How the document will save. The social package of some companies includes catering for employees. Payment for meals is usually made on the basis of agreements set out in labor or collective agreements. But the legislation does not provide for such an obligation. There are usually no claims for income tax - expenses are taken into account on the basis of paragraph 25 of Article 255 of the Tax Code of the Russian Federation (letter of the Ministry of Finance of Russia dated 31.03.11 No. 03-03-06 / 4/26).

However, payment for food does not fall under the concept of compensation specified in Article 165 of the Labor Code of the Russian Federation. It is also not mentioned among the non-contributory payments (art. 9 federal law dated July 24, 2009 No. 212-FZ). Therefore, the corresponding amounts should be included in the base for calculating insurance premiums (part 1, article 7, parts 1, 6, article 8 of the Federal Law of July 24, 2009 No. 212FZ).

Officials of the Ministry of Health and Social Development of Russia adhere to this position (letters dated 05.08.10 No. 2519-19 and dated 03.23.10 No. 647-19). The judges also support them in this (decisions of the Second Arbitration Court of Appeal dated April 26, 2012 No. A28-9376 / 2011, the Seventh Arbitration Court of Appeal dated June 7, 2012 No. A45-9799 / 2012, the Seventeenth Arbitration Court of Appeal dated September 28, 2011 No. 17AP-9100 /2011-AK).

But the company must keep a personalized account of the object of taxation of insurance premiums for each employee (part 6 of article 15, paragraph 2 of part 2 of article 28 of the Federal Law of July 24, 2009 No. 212FZ). If it is impossible to determine the amount of material benefits received by a particular individual, then the accrual of insurance premiums is not made. It is impossible to determine the share of income of each person by arithmetic division, since the presence of an employee at the workplace for an equal amount of time with other persons does not mean that he received the same amount of benefits as his colleagues (Resolution of the Federal Arbitration Court of the Far Eastern District of May 30, 2012 No. F03 -1636/2012).

Note that in the absence of personalization, employees' money is also saved - by reducing personal income tax. The Ministry of Finance of Russia still insists on including income in the form of payment of impersonal expenses in the personal income tax base (letter No. 03-04-06/6-117 of April 18, 2012), but the courts do not support this position.

When making a decision, they are guided by paragraph 8 of the Information Letter of the Supreme Arbitration Court of the Russian Federation dated 06.21.99 No. 42. The Supreme Arbitration Court of the Russian Federation pointed out the inadmissibility of an impersonal arithmetic calculation of a person’s income based on the total amount of expenses (decisions of the federal arbitration courts of the Urals dated 08.20.09 No. Ф09-5950 / 09- C2, Far Eastern District No. Ф03-2484/2009 dated June 15, 09).

Therefore, you can save on insurance premiums with proper catering for the employee. It should not allow a company's expenses to be attributed to a specific person. This can be achieved in two ways. Partial meals can be provided as a buffet. And part of the costs can be transferred to other agreements, in particular the lease agreement.

Any organization can help solve this problem. Catering providing catering services (catering company). Catering services are understood as the organization of catering at the orders of consumers outside the catering organization (clause 4.4 of GOST R50764-2009, (approved by order of Rostekhregulirovaniya dated 03.11.09 No. 495-st), clause 6.1 of SP2.3.6.1079-01 (approved by Decree of the Chief State Sanitary Doctor of the Russian Federation of 08.11.01 No. 31).

The principle of such services is similar to organizing, for example, a wedding banquet. They include cooking and delivering them to the place of order, heating dishes, table setting, cleaning dishes, premises and territory. Services are carried out by the service staff of the catering company. Table linen, crockery, cutlery, mobile (mobile) kitchen equipment and inventory are considered to be rented or leased. Thus, it is possible to organize meals for employees both working in the office and traveling.

In what form is it compiled. Catering services are provided on the basis of an appropriate contract. It is mixed - it combines elements of a contract for the provision of catering services and elements of a lease (rental) contract for kitchen equipment and inventory.

Civil law does not require the conclusion of any of these contracts in writing. This means that an oral form is also possible for a catering service agreement. However, this option will not allow you to clearly spell out the important terms of the contract - they must confirm the impossibility of personifying part of the costs. Therefore, it is better to conclude a contract in writing.

What must be in the document. The contract must clearly distinguish between two subjects - the provision of catering services (that is, the provision of ready-made meals) and the provision of equipment and inventory for rent for organizing a food service point.

