Compensation for milk is subject to insurance premiums. Passing off milk as harmful! Is it subject to personal income tax? Can it be included in income tax expenses? Do I need to pay insurance premiums? Who is eligible for mandatory free meals?

Relations related to the calculation and payment (transfer) of insurance premiums to extra-budgetary funds are regulated by the Federal Law of July 24, 2009 N 212-FZ "On insurance contributions to Pension fund Russian Federation, Social Insurance Fund of the Russian Federation, Federal Compulsory Medical Insurance Fund and territorial compulsory medical insurance funds."

In Art. 9 Federal Law N 212-FZ contains an exhaustive list of amounts not subject to insurance premiums for payers of insurance premiums making payments and other remuneration to individuals. This list also includes compensation payments. However, not all compensation payments are tax-free. Let's take a closer look and, if possible, analyze each compensation payment, not.

So, according to clause 2, part 1, art. 9 of Federal Law N 212-FZ are not subject to taxation of all types of insurance premiums established by the legislation of the Russian Federation, legislative acts of the constituent entities of the Russian Federation, decisions of representative bodies local government compensation payments (within the limits established in accordance with the legislation of the Russian Federation) related to:

With compensation for harm caused by injury or other damage to health (clause “a”, clause 2, part 1, article 9 of Federal Law No. 212-FZ).

Please note that payments related to compensation for harm caused by injury or other damage to health also include compensation for moral damage or damage;

With free provision of residential premises, payment for residential premises and utilities, food and products, fuel or corresponding monetary compensation (clause “b”, clause 2, part 1, article 9 of Federal Law N 212-FZ);

With payment of the cost and (or) issuance of the due allowance in kind, as well as payment cash in return for this allowance (clause “c”, clause 2, part 1, article 9 of Federal Law No. 212-FZ).

It should be noted that, within the meaning of this subparagraph, the object of taxation with insurance premiums is absent only if the allowance in kind, as well as the payment of funds in exchange for this allowance, are provided by virtue of legislative requirements and within the limits of legally established norms.

So, for example, reimbursement of the cost of food rations for crew members of aircraft within the limits established by Decree of the Government of the Russian Federation of December 7, 2001 N 861 “On food rations for crews of sea, river and aircraft” and the Procedure for providing catering for aircraft crews civil aviation, approved by Order of the Ministry of Transport of the Russian Federation dated September 30, 2002 N 122, provided that there are no specialized public catering organizations at off-base airports (airfields, landing sites);

With payment of the cost of food, sports equipment, equipment, sports and dress uniforms received by athletes and employees of physical education and sports organizations for the educational and training process and participation in sports competitions (subclause “d”, paragraph 2, part 1, article 9 of the Federal Law N 212-FZ);

With the dismissal of employees, with the exception of compensation for unused vacation(subclause “e”, clause 2, part 1, article 9 of Federal Law No. 212-FZ).

Based on this norm, compensation paid for unused vacation associated with the dismissal of employees is subject to insurance premiums. However, if the dismissed employee is paid severance pay in the event of termination of the employment contract due to the liquidation of the organization, or in the event of a reduction in the number or staff of the organization's employees, or in the event of termination of the employment contract on the grounds specified in Part 3 of Art. 178 Labor Code Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation), then this benefit is not subject to insurance premiums. In other cases, that is, on grounds not provided for in Art. 178 of the Labor Code of the Russian Federation, severance pay paid to dismissed employees is subject to insurance contributions.

It should be noted that if the dismissal of an employee was declared illegal by the court and he was reinstated in his previously held position, then the amounts previously paid in connection with dismissal for the period of employment cannot be further considered as compensation payments related to the dismissal, which means and there are no grounds for exempting them from insurance premiums;

With reimbursement of expenses for vocational training, retraining and advanced training of workers (subclause “e”, clause 2, part 1, article 9 of Federal Law No. 212-FZ).

In relation to this norm, we can say that if, for example, employees who successfully study via correspondence courses in state accredited educational institutions higher vocational education, 1 time per academic year, travel to the location of the corresponding educational institution and vice versa, then this payment is not subject to insurance premiums. At the same time, payment to the employee study leave in the amount of average earnings is subject to insurance contributions in accordance with the generally established procedure;

With expenses of an individual in connection with the performance of work, provision of services under civil contracts (subclause “g”, paragraph 2, part 1, article 9 of Federal Law No. 212-FZ).

