The remuneration of the chairman of the HOA is subject to taxes and contributions

Most people think that the work of the chairman of a homeowners' association (TSN) is not very difficult, and that in reality it is a rather lucrative position: sit back, do nothing, just be sure to put money in your pocket. Moreover, apartment owners do not even always know what exactly is included in housing and communal services payments, and who exactly serves them, because in principle they are not concerned about issues related to the management of an apartment building (and in vain).

In reality, the chairman is loaded with a large number of responsibilities that need to be performed efficiently and on time:

Monitors the condition of residential apartment buildings;
Visits various authorities;
Prepares staffing schedule for TSN employees;
Concludes contracts with contractors to perform various types of repair work, etc.

All this requires a serious investment of effort and time, and any work must be assessed fairly.

Chairman of the HOA: does he have the right to receive a salary?

Let's think: how often have we seen beautiful, well-kept houses in which the roofs do not leak, there are no cracks on the walls of the entrances, the area is clean, the surrounding area is tidy, and the elevators work like clockwork? The fact that such houses exist is the merit not only of apartment owners who promptly pay for the provided utilities, but also of employees of management organizations (HOA, TSN, housing cooperative, management company). And it is the chairman who manages the TSN employees. His activities are similar to the work of an ordinary manager, however, in the case of the position of chairman of the HOA there are specifics in terms of remuneration, duties and responsibilities.

The chairman of the HOA is an elected position. The period of his powers is regulated by the charter of the partnership (however, the term of chairmanship cannot be more than 2 years - such a limitation is established by the Housing Code of the Russian Federation).

Elections/re-election of TSN management belong to the powers of the highest management body - the meeting of owners, or the board (according to the charter). Responsibilities of the chairman of TSN (HOA):

Monitor the implementation of decisions approved by the board;
Give instructions to TSN officials;
Signing financial documentation;
Conclusion of agreements not related to the powers of the general meeting (board);
Develop a staffing schedule for HOA employees providing maintenance of premises;
Act on behalf of the partnership without a power of attorney.

As for the material incentives for the work of the chairman: salaries in the Russian Federation are formalized in only one way - by concluding an employment contract. This is the only document that regulates the financial relations between the hired employee and the employer.

Can the chairman of an HOA receive a salary?

As you know, in our country it is possible to receive wages by drawing up an employment contract. This is the only document that the employee concludes with the employer. But if you take into account the chairman of the HOA, then you can get confused about who is the employee and who is the employer.

On the one hand, the chairman of the HOA holds his post and himself gives instructions and pays the labor of employees . But on the other hand, he acts for the benefit and in the interests of home owners, therefore, he is considered an employee.

But with whom can an employment contract be concluded if an organization as such, that is, a legal entity, has not been formed, but the chairman is the top management?

For a very long time, such confusion led to arbitrariness and the chairmen of HOAs, taking advantage of the citizens’ ignorance, unceremoniously set their own salaries, since the law did not regulate such moments, but today times have changed.

Payment or reward?

As noted above, salary registration in Russia can only be done in the only possible legal way - by drawing up an employment contract.

But with the position of chairman of the HOA, confusion arises: who is the employee and who is the employer.

On the one hand, the chairman of the HOA is a position. He himself gives orders to employees, but on the other hand, he acts in the interests of his own home and is himself considered an employee. Then who should enter into an employment contract with whom? After all, the legal entity is not founded, but there is a chairman, and he is the head. And this is the point: the housekeeping work is being done, time is wasted, but will the chairman of the HOA get a salary? What will it be like?

For a very long time there was confusion on this point, and it led to large distortions in the understanding of how, from what, and what amount should be paid to the management of the partnership. Managers who were not particularly “clean” set their own payment amount, which was not always justified. Others, on the contrary, withdrew their candidacies from these positions because they were worried that time would be wasted (and, therefore, they would not be able to work in another place) and there would be no material compensation.

In 2011, amendments were made to the Housing Code of the Russian Federation, after which it turned out that a member of the board of a homeowners’ association does not have the right to serve in the same HOA under an employment contract (Article 147 of the Housing Code of the Russian Federation).

In practice, it has been established that the chairman of the HOA receives a salary in the form of remuneration for a specific type of work done. Why did you decide to accept it this way: a salary is a strictly established amount of money, which is accrued every month in the same amount. The activities of the chairman cannot be assessed with the same index, because one month, major work may be carried out in the house (for example, repairing the entrance or roof), and in another, all that is required from him is a banal signature on a couple of documents. Those. The chairman’s salary depends on how much work and how difficult he performs for the partnership.