The predominant part of the remuneration of the catering company in the contract is provided for rent and service. It is necessary to highlight which part of the payment relates to "general" kitchen equipment, which part - to individual inventory, which can be accounted for as personalized expenses. The rest of the contract costs are for meals. Here it is better to single out the cost of ready-made dishes for the buffet and a la carte dishes separately.

Additional security measures. In order to exclude income tax claims, the contract can indicate that the company, as a customer of catering services, acts in fulfillment of its obligations to employees under the collective agreement. Although this is not mandatory, for these purposes the collective agreement can be referred to in the manager's order for the search and selection of a catering company.

When distributing the remuneration of a catering company in the contract between payment for ready meals, rent and service, one should be guided by objective indicators. For example, you should not set the cost of a portion equal to - much less significantly below - its cost.

Buffet for staff: "menu" with personal income tax or not?

Article placement date: 08/10/2012

A. Kryukova

Lunch organized by the employer at his own expense or as part of the remuneration system brings the employee a certain economic benefit. In other words, there is every reason to talk about the emergence of income subject to personal income tax, which the "feast manager" as a tax agent is obliged to calculate, withhold and pay to the budget. If meals are provided on a buffet basis, then it is simply impossible to determine the economic benefit that each individual worker will receive for the purposes of calculating this tax. And so, the issue of paying personal income tax in this situation disappears by itself. However, the Ministry of Finance has a different opinion on this matter.

According to Art. 209 of the Tax Code, the object of personal income tax for an individual with the status of a tax resident is the income received by him from sources in Russian Federation and beyond; for an individual not recognized as a resident - income from Russian sources. Thus, the emergence of an object of taxation in this case is primarily due to the receipt of income by the taxpayer. The same by virtue of Art. 41 of the Code recognizes the economic benefit. In this regard, the cost of food received from the employer or paid for by him, of course, is income for the employee. Moreover, there are grounds not to tax him with personal income tax only when providing staff with food, according to the law, is the responsibility of the employer. We are talking, in particular, about the provision of free food and nutrition to employees who are employed in work with harmful and especially harmful conditions labor (Article 222 of the Labor Code). In this case, the cost of such is already considered as compensation associated with the performance of labor duties. Meanwhile, by virtue of paragraph 3 of Art. 217 of the Tax Code, such amounts are exempt from personal income tax.
According to Art. 41 of the Tax Code, economic benefits are recognized as income, both in cash and in kind. In turn, paragraph 1 of Art. 210 of the Code, it is determined that the personal income tax base takes into account all the taxpayer's income received by him both in cash and in kind. At the same time, pp. 1 p. 2 art. 211 of the Tax Code stipulates that the income received by the taxpayer in kind includes payment (in full or in part) for him by organizations or individual entrepreneurs goods (works, services), including food, in his interests. In this sense, how exactly the employer provides employees with meals (pays for the services of a specialized company, buys food or gives money) does not matter. In any case, we are talking about income subject to personal income tax. Of great importance is the method of catering for personnel in connection with other circumstances.

Equally to each

By virtue of Art. 41 of the Tax Code, economic benefits are taken into account for tax purposes as income only if it can be assessed, and only to the extent that this is possible in accordance with the norms of the chapters of the Tax Code "Income Tax individuals"or" Corporate income tax ". In this case, clause 1 of article 211 of the Tax Code provides that when an individual receives income in kind in the form of goods (works, services), other property, the personal income tax base is determined as the cost of these goods (works, services), other property, calculated on the basis of their prices. However, such a procedure for calculating the tax base implies the possibility of calculating the exact quantity and, accordingly, the cost of goods (works, services) consumed by a particular employee. received by each employee is impossible, then income subject to personal income tax does not arise.
In particular, the metropolitan tax authorities in relation to the amount of payment by the organization for food (coffee, tea, sugar) for their employees in Letter dated July 14, 2008 N 28-11 / 066968 indicated literally the following. In order to calculate personal income tax, they noted, income must be targeted, which means that they must be received by specific individuals. If it is impossible to establish the amount of income received by individuals in kind, then the amounts paid by the organization for the purchase of tea, coffee, sugar for representational purposes are not their income. To similar conclusions, having considered in the Letter of April 15, 2008 N 03-04-06-01 / 86 the question of the procedure for determining the base for personal income tax when an employer conducts corporate holiday events, came and representatives of the Ministry of Finance of Russia. If during the corporate party, they pointed out, there is no opportunity to personify and evaluate the economic benefit received by each participant in the holiday, then they do not have income subject to personal income tax.
In fact, financiers do not refuse this position even when it comes to the employer organizing lunches for staff on a buffet basis. Another thing is that, according to officials, in this case, the calculation of the income received by each employee is by no means an impossible task. It is quite possible to do this, they emphasize, on the basis of total cost provided meals and data from the time sheet or other similar documents. Such conclusions are contained in the Letter of the financial department dated April 18, 2012 N 03-04-06 / 6-117. Experts of the Ministry of Finance of Russia also expressed a similar point of view in Letter No. 03-11-04/2/167 dated June 19, 2007. At the same time, it is obvious that the fact that an employee is present at the workplace does not mean that he is receiving food, but apparently this does not bother officials. But it confuses the judges.

