and paying wages contradicts the principle of payment for work enshrined in Part 1 of Art. 132 Labor Code of the Russian Federation. It provides that the salary of each employee depends on his qualifications, the complexity of the work performed, the quantity and quality of labor expended and maximum size not limited.

///// Thus, the legislator does not allow the amount of wages to depend on fluctuations in exchange rates, which generally do not depend in any way on the results, complexity and working conditions of a particular employee.

///// In addition, when paying wages established in foreign currency in rubles at the rate of the Central Bank of the Russian Federation, its size will inevitably fluctuate (both down and up). That is, in fact, there will be a permanent change in the terms of the employment contract regarding remuneration. But the legislator proceeds from something else general rule: any adjustments to the terms of the employment contract should not be made automatically, but only by written agreement between the employee and the employer, as defined by Art. 72 Labor Code of the Russian Federation.
///// This is seen as another violation of the law with this method of calculating and paying employees wages.
///// Since the establishment of wages in employment contracts in foreign currency and its subsequent payment in rubles at the rate of the Central Bank of the Russian Federation is recognized as an offense, a company that practices this method of calculating and paying wages to its employees actually faces risks associated with the threat of attracting to responsibility.
///// In particular, in this case we may be talking about the possibility of bringing the employer and its officials to administrative liability for violation of labor legislation in accordance with Art. 5.27 Code of the Russian Federation on Administrative Offenses(hereinafter referred to as the Code of Administrative Offenses of the Russian Federation).
///// In Part 1 Art. 5.27 of the Code of Administrative Offenses of the Russian Federation states that violation of labor and labor protection legislation (in this case, Article 72 and Article 132 of the Labor Code of the Russian Federation) entails a warning or the imposition of an administrative fine on officials in the amount of one thousand to five thousand rubles; for persons carrying out entrepreneurial activities without forming a legal entity - from one thousand to five thousand rubles; for legal entities - from thirty thousand to fifty thousand rubles.
///// A part 4 art. 5.27 of the Code of Administrative Offenses of the Russian Federation provides that violation of labor and labor protection legislation by an official previously subjected to administrative punishment for a similar administrative offense entails the imposition of an administrative fine on officials in the amount of ten thousand to twenty thousand rubles or disqualification for a period of one year to three years; for persons carrying out entrepreneurial activities without forming a legal entity - from ten thousand to twenty thousand rubles; for legal entities - from fifty thousand to seventy thousand rubles.

///// In addition, among the possible risks, one should highlight the threat of labor disputes with employees who may ( if desired) challenge this method of calculating and paying wages in court, and also demand compensation for material damage caused by this offense on the basis of Art. 236 Labor Code of the Russian Federation and compensation moral damage on the basis of Art. 237 Labor Code of the Russian Federation.

///// By the way, a decrease in the foreign currency exchange rate, compared to the rate on the date when the parties signed the employment contract, leads to the payment to the employee of smaller amounts in rubles compared to previously paid. In such a situation, the unforeseen Art. 137 of the Labor Code of the Russian Federation withholding from wages. And by virtue of Part 3 of Art. 4 of the Labor Code of the Russian Federation, payment of wages not in full can be considered forced labor.
///// It should also be noted that Art. 134 of the Labor Code of the Russian Federation establishes the need to ensure an increase in the level of real wages through indexation in connection with the increase in consumer prices for goods and services. Government bodies, local government bodies, state and municipal institutions carry out wage indexation in the manner established by labor legislation and other regulatory legal acts containing labor law norms, other employers - in the manner established by the collective agreement, agreements, local regulations.
///// Thus, the purpose of this norm is precisely to ensure that wages are reviewed and are adequate consumer prices, which tend to increase, as practice has shown last months, regardless of world currency rates.

///// However, a significant part of workers still considers the establishment, in an employment contract, of a salary in foreign currency with payment at the corresponding exchange rate in rubles, as a very preferable condition.

///// Review prepared by the company

p.s.

Several months have already passed since this publication, but this issue has not lost its relevance...