Housing and communal services news

No matter how much you would like to, you will have to pay insurance premiums from the remuneration of the chairman of the HOA . Unfortunately, all the arguments of the partnerships and calls for justice are “broken” by extensive negative judicial practice.

If we analyze all the arguments that were given by the HOA in the courts, first with representatives of the Pension Fund of the Russian Federation, and now with tax authorities, then we can highlight several main ones:

The conclusion of an agreement between the HOA and its chairman is expressly prohibited by the Housing Code of the Russian Federation. Thus, according to clause 3.1 of Article 147 of the Housing Code of the Russian Federation, a member of the board of an HOA, and the chairman of the board is selected from among the members of the board, cannot combine his activities on the board of the partnership with work in the partnership under an employment contract.
The absence of an employment contract between the HOA and the chairman of the board means that the latter’s work book will not contain a record of employment in the HOA.
According to labor legislation and the Housing Code of the Russian Federation, the HOA is not obliged to provide the chairman with working conditions, namely a separately equipped room, office supplies, computer equipment, etc.
The HOA has no internal labor regulations and there is no person who would control the execution of these regulations by the HOA chairman.
The amount of remuneration for the chairman is established not by the partnership, but by the general meeting of the HOA members (clause 11, clause 2, Article 145 of the Housing Code of the Russian Federation), which allows us to conclude that the source of payment of remuneration is not the HOA, but the owners of the premises in the apartment building.
The size of the remuneration of the chairman of the board, in contrast to wages, does not depend on the qualifications of the employee, the complexity, quantity, quality and conditions of the work he performs, but is determined in a fixed form by the general meeting of the HOA members at its discretion.

The arguments are quite serious, but they do not find support from either tax officials or judges.

In terms of taxing the remuneration of the chairman of the HOA with insurance premiums, the tax authorities took an unequivocal position in favor of the budget - you have to pay. Thus, in Letter No. BS-4-11/ [email protected] , the tax authorities, referring to Article 16 of the Labor Code and Article 148-149 of the RF Housing Code of the Russian Federation, concluded that labor relations with the chairman arise as a result choosing him for a position even in the absence of an employment contract. Consequently, “remunerations paid to the chairman of the board of the HOA within the framework of civil law relations in connection with the performance by him in the interests of the partnership of services for the implementation of managerial and supervisory functions, these payments are subject to inclusion in the base for calculating insurance premiums.”

“Recent” and not very judicial practice supports the position of the tax authorities.

The Supreme Court of the Russian Federation, in Ruling No. 301-KG17-22172 dated February 12, 2021, indicated that the disputed payments represent remuneration paid to individuals within the framework of civil law relations in connection with the performance by them, in the interests of the partnership, of services for the implementation of management and control functions , and as such these payments are subject to inclusion in the base for calculating insurance contributions for compulsory pension insurance.

A similar position is given in other court decisions:

the court supported the inspectors who assessed insurance premiums for the monthly remuneration of the chairman of the HOA board, since they were able to prove the existence of an employment relationship in the absence of a written employment contract (Resolution of the Eleventh Arbitration Court of Appeal dated December 17, 2015 in case No. A55-17671/2014);
Resolution of the Arbitration Court of the Far Eastern District dated May 18, 2018 No. F03-1753/2018 in case No. A73-14804/2017;
Resolution of the Sixth Arbitration Court of Appeal dated February 12, 2018 No. 06AP-116/2018 in case No. A73-14804/2017;
Resolution of the Thirteenth Arbitration Court of Appeal dated March 23, 2017 No. 13AP-1997/2017 in case No. A56-51097/2016.

Therefore, no matter how much you want, you will have to pay taxes and fees on the remuneration of the chairman of the HOA.

Based on materials from the Burmistr.ru blog.

Can the chairman of an HOA work as an accountant?

On June 18, 2011, Law No. 123-FZ came into force, which indicates the illegality of the actions of managers (which includes the chairman of TSN) to combine their main activities with any other during the same period of working time.

The chairman can conduct accounting, but without payment. True, the meeting of the partnership may decide to increase the amount of earnings of the head, or arrange other payments if the head performs work outside the scope of his main duties.