Personal income tax does not tolerate an impersonal approach

As early as paragraph 8 of the Information Letter of June 21, 1999 N 42, the Presidium of the Supreme Arbitration Court of the Russian Federation indicated that income in the form of a material benefit should be included in the taxpayer's total income only if the amount of income could be determined in relation to this individual. The reason for such conclusions of the higher judges was the materials of the case, in which tax office included in the total annual income of the company's employees the amount of funds allocated by its management for the collective new year event. For failure to withhold income tax from him, the company, as a tax agent, was brought to tax liability by inspectors. At the same time, the amount of additionally assessed tax was calculated by the auditors impersonally, based on the total amount of corporate expenses. In fact, it is in this way that the Ministry of Finance and the Ministry of Finance prescribes to determine personal income tax when catering employees on a buffet basis.
Meanwhile, as the Presidium of the Supreme Arbitration Court of the Russian Federation pointed out, in the case under consideration there was no personalized determination of the amount of income in kind, which was received by each individual who took part in New Year's Eve. The inspection did not prove that material good used by all employees. In this regard, the arbitrators considered, the court rightfully satisfied the company's claim to invalidate the decision of the tax authorities.
And although the Information Letter considers the practice of applying the Law of December 7, 1991 N 1998-1 "On income tax on individuals", which has already become invalid, the courts reason in a similar way under the current legislation.
In particular, the judges of the Federal Antimonopoly Service of the North-Western District, in their Decree dated February 21, 2008 in case No. A56-30516/2006, noted that the workers ate according to the "buffet" system, which means they received food in the amount determined independently. At the same time, the inspection did not prove that specific employees ate food in the amount that was purchased and reflected in the financial statements.
The need to personify the income received in order to calculate personal income tax and the inadmissibility of its determination based on the total cost of catering services or products is also stated in the Resolutions of the Federal Antimonopoly Service Ural District of January 19, 2010 N F09-10766 / 09-C2, of August 20, 2009 N F09-5950 / 09-C2, FAS of the Far Eastern District of June 15, 2009 N F03-2484 / 2009.

Sometimes caring employers provide their employees with buffet lunches - various dishes and drinks are freely available, which employees can take at their discretion. Let's talk about the tax features of cost accounting for such meals and how to avoid disputes with inspectors.

"Official-conflict-free" option

The scheme of actions for this option is as follows.

1. Include a condition on the provision of free lunches in the collective or employment contracts.

2. Take a written application from each employee asking for a part of the salary in the form of free meals Art. 131 of the Labor Code of the Russian Federation. After all, the cost of meals becomes part of the wages in non-monetary form. Recall that the share of "non-monetary" wages should not exceed 20% of the accrued monthly salary. p. 1 section. II Letters of the Ministry of Finance of January 17, 2011 No. 03-04-06 / 6-1.

3. Charge VAT on the cost of lunches, because the transfer of free lunches to employees is a sale subject to VAT sub. 1 p. 1 art. 146, paragraph 2 of Art. 154 of the Tax Code of the Russian Federation; Letters of the Ministry of Finance dated 08.27.2012 No. 03-07-11 / 325; Federal Tax Service for Moscow dated 03.03.2010 No. 16-15/22410. Some courts agree with this. Decree of the FAS MO dated April 27, 2009 No. KA-A40 / 3229-09-2.

4. Deduct input VAT on purchased meals. There should be no difficulties with justifying the deduction at all, because you have charged tax on the cost of the buffet. And this deduction of input VAT can "sweeten" the need to charge VAT on the cost of meals. After all, if the tax base is calculated based on the cost of products, then the amount of VAT charged will be equal to the amount of deductions. And the budget will not have to pay anything.