Rostrud, in its letter dated November 20, 2015 No. 2631-6-1, again expressed its position:

“The establishment of wages in ruble equivalents in foreign currency or in conventional units in employment contracts, in our opinion, will not fully comply with labor legislation and, in certain conditions, infringe on the rights of employees...”

For more details see:(downloads: 85)

President of Russia V.V. Putin signed a law (Federal Law No. 44-FZ dated March 7, 2018 “On Amendments to Articles 9 and 12 of the Federal Law “On Currency Regulation and Currency Control”), providing for the opportunity for Russian citizens who live abroad and work in domestic companies, receive salaries in foreign currency.

Transactions for the payment of wages and other payments that are related to work are now included in the list of permitted foreign exchange transactions. The law also provides the opportunity to carry out operations to pay wages to employees of branches of tax resident legal entities outside of Russia. For this legal entities open accounts in foreign banks.

Previously, in accordance with the provisions of Art. 12 of the Federal Law “On Currency Regulation and Currency Control,” Russian citizens who work abroad had the right to receive wages only in rubles into accounts opened in authorized foreign banks.

In February 2018, the President signed a law amending the Labor Code of the Russian Federation, which will allow Russian companies to pay salaries in foreign currency to employees working abroad.

In addition, diplomatic employees and persons sent to work outside of Russia by federal departments are also given the opportunity to receive wages in foreign currency to their foreign accounts. Previously, this category of persons did not have such an opportunity.

New edition of Art. 131 of the Labor Code of the Russian Federation allows residents to pay wages from a resident employer in foreign currency. The corresponding changes came into force on 02/16/2018, they were put into effect on the basis of Federal Law No. 8 of 02/05/2018. The changes will affect only a small part of employees: those who perform work duties outside of Russia.

Is it possible to pay wages in foreign currency within the country? What risks exist for the management and financial and economic service of the company in this case? Let's talk about this in more detail.

Residents working abroad

Previous version of Art. 131 of the Labor Code allowed payment of labor only in rubles. Other legislative acts of the Russian Federation contained similar norms. In December last year, changes were made to Federal Law No. 173 “On Currency Regulation...”, according to which employees of diplomatic missions and other similar services were able to receive wages in foreign currency (from January 1, 2018), but only through accounts in authorized banks outside the territory of the Russian Federation.

Changes to the Labor Code of the Russian Federation have finally resolved the problem of contradictions in legislation: employees abroad can open accounts in Russian banks and receive payment for work in foreign currency.

The amendments apply to the following categories of resident citizens abroad collaborating with resident organizations:

• employees of diplomatic missions, consulates;
• employees of representative offices of international organizations abroad;
• employees of representative offices of the federal executive power of the Russian Federation abroad;
• representatives of the Russian Federation to international organizations or representatives of the federal executive power of the Russian Federation to international organizations;
• employees of government agencies abroad;
• military personnel and other workers performing their duties abroad, as directed by the federal authorities;
• NGO workers abroad;
• journalists abroad, etc.

On a note! According to the new rules, workers abroad can receive not only wages, but also monetary allowance(maintenance), any other payments provided for by the employment relationship. Accruals are made in accordance with employment agreements (contracts) and additional agreements thereto.

Residents within the country

Is it possible to calculate and pay wages in foreign currency if both the employee and the employer are residents? According to Art. 9 Federal Law No. 173, currency transactions between residents, including the payment of wages, are prohibited. Exceptions are discussed above. They do not concern the relationship between employees and resident employers within the country.

According to the legislation of the Russian Federation, resident individuals are:

• citizens of the Russian Federation;
• foreigners and stateless persons who have a residence permit in the Russian Federation (see Art. 1-6 of Federal Law No. 173).

Some employers, in an effort to retain valuable personnel of a resident company within the country, instruct the financial and economic service to establish and accrue wages and other payments related to labor relations to resident employees in foreign currency, and payments, according to labor legislation, are traditionally made in rubles They justify their position by the fact that in labor legislation there is no direct prohibition to set wages in foreign currency, and until the moment of payment of the amounts, such an operation is not a foreign exchange transaction between residents, accordingly, it does not fall under the norms of Federal Law No. 173.