Who and how sets the salary for the chairman of the HOA

The amount of remuneration for the chairman (and other members of the board) is established on the basis of a decision approved based on the results of the general meeting of members of the partnership (Article 145, Part 2, Clause 11 of the Housing Code of the Russian Federation).

Consequently, the question of who sets the salary for the chairman of the HOA can be given a clear answer: only the homeowners.

How is the salary of the HOA chairman determined?:

A meeting of homeowners is convened;
Acts of completed work are studied;
The topic of charging the manager a sum of money in rubles is raised.

The amount of remuneration is prescribed in the Charter. Here the law does not clearly state the upper and lower limits: the percentage must suit the head of the HOA and the members of the partnership. And not particularly influence the final amount of payment for the costs of maintaining and improving the house.

Reward

Clause 11 of Part 2 of Article 145 of the Housing Code of the Russian Federation establishes that the competence of the general meeting of members of a homeowners’ association includes determining the amount of remuneration for members of the board of the partnership, including the chairman of the board of the partnership.

Making a decision on the payment of remuneration falls within the competence of the general meeting of HOA members, and not the general meeting of owners of the premises of an apartment building. At the same time, such a decision will be mandatory for all owners of apartment buildings, including those who are not members of the HOA.

Let us immediately note that if employment contracts are concluded between the HOA and the members and the chairman of the HOA board, in this case the HOA acts as the employer and pays the corresponding taxes and fees.

Thus, in its Letter dated April 9, 2021 No. 03-15-05/23294, the Russian Ministry of Finance comes to the conclusion that “the payment of remuneration to members of the HOA board is related to the performance of their labor functions. If the general meeting of HOA members makes a decision to pay remuneration to members of the HOA board, then in this case the HOA acts as the entity paying remuneration to the above persons. Thus, based on the provisions of paragraph 1 of Article 419 of the Tax Code, the HOA is the payer of insurance contributions for compulsory pension and compulsory health insurance and for compulsory social insurance in case of temporary disability and in connection with maternity from the amounts of remuneration made by it in favor of the members of the HOA board.” .

What does the salary of the HOA chairman consist of, how to arrange it correctly

How to apply for a reward:

Invite the residents of the house to a meeting (usually convened once a month). To do this, residents are given invitations that indicate the date and time of the general meeting. The presence of at least 50% of residents is required (without this, resolutions approved at the meeting will be considered illegal);
Members of the board familiarize residents with the certificates of work performed to improve the house and surrounding area, and also indicate the cost of this work;
It is necessary to calculate the percentage of the cost of the estimate, which will be equal to the amount of remuneration (the percentage cannot be less than 3). The results of calculations are put to a vote (open or secret);
When the participants in the process come to a consensus regarding the amount of material remuneration, a protocol is drawn up. In it, the chairman is given the go-ahead to withdraw the calculated amount of money. This document is the basis for the chairman of the HOA to receive remuneration.
After this, it is conditionally accepted that the manager’s remuneration has been paid. Next, the chairman is obliged to submit a protocol to the tax authority with an application for receipt of remuneration and withdraw funds from the account.

From this list it is very clear what the salary of the chairman of the HOA consists of in reality.

Salary of an accountant in a homeowners association

Although HOAs are a non-profit organization, they are not exempt from accounting. Therefore, the manager is obliged to either do this work himself or hire an accountant. The accountant in the HOA becomes responsible for the formation of accounting policies, accounting and tax reporting.

How much to pay an employee is decided by the members of the partnership at a meeting. The exact amount will depend on whether the accountant is working full-time or part-time (if the accountant works part-time), how much work needs to be done, etc.

On average, the salary of an accountant in a homeowners' association in Russia varies between 10-12 thousand rubles.

Providing SZV TD for the chairman of the board and employees of the HOA

The SZV-TD form is filled out and submitted by the Organization to the territorial body of the Pension Fund of the Russian Federation for all employees working under employment contracts, including persons working part-time and remotely (clause 2.4 of Article 11 of the Federal Law of 01.04.1996 No. 27-FZ “On Individual ( personalized) accounting in the compulsory pension insurance system", clause 1.2 of the Procedure for filling out the form "Information on the labor activity of a registered person (SZV-TD)", approved by Resolution of the Board of the Pension Fund of the Russian Federation No. 730p)

Based on Part 1 of Article 135 of the Housing Code of the Russian Federation, a homeowners' association (hereinafter referred to as HOA) is recognized as a type of real estate owner's association, which is an association of owners of premises in an apartment building for the joint management of common property in an apartment building.