5. Determine the cost of meals for each employee on a monthly basis.

For example, you can mark every day those who came to the canteen and then determine the cost of a monthly meal for each of them. And you can make it even simpler: to determine the "eating" (from among those who wrote an application for food) according to the time sheet - according to the principle "if you came to work, then you went to the canteen." Moreover, the Ministry of Finance is not against such an approach, but , .

6. Calculate personal income tax and insurance premiums- from the cost of food, including VAT. The amount of contributions is taken into account in the "profitable" expenses.

7. Take into account the cost of meals when calculating income tax as part of labor costs pp. 4, 25 Art. 255 Tax Code of the Russian Federation.

This option is not only safe (the inspectors will not find fault), but also very beneficial for the company. After all, the tax burden is quite feasible.

Of course, employees may not be very happy that personal income tax will be withheld from their salary. However, they will be fed! And if someone does not want to dine, then he can always refuse to participate in corporate catering.

Option with disputes and court

There may be many versions of this option. And any deviation from the scheme described in the previous version can lead to disputes.

Let's consider various possible nitpicks of inspectors on specific taxes.

We do not charge personal income tax and insurance premiums: there are chances to fight off claims

Free lunches are nothing but in-kind income for employees. And this income, according to the Ministry of Finance, is subject to personal income tax Art. 211 of the Tax Code of the Russian Federation; Letters of the Ministry of Finance dated January 30, 2013 No. 03-04-06 / 6-29, dated April 18, 2012 No. 03-04-06 / 6-117. The same is true for insurance premiums. Part 1 Art. 7 of the Law of July 24, 2009 No. 212-FZ; paragraph 4 Letters of the Ministry of Health and Social Development dated 05.08.2010 No. 2519-19.

TELLING THE MANAGER

Organization of the buffet for employees at the expense of the company does not involve a large tax burden.

However, when organizing a buffet, it is simply impossible to accurately determine the income of each employee. You can’t force everyone to write down after dinner what he ate today.

At the same time, the Ministry of Finance believes that an organization that provides meals to employees, in order to perform the functions of a tax agent, "must take all possible measures to evaluate and account for the economic benefits received by employees » Art. 226 of the Tax Code of the Russian Federation; Letter of the Ministry of Finance dated January 30, 2013 No. 03-04-06/6-29. So, it is necessary to determine the amount of income of each of the employees. At least indirectly - as we have already said above Letters of the Ministry of Finance of April 18, 2012 No. 03-04-06 / 6-117, of June 19, 2007 No. 03-11-04 / 2/167. The main thing is that, following the results, the cost of all meals should be distributed among employees and transferred from it to the personal income tax budget. Please note that sometimes courts support tax officials who charge additional personal income tax in such situations Decrees of the FAS PO dated 06/22/2009 No. A55-14976 / 2008; FAS 9 AAC dated December 23, 2011 No. 09-AP -33112/2011-AK.

However, you can argue with inspectors and not charge personal income tax on the cost of meals using the following arguments:

• if the amount of income cannot be determined, then there is no object of personal income tax taxation itself. This position has long been voiced by the Supreme Arbitration Court of the Russian Federation paragraph 8 of the Information letter of the Presidium of the Supreme Arbitration Court dated 21.06.99 No. 42. Federal arbitration courts also generally support the taxpayer in Decrees of the FAS UO dated 08.20.2009 No. Ф09-5950 / 09-С2; FAS DVO dated 06/15/2009 No. F03-2484 / 2009; FAS SKO dated 12.03.2008 No. F08-478 / 08-265A. This argument will also work to justify why you did not charge insurance premiums;
• The Ministry of Finance in its letters explains that if it is impossible to individualize employees' lunches, then personal income tax does not arise. Letters of the Ministry of Finance of April 15, 2008 No. 03-04-06-01 / 86, of January 30, 2013 No. 03-04-06 / 6-29. These clarifications can at least save the organization from fines and penalties. sub. 3 p. 1 art. 111 Tax Code of the Russian Federation.

Income tax: took into account the cost of meals in expenses without personification - there will be problems

According to the Ministry of Finance, buffet costs can be included in labor costs that are taken into account for income tax purposes if:

• provision of lunches is stipulated in the collective or labor agreement with the employee paragraph 25 of Art. 270, paras. 4, 25 Art. 255 of the Tax Code of the Russian Federation; Letters of the Ministry of Finance dated 06/04/2012 No. 03-03-06 / 1/292, dated 03/04/2008 No. 03-03-06 / 1/133;
• it is possible to determine the income of each worker a Letters of the Ministry of Finance of August 30, 2012 No. 03-04-06 / 6-262; Federal Tax Service for Moscow dated April 13, 2011 No. 16-15 / [email protected] .

