Головна Analytics and judicial practice Analitics With the new Code to new problems or a lot of hype surrounding small explanation
With the new Code to new problems or a lot of hype surrounding small explanation
Analitics and judicial practice - Analitics

A kind of tax "hit" in recent days has commented to the press service of STA of Ukraine with links to materials taxation department of STA of Ukraine. Posted 1/10/2011 this stuff on the official site chief. The following is a snippet of it that turns the most interesting:
" New tax law brings small businesses minimize the schemes.
Subjects  of managing while minimizing taxes and fees (including the Pension Fund) are often used scheme transfer tax obligations coupled to individual entrepreneurs. Thus, between enterprises and workers who work with them on a regular basis, concluded contracts (agreements), which was carried out payment for work performed, services rendered self-employed persons (instead of payroll).
To prevent loss of the Tax Code of Ukraine for the self-employed individuals are provided the opportunity to be employees within their business? "
The status of this information is not very clear (tax advice, analytical material). Missing and references to specific provisions of the Tax Code of Ukraine (TCU). However, placement on the official website STA of Ukraine requires a serious approach.
Of the following text message, first of all, it is clear that it applies to employees that are both registered as entrepreneurs-individuals that are entrepreneurs (the terminology of TCU -  Self-employed persons). It is also clear that the first case of entrepreneurs who are in the simplified tax system (flat tax).
Further provides that such persons can not be employees within their business. Thus, we can conclude that this limit applies not only the enterprise, where a citizen is under a labor contract, but in general any enterprise (institution, organization).
Lack of references to specific provisions in TCU information, commented, forcing analysts to do it for tax.
First, pay attention to the relevant part p.14.1.226 TCU. It defines self-employed person - taxpayer who is an individual - entrepreneur or independent professional activity leads provided that such person is not an employee within that business or independent professional activity.   
You can then make references to the p.14.1.222 - equal to the employer company (its subsidiaries, affiliates, or other separate unit of representation), or permanent resident of self-employer, comprising (paid) income for their work and/or service under civil contracts if it is found that the relationship from the agreement is actually labor.
Similarly, the situation is considered in p.177.8 - in calculating the (payment) individual - entrepreneur income from operations carried out within his choice of activities, subject entity that has (pay) such income is not keeping income tax if the individual - entrepreneur who receives such income, provided a copy of the certificate of registration as its subject of  business entity. This rule does not apply in the case of charge (payment) of income for the performance of certain work and/or services in accordance with civil contracts when it is found that the relationship from the agreement is actually a migrant, and the parties to the contract may be equal to the employee or employer .    
In fact, there is a position where STA of Ukraine above a certain company employees lose their status of subject business activity (and hence eligible for simplified taxation). Also a civil or commercial contract between the worker and now will be considered as regular employment with appropriate taxation.

What businessman in a similar situation?

Analysts agree that in the media commented GNA crucial piece is: "for self-employed individuals are provided the opportunity to be employees within their business".
So essential is identifying those economic activities carried out by the entrepreneur-employee. Only within these limits and acting in negative tax consequences at the conclusion of appropriate civil or commercial contracts (equating them with employment contracts). Thus, the scope of the above message of  STA, commented that, is limited.
In our opinion, for employees, who are the entrepreneurs on a common system of taxation, the crucial importance will be a simple comparison post their name, list of labor responsibilities under the labor contract (job description) and the subject of appropriate civil or commercial contracts concluded with such person. Obviously, these conditions should not, for example solicitor hired worker also conclude contracts for legal services as an entrepreneur. In this case, such agreements shall be considered as employment, with appropriate taxation. On the other hand, it is clear that a lawyer may conduct business in other areas, not coupled to the right.
For entrepreneurs who are in the simplified tax system will be crucial to have the activities listed in their certificate of single tax payment linked to codes of Code of foreign economic activity. It should be supervised to ensure that these activities do not coincide with labor functions such person.
To avoid misunderstandings, should check the correct spelling, by the post new 003:2010 control of professions, approved by State consumer standard from 28.07.2010 № 327.
Moreover, under the conditions of the above rules TCU is time to address the differences between labor and civil or commercial contracts. It should be emphasized that, in tests supervisory authorities will review contracts not by name, and content. Yes to civil or commercial contract would include the following provisions (to tax not identied with his employment agreement):
• The parties are governed by Civil or Commercial Codes of Ukraine
• It is advisable to call the parties about it - Client and Contractor
• Parties shall bear civil liability for economic or non-performance or breach of contract (which is preferred - Fine, penalty)
• Contractor performs the contract at their own risk, not subject to internal labor regulations and it is not covered by collective agreement
• The results of the works or services are accepted by the relevant act.
The list goes on and on, but the above is necessary for our situation minimum.

Sergei Tenkov
Doctor of Philosophy in Law