The activities of the HOA are managed by the board of the partnership, which is elected from among the members of the HOA (which can only be the owners of premises in the apartment building) by the general meeting of members (Parts 1, 2 of Article 147 of the Housing Code of the Russian Federation). In turn, the board of the HOA elects the chairman of the HOA from among its members (Part 3 of Article 147 of the Housing Code of the Russian Federation).

Clause 3.1 of Article 147 of the Housing Code of the Russian Federation establishes a ban on combining the activities of board members with work in the HOA under an employment contract.

Moreover, based on the provisions of clause 11, part 2, art. 145 of the Housing Code of the Russian Federation The chairman of the board can carry out his activities on a reimbursable basis and payments in this case are made within the framework of a civil contract (Resolution of the Arbitration Court of the Volga District dated 01.08.2019 No. F06-48559/2019 in case No. A55-30493/2018).

The letter of the Ministry of Labor and Social Protection of the Russian Federation dated March 16, 2020 No. 14-2/B-269 reflects the opinion that since the activities of a member of the HOA board are carried out on a civil basis and are regulated exclusively by the norms of civil legislation, then in relation to the chairmen of the owners’ association housing information is not submitted to the information system of the Pension Fund of the Russian Federation, including in the SZV-TD form.

According to Art. 60.1 of the Labor Code of the Russian Federation, external part-time work is the performance of regular paid work for another employer. For external part-time workers, information in the SZV-TD form is submitted in the general manner. When filling out the SZV-TD form for part-time workers, an indication of part-time work must be contained in column 4 of the tabular part of the form (PFR letter No. B-6181-19/10665-20 dated 03/05/2020).

Get expert advice

according to your situation and get expert advice.

Ask a Question

Remuneration of the chairman of the HOA - is it taxable?

Like any income, remuneration is subject to taxes.

It is generally obligatory to pay personal income tax (personal income tax), which is 13% of the amount of profit.

The chairman can pay personal income tax personally, or he can make a tax deduction with the help of a regional operator or credit organization.

As for insurance premiums, the head of TSN must pay them (Article 7 of Federal Law No. 212-FZ dated July 24, 2009; Article 20, paragraph 1 of Federal Law No. 125-FZ dated July 24, 1998; Letter of the Ministry of Labor of Russia dated March 30. 2015.No.17-4/OOG-408). But this can be done not systematically, not from each amount, but once a year, so that later there will be no problems with calculating the pension.

The article describes in detail how and from what the wage fund and other incentives for HOA employees are formed, and what norms and legal acts regulate this. Now you can clearly understand whether the head of TSN is honest with the members of the partnership and whether his work is really worth the money that is charged to pay for this activity.

Author of the publication

offline 1 day

Taxation of remuneration to the chairmen of the Councils of MKD with insurance premiums

Insurance premiums are paid by persons making payments and other benefits to individuals. Such persons can also be organizations (clause 1, clause 1, article 419 of the Tax Code of the Russian Federation).

The object of taxation of insurance contributions for organizations is payments and other remuneration in favor of individuals subject to compulsory social insurance, made, in particular, within the framework of labor relations (clause 1, clause 1, article 420 of the Tax Code of the Russian Federation).

If a homeowners association has not been created in the building, or it is not managed by a housing or other specialized consumer cooperative, but the building has more than four apartments, the owners of the premises must elect the MKD Council at a general meeting. The MKD council is elected from among the owners of premises in a given building (Part 1, Article 161.1 of the Housing Code of the Russian Federation).

At the general meeting, the owners of premises in the MKD choose the method of managing the MKD and from among the members of the MKD council they elect the chairman of the MKD Council (Parts 2 and 3 of Article 161 and Part 6 of Article 161.1 of the Housing Code of the Russian Federation).

The General Meeting of Owners also has the right to decide on the payment of remuneration to the chairman and members of the MKD Council. Such a decision must contain the conditions and procedure for paying remuneration, the procedure for determining its size (Part 8.1 of Article 161.1 of the Housing Code of the Russian Federation).

To make a decision on paying remuneration to the chairman of the MKD Council, the owners analyze the list of his powers, which are established by Parts 7 and 8 of Art. 161.1 Housing Code of the Russian Federation.

Article 16 of the Labor Code of the Russian Federation determines that in cases and in the manner established by labor legislation and other regulations containing labor law norms, or the charter of the organization, labor relations arise as a result of election to a position.

Selection and legal status of the MKD council
68487
7