If any of these conditions is not met, then, in the opinion of the inspectors, you simply donate meals, and it is impossible to say exactly to whom. articles 129, 135 of the Labor Code of the Russian Federation. This means that this is not a wage at all and the cost of lunches are related to expenses that are not taken into account for tax purposes. Art. 270 Tax Code of the Russian Federation.

There are cases when organizations managed to defend the accounting of the costs of a "non-personalized" smorgasbord as wages - in those situations, the provision of lunches was provided for in the labor and collective agreements.

Companies offer employees a social package to increase their loyalty. Among other benefits, it includes food at the expense of the employer. But the tax consequences not only for the company, but also for the employee himself, depend on how this food is organized. Disputes with tax authorities and non-budgetary funds are not uncommon.

Regular cash payment increases premium base

The employer has the right to establish compensation for employees (Articles 164, 165 of the Labor Code of the Russian Federation). But food reimbursement, whatever it is called, does not inherently fall within the scope of the reimbursement referred to in labor law. If meals are not provided due to working conditions (work for hazardous industries, for example), then it is not considered mandatory by law (Article 222 of the Labor Code of the Russian Federation).

The inability to attribute the payment for the employee's meals to compensation leads to the appearance of income for him. And in this case, the question arises of taxing the payment of food to employees with personal income tax and insurance premiums. The company must accrue personal income tax and insurance premiums. But for this it is necessary to personify the income of each employee (part 1 of article 7, part 1, 6 of article 8, part 6 of article 15, paragraph 2 of part 2 of article 28 of the Federal Law of July 24, 2009 No. 212- Federal Law, paragraph 1, article 209, paragraph 1, article 210, paragraph 1, subparagraph 1, paragraph 2, article 211 of the Tax Code of the Russian Federation).

A company can pay an employee for food not only in the form of compensation for his expenses, but also as an unconditional increase in salary. Such an increase is also subject to personal income tax and insurance premiums. The company withholds personal income tax as a tax agent (clause 1, article 226 of the Tax Code of the Russian Federation).

There is a risky way of not accruing insurance premiums on a cash payment in the form of compensation. To do this, the employer must link the payment of food to the social program in the collective agreement. For example, call the measure social protection employee (Article 40 of the Labor Code of the Russian Federation).

The Presidium of the Supreme Arbitration Court of the Russian Federation (Resolutions No. 10905/13 of December 3, 2013 and No. 17744/12 of May 14, 2013) confirmed that payments are not subject to insurance premiums if they:

Do not depend on the qualifications of employees, complexity, quality, quantity, conditions of work;

Are not stimulating;

They are not related to remuneration of employees for work, including because they are not provided for by labor contracts and are not elements of remuneration.

The regulatory authorities do not agree with the opinion of the Supreme Arbitration Court of the Russian Federation (letters of the Ministry of Labor of Russia dated January 20, 2014 No. 17-3 / V-13, dated March 11, 2014 No. 17-3 / V-100). Officials substantiate their position by a literal reading of the norms of the law. These compensation payments are not included in the list of preferential payments in Article 9 of Federal Law No. 212-FZ dated July 24, 2009. There is a risk that the court will agree with this opinion (Decree of the Federal Antimonopoly Service of the Far Eastern District of September 12, 2013 No. Ф03-3403/2013).

The courts, relying on the legal position of the Presidium of the Supreme Arbitration Court of the Russian Federation, support the employer (clause 20 of the Recommendations of the Scientific Advisory Council "Issues of the application of tax legislation" (approved by the decision of the Presidium of the Arbitration Court of the Volga-Vyatka District, protocol dated June 17, 2015 No. 3), resolution of the Volga Arbitration Court No. F06-4463/2015 of 12/25/15, No. F06-25718/2015 of 15.07.15, No. F07-6144/2014 of the North-West of 08.28.14, No. F08-1171/2015 of the North Caucasus of 04.07.15, Central of 27.11.14 No. А64-1219/2014, Federal Antimonopoly Service of the Urals of 03.24.14 No. Ф09-1316/14 districts).