Let us note that compensation for the costs of an individual aimed at paying off expenses (documented), for example, under a contract where the work performed was carried out by him in the interests of the customer, cannot be considered as payment for the work itself. This is included in the above subparagraph. In such circumstances, payments aimed at compensating costs (in particular, to pay for travel, accommodation and other expenses at work sites) are not subject to insurance premiums. Therefore, from the total amount of payments under the contract, it is necessary to exclude actually incurred expenses (confirmed by supporting documents - hotel invoices, copies of railway or air tickets, etc.) for moving and living at the place of work under this agreement, if this agreement provides for payment of the mentioned expenses . An exception is daily allowance, which is paid only in the presence of an employment relationship;

With the employment of workers dismissed in connection with the implementation of measures to reduce the number or staff, reorganization or liquidation of the organization, in connection with the termination of activities by individuals as individual entrepreneurs, termination of powers by notaries engaged in private practice and termination of the status of a lawyer, as well as in connection with the termination of activities by other individuals whose professional activity in accordance with federal laws is subject to state registration and (or) licensing (subclause “z”, clause 2, part 1, article 9 of Federal Law No. 212-FZ).

In relation to this norm, we can say that the following are recognized as compensation payments not subject to insurance contributions:

payment of severance pay in the amount of average monthly earnings in case of liquidation of the organization, reduction of the number or staff of the organization’s employees;

payment of average monthly earnings for the period of employment, for a period of no more than two months from the date of dismissal (including severance pay), upon liquidation of the organization, reduction in the number or staff of the organization’s employees;

payments made in exceptional cases - in the amount of the average monthly salary retained by the dismissed employee during the third month from the date of dismissal by decision of the employment service body;

payments to the head or members of the collegial executive body organizations, in case of termination of the employment contract with them before its expiration;

With execution an individual labor responsibilities, including in connection with moving to work in another area, with the exception of (clause “and” clause 2, part 1, article 9 of Federal Law No. 212-FZ):

payments in cash for work under difficult, harmful and (or) dangerous working conditions, except for compensation payments in an amount equivalent to the cost of milk or other equivalent food products;

payments in foreign currency in exchange for daily allowances made in accordance with the legislation of the Russian Federation by Russian shipping companies crew members of ships traveling abroad, as well as payments in foreign currency to crew members of Russian aircraft operating international flights.

It follows from this subclause that payments in cash for work under difficult, harmful and (or) dangerous working conditions, in addition to compensation payments in an amount equivalent to the cost of milk or other equivalent food products, are subject to insurance premiums. Payments in foreign currency in lieu of daily allowances made in accordance with the legislation of the Russian Federation by Russian shipping companies to crew members of ships sailing abroad, and payments made in foreign currency to crew members of Russian aircraft operating international flights are subject to insurance premiums.

The following compensation payments are also subject to insurance premiums:

Produced to reimburse an employee’s expenses related to renting housing in connection with moving to work in another area or in cases where an organization, on its own initiative, pays a nonresident employee for rented housing or accommodation in a dormitory.

Carried out by the organization in the form of payment for air tickets for employees or in the form of reimbursement to employees for the cost of travel from their place of residence to the place of assembly for sending to a rotation camp or from their place of residence to the facility and back.

Workers engaged in work with harmful conditions labor, milk or other equivalent food products are provided. Let's consider problematic issues taxation on these transactions.

In jobs with hazardous working conditions, workers are given milk or other equivalent food products free of charge according to established standards (Article 222 of the Labor Code of the Russian Federation).

The norms and conditions for the free distribution of milk or other equivalent food products, as well as therapeutic and preventive nutrition, are established in the manner determined by the Government of the Russian Federation.

Decree of the Government of the Russian Federation dated March 13, 2008 No. 168 “On the procedure for determining the norms and conditions for the free issuance of therapeutic and preventive nutrition, milk or other equivalent food products and making compensation payments in an amount equivalent to the cost of milk or other equivalent food products”, stipulates that that workers engaged in work with hazardous working conditions are given free milk or other equivalent food products in accordance with the list of harmful production factors, under the influence of which it is recommended to consume milk or other equivalent food products for preventive purposes.