The position itself is shaky, from the point of view of interpretation of legislative norms, and instead of the expected positive effect it can lead to real financial losses for the employer. Employees of the Labor Inspectorate have repeatedly noted that calculating wages in foreign currency can negatively affect the position of the employee if the exchange rate of this currency falls rather than rises (see, for example, Letter No. 1810-6-1 of Rostrud dated 06/24/09 .).

In addition, the consequences of such a decision can be expressed in other negative aspects:

1. Permanently changing the terms of an already concluded employment contract by changing exchange rate without the consent of one of the parties. According to the Labor Code of the Russian Federation, this situation is a gross violation of the law (Article 72 of the Labor Code of the Russian Federation).
2. The need to track the course and control changes by signing additional agreements. This is inevitable if the company does not want to break the law. These procedures significantly increase document flow and the burden on the company’s HR department. Taking into account the daily changes in the exchange rate, it is almost impossible to complete such work without omissions and violations.
3. Problem when calculating a pension for an employee in the future.

Resident and non-resident

The situation, from the point of view of regulation of foreign exchange transactions, is twofold. On the one hand, a non-resident foreign company can employ resident Russians in a branch or representative office on the territory of the Russian Federation. On the other hand, Russian companies that are residents also employ non-resident workers, foreign citizens. In both cases, it is possible to calculate and pay wages and similar payments in foreign currency.

Federal Law No. 173 (Article 9-1) provides for restrictions only if the two parties to the employment contract are residents, and Art. 6 directly speaks about the possibility of foreign exchange transactions between residents and non-residents. Exceptions under this article do not apply to labor relations and wage amounts.

Let's consider a situation in which a foreign citizen is an employee of a Russian resident company. IN general case two options are possible:

• the employee has a residence permit and is a resident of the Russian Federation;
• the employee has other documents giving him the right to stay in the territory of the Russian Federation temporarily, and is a non-resident.

Legal norms prohibit the calculation and payment of wages in foreign currency to a foreigner (stateless person) permanently residing in the territory of the Russian Federation - the holder of a residence permit. At the same time, they make it possible, if this does not contradict the law, to pay the currency equivalent of wages to non-resident foreign citizens.

On a note! A residence permit can be issued as to a foreign citizen, as well as stateless persons. The document confirms the right of its owner to reside permanently on the territory of the Russian Federation (Article 2-1 of Federal Law No. 115 “On the legal status of foreign citizens...”).

When paying wages to an employee of a resident company, in accordance with Art. 14-1 Federal Law No. 173, have the right to open foreign currency accounts in authorized banks, if this does not contradict the legislative norms discussed above. At the same time, in Art. 14-2 talks about conducting currency payments through such accounts according to the rules of the Central Bank. Control authorities often conclude that it is mandatory to pay the currency equivalent of wages exclusively through banking operations. They consider it a violation to pay the same amounts through the cash register.

Meanwhile, arbitration courts support the employer in this matter and believe that payment of wages in foreign currency to a non-resident employee through the cash desk is completely legal (Definition No. 19914/13 27-01-14 of the Supreme Arbitration Court of the Russian Federation and a number of similar documents). A non-resident employee who has not expressed a desire to receive wages through a bank account can receive it at the cash desk. There are no violations on the part of the resident employer in this case, since he is obliged to comply with the requirements of labor legislation.

Main

Amendments to the Labor Code of the Russian Federation, adopted this year, resolve the issue of paying wages and similar amounts in foreign currency, if both the employee and the employer are residents of the Russian Federation, and the recipient is located outside the country. Now a similar operation can be carried out through an account opened in a Russian bank.

Other categories of residents and non-residents were not affected by the innovations: in labor relations under the “resident-resident” scheme in Russia, foreign currency payments are prohibited. If at least one of the parties to the labor relationship is a non-resident, problems with payments, according to the law, do not arise.