Buffet allows you not to personalize income

If the company organizes meals in the form of a buffet, then it is impossible to personalize the income. The higher courts have clarified that in this case, the taxation of the payment of meals to employees is impossible, because it is impossible to determine the tax base. In such a situation, the company is not obliged to calculate personal income tax and cannot be held liable for failure to fulfill the duties of a tax agent (clause 8 of the Review of the practice of resolving disputes related to the collection of income tax, appendix to information letter The Supreme Arbitration Court of the Russian Federation of 21.06.99 No. 42, paragraph 5 of the Review of the Practice of Considering Cases by Courts Related to the Application of Chapter 23 of the Tax Code of the Russian Federation, approved. Presidium of the Armed Forces of the Russian Federation on October 21, 2015).

The Ministry of Finance of Russia agrees with this opinion (letter No. 03-04-05/6-333 dated April 3, 2013). But only if the company objectively lacks the ability to personalize income.

If the company does not maintain personalized records, then insurance premiums do not need to be charged. The argument is the same for social insurance it is important to determine the base for each of the employees (letters of the Ministry of Health and Social Development of Russia dated 05.08.10 No. 2519–19 (p. 4), dated 05.19.10 No. 1239–19, Ministry of Labor of Russia dated 05.24.13 No. 14-1-1061 (p. 4 )).

Labor costs must be personalized

The Code allows writing off the costs of catering for employees only if the company is required by law to provide this food (clause 4, article 255 of the Tax Code of the Russian Federation). But the composition of labor costs is open. AT general case under this article are those costs that are directly provided for by the collective or employment contract(part 1, paragraph 25 of article 255 of the Tax Code of the Russian Federation).

The Ministry of Finance of Russia does not argue with the norm (letters dated 06.03.15 No. 03-07-11 / 12142, dated 31.03.11 No. 03-03-06 / 4/26). But it requires that such expenses be personified (letters dated 11.06.15 No. 03-07-11 / 33827, dated 11.02.14 No. 03-04-05 / 5487, dated 04.03.08 No. 03-03-06 / 1/133 ). The condition on the personification of expenses in order to take them into account for taxation of profits is due to the fact that we are talking about wages. The work of each employee is paid personally. And such payments must be documented (clause 1, article 252 of the Tax Code of the Russian Federation). If it is impossible to personify expenses, then they cannot be taken into account either (clause 25, article 270 of the Tax Code of the Russian Federation).

Upon payment monetary compensation or include it in the amount wages there are no problems with personalization. Such amounts are included in labor costs.

There may be disputes if in the collective agreement, to optimize insurance premiums, these payments are called social. If they are taken into account as labor costs, this argument can be used by funds for additional assessment of insurance premiums. The tax authorities can also point to the qualification of an expense in order to cast doubt on its validity.

Accounting for the cost of the buffet is carried out according to the same principles. The personification of expenses will make it impossible to optimize them for personal income tax. With regard to insurance premiums, savings can be defended, but only in a risky way. If the costs are not personalized, then the tax authorities will try to challenge the possibility of accounting for costs for profit taxation.

If VAT is not charged, then deductions are lost

Payment for food in cash, regardless of how it is called, is not subject to VAT. But when organizing a buffet, disputes are possible. Catering can be regarded by the tax authorities as a sale. And this is an object of VAT taxation, including in the case of gratuitousness (paragraph 2, subparagraph 1, paragraph 1, article 146 of the Tax Code of the Russian Federation, letters of the Ministry of Finance of Russia dated 08.07.14 No. 03-07-11 / 33013, dated 11.02.14 No. 03 -04-05/5487). But if personification does not occur, then there is no object of taxation either (letters of the Ministry of Finance of Russia dated 11.06.15 No. 03-07-11 / 33827, dated 06.03.15 No. 07/133). But in this case, the company also does not have an input VAT deduction (subclause 1, clause 2, article 170 of the Tax Code of the Russian Federation).

There are decisions in which the courts came to the conclusion that in this case there is no transfer of goods for their own needs, and the sale of goods to employees. Accordingly, it is not necessary to charge VAT (decisions of the Federal Antimonopoly Service of the West Siberian of 17.06.13 No. A03-7961 / 2012, North-West of 04.12.14 No. A42-8734 / 2013 (determination of the Armed Forces of the Russian Federation of 31.03.15 No. 307-KG15-2001 ), dated 12.04.13 No. А44-4898/2012 districts).