For workers engaged in work with hazardous working conditions, the provision of milk or other equivalent food products may be replaced, upon their written applications, with a compensation payment in an amount equivalent to the cost of milk or other equivalent food products. Such a replacement must be provided for by the collective agreement and (or) employment contract.

The very procedure for making a compensation payment in an amount equivalent to the cost of milk or other equivalent food products (hereinafter referred to as the procedure).

A list of harmful production factors, under the influence of which, for preventive purposes, it is recommended to consume milk or other equivalent food products (hereinafter referred to as the List), as well as the rules and conditions for the free issuance of milk or other equivalent food products to employees engaged in work with hazardous working conditions , which can be given to employees instead of milk, are approved by Order of the Ministry of Health and Social Development of the Russian Federation dated February 16, 2009 No. 45n.

According to clause 2 of the Norms and Conditions for the Distribution of Milk, free distribution of milk or other equivalent food products is carried out to employees on days of actual employment in jobs with hazardous working conditions, due to the presence of harmful production factors in the workplace, provided for in the List.

The rate for free milk distribution is 0.5 liters per shift, regardless of the duration of the shift (clause 4 of the norms and conditions for milk distribution).

According to clause 13 of the Norms and Conditions for the Distribution of Milk, if safe (acceptable) working conditions are ensured, confirmed by the results of certification of workplaces and the conclusion of the state examination of working conditions, the employer decides to stop the free distribution of milk or other equivalent food products, taking into account the opinion of the primary trade union organization or other representative body of workers.

Personal income tax when issuing milk to employees

By general rule All types of compensation payments established by the current legislation of the Russian Federation within the limits of the norms are not subject to personal income tax (paragraph 2, paragraph 3, article 217 of the Tax Code of the Russian Federation).

Income in the form of the cost of milk given to employees on days of actual employment in jobs with hazardous working conditions is not subject to personal income tax in accordance with the Rules and Conditions, approved. by order of the Ministry of Health and Social Development of the Russian Federation dated February 16, 2009 No. 45n (Letters of the Ministry of Finance and the Federal Tax Service of the Russian Federation dated August 5, 2016 No. GD-4-11/14360@, dated December 11, 2014 No. BS-3-11/4256@).

In the event that milk is given to employees on days when they are not engaged in work with hazardous working conditions, income is subject to personal income tax in the generally established manner (Letter of the Ministry of Finance of the Russian Federation dated October 16, 2014 No. 03-04-05/52286).

If an employee performed work under hazardous working conditions for half of the established work shift, the employer is obliged to give him milk free of charge, based on the norm of 0.5 liters per shift.

In addition, according to the financial department, income in the form of milk or other equivalent food products issued to employees whose working conditions are recognized as acceptable based on the results of certification are subject to personal income tax (Letter of the Ministry of Finance of the Russian Federation dated March 31, 2014 No. 03-03-R3/13985 ).

However, as evidenced judicial practice, the cost of milk given to employees for working in hazardous conditions is not subject to personal income tax, even in the absence of workplace certification. As the courts note, the basis for issuing milk to an employee is his actual employment at work under the influence of production factors specified in Appendix No. 3 to the Order of the Ministry of Health and Social Development of the Russian Federation dated February 16, 2009 No. 45n. Therefore, certification is not a condition for providing compensation for harmful working conditions. It depends on the presence of harmful production factors in the workplace, under the influence of which milk consumption is recommended for preventive purposes. Therefore, the cost of the milk issued does not form the employee’s income subject to personal income tax (Resolutions of the Federal Antimonopoly Service of the West Siberian District dated July 10, 2014 No. A27-16004/2013, Ural District dated March 13, 2012 No. F09-1132/12).

Expenses in the form of the cost of free milk provided to employees

For the purposes of calculating income tax, the company can include compensation charges related to working conditions, provided for by legislation, labor (collective) agreements in labor costs (clause 4 of Article 255 of the Tax Code of the Russian Federation).