It should be noted that there is a risk of additional VAT due to non-recognition of the cost of food as an expense. The tax authorities may indicate that the buffet items are used by the employer for his own needs, since he provides meals to employees in accordance with the norms of the collective agreement. And the transfer for own needs of goods, the cost of which is not taken into account when calculating income tax, is recognized as an object of VAT (subparagraph 2, paragraph 1, article 146 of the Tax Code of the Russian Federation).

You can protect yourself from additional charges by pointing out that these expenses can, in principle, be taken into account for income tax purposes (Decree of the Federal Antimonopoly Service of the Volga-Vyatka District of July 19, 2011 No. 14312/11)). The fact that the company did not do this does not mean that a VAT tax base arises (Resolution of the Federal Antimonopoly Service of the North-Western District dated April 12, 2013 No. A44-4898/2012).

Each of the options can be beneficial

Comparing the three options for providing workers with food, we can conclude that each of them is beneficial in its own way. An increase in wages by this amount will allow you to take it into account for profit tax purposes without any problems. In this case, there is no object for VAT. But the company will pay insurance premiums * and calculate personal income tax.

The most controversial option is the payment of compensation in accordance with the collective agreement as a measure of social protection. This will allow not to accrue insurance premiums when paying for meals to employees, although the inspectors will try to prove that there is an object of taxation. The terms of the collective agreement give grounds to take these amounts into account for income tax purposes. But the social nature of the payments may be an argument against this. Only the taxation of personal income tax compensation and non-taxation of cash payments of VAT will be indisputable.

If the company has organized a buffet and does not keep personal records, then the expenses do not reduce taxable income. However, insurance premiums and personal income tax do not arise. In addition, the clarifications of the Russian Ministry of Finance will allow not to charge VAT, but the company will not accept the input amount for deduction. And since expenses are not taken into account for the purpose of taxing profits, the VAT presented does not reduce it either (clause 1, article 170 of the Tax Code of the Russian Federation).

On the numbers

Let's assume that the cost of organizing a buffet to feed employees is 36 thousand rubles. per year per person (including input VAT). The alternative is to pay compensation in the same amount or increase wages by this amount. In all three cases, the company does not charge VAT. When paying compensation, it takes into account income tax expenses and does not charge insurance premiums - that is, it uses a risky accounting option. Insurance premiums are calculated based on the assumption that the amount of wages of employees did not exceed the maximum base for calculating insurance premiums.

The calculation (see table) shows that the riskiest option is the most profitable - payment of compensation in accordance with the collective agreement as a measure of social protection. But it is fraught for the company with disputes with inspectors. The least profitable option for the company (and for the employee) is the option with an increase in wages. The golden mean is the organization of a buffet without personalized accounting. However, for income in excess of the limit, insurance premiums are charged only in the PFR at a rate of 10 percent and in the FFOMS at a rate of 5.1 percent. This means that for highly paid workers, the benefit to the employer may shift towards higher wages.

* The maximum amount of payments in favor of individuals for the purpose of calculating insurance premiums in 2016 is 718 thousand rubles (for contributions to the FSS of the Russian Federation) and 796 thousand rubles (for contributions to the Pension Fund) (Decree of the Government of the Russian Federation of November 26, 2015 No. 1265) .

In many companies, employers organize for their employees, if not full meals, then at least the opportunity to have a snack (tea, coffee, sandwiches, etc.). In any case, the question arises whether the corresponding costs can be taken into account when calculating income tax. Not so long ago, the Ministry of Finance expanded the list of conditions that must be met in order to recognize these expenses for income tax purposes.

In general, when determining the income tax base, expenses in the form of compensation for the rise in the cost of food in canteens, buffets or dispensaries or its provision at reduced prices or free of charge are not taken into account (clause 25 of article 270 of the Tax Code). There are only two exceptions to this rule. One of them concerns special nutrition for certain categories employees in cases stipulated by the current legislation. And the second applies to cases where free or reduced-price meals are provided for by labor or collective agreements.
In turn, the list of labor costs is determined by Article 255 of the Tax Code (hereinafter referred to as the Code). In accordance with this rule, it includes any accruals to employees in cash or in kind, incentive accruals and allowances, compensatory accruals related to the mode of work or working conditions, bonuses and one-time incentive accruals, expenses associated with the maintenance of these employees and provided for by the norms legislation of the Russian Federation, labor or collective agreements. Moreover, paragraph 4 of Article 255 of the Code states that for the purposes of Chapter 25 of the Code, labor costs include, in particular, the cost of food and products provided free of charge in accordance with the legislation of the Russian Federation, as well as ... other expenses provided for by labor or collective agreement.
Thus, it turns out that a necessary and sufficient condition for attributing food provided to employees free of charge to expenses is a mention of it in the labor and (or) collective agreement. However, in reality, not everything is so simple.

All or nothing?

In a letter dated January 9, 2017 N 03-03-06 / 1/80065, representatives of the Ministry of Finance "digged", as they say, deeper. The financiers pointed out that the cost of food for employees, provided for by labor and (or) collective agreements, are considered in the tax legislation as expenses that reduce the size of the income tax base, only if they are part of the wage system. And the inclusion of amounts in the composition of labor costs, as in the case of other accruals for wages, suggests the possibility of identifying the specific amount of income of each employee, of course, with the accrual of personal income tax.
Recall that when determining the base for personal income tax in accordance with paragraph 1 of Article 210 of the Code, all taxpayer incomes received by him both in cash and in kind are taken into account. Article 41 of the Code defines income as an economic benefit in cash or in kind, taken into account if it is possible to assess it and to the extent that such benefit can be assessed. At the same time, according to subparagraph 1 of paragraph 2 of Article 211 of the Code, income received by a taxpayer in kind, in particular, includes payment (in full or in part) for him by organizations of goods (works, services), including food.
In other words, the cost of meals for employees paid by the employer is the natural income of employees, which is subject to personal income tax in general order. And, as the Ministry of Finance points out in its clarifications, an organization, as a tax agent for personal income tax, is obliged to "take all possible measures to assess and account for the economic benefits (income) received by employees" (see, for example, letters from the Ministry of Finance dated March 21, 2016 . N 03-04-05 / 15542, dated September 7, 2015 N 03-04-06 / 51326, etc.). True, at the same time, officials note that if it is still not possible to personify and evaluate the economic benefits received by each employee (for example, if meals are organized on a buffet basis), then income subject to personal income tax does not arise. Indeed, under such circumstances, it is impossible to estimate natural income, that is, who ate how much.
So let's summarize what we have. Firstly, the provision of food for workers in any case should be prescribed in labor or collective agreements. Otherwise, there will be no chance to take into account the corresponding expenses when calculating income tax.
Secondly, it is necessary to decide in advance how the meals for workers will be organized. The main question here is whether it will be possible to personalize the "natural" income of each employee. If the answer to this question is positive, then the organization includes the corresponding costs in the composition of labor costs, and the cost of meals - in the personal income tax base. Otherwise, employees will have to be "fed" at the expense of net profit, but personal income tax will not have to be calculated, withheld and paid to the budget.
It must be said that in judicial practice there are decisions in which the position of the regulatory authorities is not supported. The judges come to the conclusion that the right of an organization to recognize the expenses for the meals of employees does not depend on whether it is possible or impossible to determine the actual income of each employee (see, for example, the decision of the Federal Antimonopoly Service of the Moscow District of April 6, 2012 in case N A40 -65744/11-90-285 etc.). Nevertheless, in order to reduce the risk of claims from the tax authorities, it is advisable to at least take into account the position of the regulatory authorities.

"Personalized" VAT

If we talk about the tax consequences that arise when providing employees with free meals, then one cannot but say about VAT. The fact is that the objects of VAT are transactions for the sale of goods (works / services) on the territory of the Russian Federation (clause 1, article 146 of the Tax Code). Moreover, in order to apply the provisions of Chapter 21 of the Code, the transfer of ownership of goods, the results of work performed, the provision of services free of charge is recognized as the sale of goods (works, services). Accordingly, on the basis of this norm, it can be concluded that the cost of free meals for employees should be included in the VAT base, and "input" VAT on such goods can be deducted in a general manner (see, for example, the letter of the Ministry of Finance dated February 11, 2014 Mr. N 03-04-05/5487).
At the same time, in a letter dated March 6, 2015 N 03-07-11 / 12142, representatives of the Ministry of Finance noted that if meals are organized according to the buffet principle, that is, if it is impossible to understand who ate what and in what volume, then it is also unclear to whom, in fact, the ownership of the eaten goods passed. Therefore, the object of VAT in such situations does not arise. As a result, the organization will not have the right to deduct "input" VAT on such goods (see also the letter of the Ministry of Finance dated August 25, 2016 N 03-07-11 / 49599).