Is it possible to take into account as part of the recognized expenses the cost of free milk given to employees (compensation for milk) or other equivalent food products if, according to the results of certification, working conditions at individual workplaces were recognized as acceptable due to the absence of harmful production factors?

In this situation, the company’s expenses for providing free milk to employees cannot be attributed to compensation payments, since working conditions in which the levels of exposure to harmful production factors do not exceed established standards are not recognized as harmful (Article 209 of the Labor Code of the Russian Federation). In such situations, according to the regulatory authorities, the company can take into account the cost of free milk given to employees as part of labor costs as payment in kind (Letters of the Federal Tax Service of the Russian Federation dated May 8, 2014 No. GD-4-3/8858@, Ministry of Finance of the Russian Federation dated March 31, 2014 No. 03-03-R3/13985).

That is, if such a payment is provided for by an employment or collective agreement, then regardless of its size, the cost of milk can be taken into account as part of labor costs (clause 25 of Article 255 of the Tax Code of the Russian Federation). Otherwise (there are no harmful factors, the supply of milk is not provided for by either a collective or employment contract), the cost of milk is not taken into account for profit tax purposes (clause 25 of Article 270 of the Tax Code of the Russian Federation).

Insurance premiums in the absence of workplace certification

All types of compensation payments established by the legislation of the Russian Federation (within the limits established in accordance with the legislation of the Russian Federation) related to the performance of labor duties by an individual (clause “and” clause 2, part 1, article 9 of the Federal Law dated July 24, 2009 No. 212-FZ “On insurance contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, and the Federal Compulsory Medical Insurance Fund”).

The question remains controversial about the need to include in the base for calculating insurance premiums the cost of milk (compensation payments) issued to employees engaged in work with hazardous working conditions, if the company has not carried out a special assessment of working conditions.

Example No. 1

The company for the period 2013-2014. Milk was provided to employees on the basis of a collective agreement, salary slips, individual insurance contribution cards, and a list of positions. Milk was given to employees for whom milk was not provided in accordance with the workplace certification card for working conditions.

During the inspection of the Federal Social Insurance Fund of the Russian Federation, it was concluded that the base for calculating insurance premiums by the amount of payment for milk was underestimated, since the working conditions of workers were not recognized as harmful as a result of a special assessment of working conditions (before 01/01/2014 - certification of workplaces).

However, the court sided with the company based on the following arguments.

The basis for issuing milk or therapeutic and preventive nutrition to an employee is his actual employment in work associated with harmful production factors.

The above standards do not provide for certification as a condition for providing compensation.

That is, carrying out certification and recognizing working conditions in individual workplaces as acceptable in terms of chemical, biological and physical factors does not relieve the employer of the obligation to provide compensation to the employee on the days of actual employment in work associated with the presence of harmful production factors in the workplace.

Clause 14 of the Norms and Conditions for the Distribution of Milk stipulates that other issues related to the free distribution of milk or other equivalent food products are resolved by the employer independently, taking into account the provisions of the collective agreement.

And during the audited period, the company had in force for 2012 - 2014, which provided for the employer’s obligation to provide milk to employees working in hazardous working conditions.

The general director of the company, in agreement with the trade union committee, approved a list of professions and positions with hazardous working conditions, which include free milk (with a milk distribution rate of 0.5 liters per shift).

In accordance with clause 13 of the Order of the Ministry of Health and social development RF dated February 16, 2009 No. 45n, the basis for an employer’s decision to stop providing free milk or other equivalent food products to employees are:

availability of results of a special assessment of working conditions;

consent of the primary trade union organization or other representative body of employees (if the employer has one) to terminate the free distribution of milk or other equivalent food products to employees based on the results of a special assessment of working conditions at their workplaces.

If the employer does not have data on the results of a special assessment of working conditions or fails to comply with the above requirements, the procedure for free distribution of milk or other equivalent food products, which was in force before the entry into force of Order No. 45n dated 02.16.2009, is maintained.

The company's trade union organization refused to give consent to stop the free distribution of milk or other equivalent products to employees whose workplace certification results for working conditions did not reveal harmful production factors or exceeding established standards for them.

Thus, the free provision of milk or other equivalent products is not made dependent on the results of certification of workplaces (Decision of the Voronezh Region AS dated July 5, 2016 No. A14-1610/2016).

Consequently, before the certification of workplaces, the company is obliged to provide workers engaged in work with hazardous working conditions with free milk in accordance with the adopted collective agreement.

Failure to carry out certification is not a basis for additional assessment of insurance premiums and can only serve as the basis for conclusions about violation of labor laws (Resolution of the AS of the North-Western District dated 08.08.2016 No. A44-3876/2015).

A similar legal position is contained in the Resolutions of the Court of Appeal of the Novgorod Region dated August 8, 2016 No. A44-3876/2015, the Seventeenth Arbitration Court of Appeal dated November 26, 2015 No. A71-6244/2015, and the Court of the West Siberian District dated June 18, 2015. No. A27-8720/2014 and dated 06.11.2014 No. A27-7912/204, AS of the Volga-Vyatka District dated 09.10.2014 No. A79-8337/2013, FAS of the Ural District dated 25.04.2014 No. F09- 2274/2014.

Working conditions are recognized as safe

However, if, according to the conclusion of the certification commission, the submitted certification cards and protocols for assessing working conditions, working conditions and workplaces are recognized as safe - optimal or acceptable, cash payments to employees in an amount equivalent to the cost of milk are subject to insurance premiums.

According to Art. 219 of the Labor Code of the Russian Federation in case of provision at workplaces without hazardous conditions labor confirmed by the results of workplace certification, compensation for workers is not established. Therefore, if there is no confirmation of the actual employment of workers in hazardous conditions and the impact on them of harmful factors provided for in the List, the provision of milk to workers and the payment of compensation in exchange for its cost is not compensatory in nature (Resolution of the Autonomous District of the Central District dated July 28, 2016 No. A68-7691/2015) . Also subject to insurance premiums is the cost of milk provided to employees in excess of the norms established by law.

VAT accrual on the cost of milk transferred to employees

If a company provides employees engaged in work with hazardous working conditions free milk or other equivalent food products according to established standards, and the costs of purchasing this milk or other equivalent food products are included in the costs of production and sales of products, then VAT does not arise (Letter Federal Tax Service of the Russian Federation for Moscow dated November 27, 2013 No. 16-15/123500).

However, tax authorities in a number of cases (for example, in the absence of certification of workplaces) try to make the distribution of milk to employees subject to VAT. Let us recall that for the purposes of calculating VAT, the gratuitous transfer of ownership of goods, the results of work performed, or the provision of services is recognized as the sale of goods, work, and services (clause 1 of Article 39, subclause 1 of clause 1 of Article 146 of the Tax Code of the Russian Federation).

As judicial practice shows, regardless of the certification of workplaces, the distribution of milk to “harmful workers” is not subject to VAT. Thus, if the costs of providing milk to employees engaged in work with hazardous working conditions are documented and, in accordance with Article 252 of the Tax Code of the Russian Federation, relate to costs associated with production and sales, then the provision of milk to company employees cannot be subject to VAT. (AC decision Belgorod region dated June 24, 2015 No. A08-831/2015).

Example No. 2

The actual distribution of milk was carried out in accordance with the lists of positions and professions approved by the managing director and agreed upon by the trade union committee, in accordance with collective agreements.

Harmful factors present in the organization's production are included in the List of harmful production factors, under the influence of which, for preventive purposes, it is recommended to consume milk or other equivalent food products, approved by Order of the Ministry of Health of the Russian Federation dated March 28, 2003 No. 126. The facts of the company's purchase of milk and its distribution to employees are confirmed by relevant documents.

However, according to the inspectorate, the transfer of milk to employees is recognized as an operation subject to VAT. Having assessed the evidence presented in the case file, the courts came to the conclusion that the company’s distribution of milk to employees was carried out within the framework of relations to provide guarantees and compensation caused by exposure to harmful factors during the performance of work duties, and therefore is not subject to VAT.

In addition, in paragraph 12 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 30, 2014 No. 33 “On some issues that arise in arbitration courts when considering cases related to the collection of VAT”, it is explained that operations of free provision to their employees are not subject to taxation provided for labor legislation guarantees and compensation in kind (for example, in the presence of harmful and (or) dangerous working conditions).

Based on this, the provision of milk to “pests” is not subject to VAT (Resolution of the Central District Administration of March 4, 2016 No. A08-831/2015).

In this case, “input” VAT is accepted for deduction subject to compliance with general conditions(Clause 1, Clause 2, Article 171, Clause 1, Article 172 of the Tax Code of the Russian Federation).

But if working conditions are considered normal based on the results of a special assessment, then the distribution of milk will be regarded as a gratuitous transfer and subject to VAT (Letter of the Ministry of Finance of the Russian Federation dated 01.08.2007 No. 03-03-06/4/104).

According to the assessment of working conditions, a mechanic assembling metal structures who works with tacks is entitled to milk. This profession is not preferential. Is compensation for milk subject to personal income tax and insurance contributions?

WITH the amount of monetary compensation provided to the employee in accordance with the law not subject to personal income tax(Clause 3 of Article 217 of the Tax Code of the Russian Federation, letters of the Ministry of Finance of Russia dated October 16, 2014 No. 03-04-05/52286, Federal Tax Service of Russia dated February 14, 2012 No. ED-3-3/433) and insurance premiums(subparagraph “and” paragraph 2, part 1, article 9 of the Law of July 24, 2009 No. 212-FZ, letter of the Ministry of Health and Social Development of Russia dated August 5, 2010 No. 2519-19; subparagraph 2, paragraph 1, article 20.2 Law of July 24, 1998 No. 125-FZ).

The rationale for this position is given below in the materials of the Glavbukh System

Who is eligible for mandatory free meals?

Mandatory free meals are provided only for certain categories of personnel:

Employees who work in hazardous conditions are entitled to milk or other equivalent products.* Employees working in particularly hazardous conditions must be provided with therapeutic and preventive nutrition. This is enshrined in the Labor Code of the Russian Federation. Moreover, in some cases, an organization can purchase therapeutic and preventive nutrition through contributions to insurance against accidents and occupational diseases.

The assessment of dangerous and harmful production factors by the nature of the work performed and working conditions is carried out on the basis of data obtained from the results of:*

In the process of special assessment of working conditions (job certification), the degree of harmfulness of working environment factors is established on the basis of certain standards. For example, those given in Guide R 2.2.2006-05 “Guide to the hygienic assessment of factors in the working environment and the labor process. Criteria and classification of working conditions”, approved by Rospotrebnadzor on July 29, 2005. In accordance with these criteria, if the concentration of harmful substances does not exceed their maximum permissible concentration (MPC), then the working conditions are not recognized as harmful or dangerous (they are considered acceptable). The results of a special assessment of working conditions (workplace certification) will confirm the presence of harmful production factors in the employee’s work (clause 3 of the Procedure approved by order of the Ministry of Health and Social Development of Russia dated April 26, 2011 No. 342n, clause 2 of Article 7 of the Law of December 28, 2013 . No. 426-FZ).

personal income tax and insurance premiums

Regardless of the taxation system applied, do not charge the cost of free food (the amount of monetary compensation in exchange for food) provided by law and within the established standards to employees who work in hazardous conditions:*

Personal income tax (

Employees engaged in work with hazardous working conditions are provided with milk or other equivalent food products. Let us consider problematic taxation issues for these transactions.

In jobs with hazardous working conditions, workers are given milk or other equivalent food products free of charge according to established standards (Article 222 of the Labor Code of the Russian Federation).

Decree of the Government of the Russian Federation dated March 13, 2008 No. 168 “On the procedure for determining the norms and conditions for the free issuance of therapeutic and preventive nutrition, milk or other equivalent food products and making compensation payments in an amount equivalent to the cost of milk or other equivalent food products”, stipulates that that employees engaged in work with hazardous working conditions are given free milk or other equivalent food products in accordance with the list of harmful production factors, under the influence of which the consumption of milk or other equivalent food products is recommended for preventive purposes.

The very procedure for making a compensation payment in an amount equivalent to the cost of milk or other equivalent food products (hereinafter referred to as the Procedure).

The rate for free milk distribution is 0.5 liters per shift, regardless of the duration of the shift (clause 4 of the Norms and conditions for milk distribution).

Personal income tax when issuing milk to employees

As a general rule, all types of compensation payments established by the current legislation of the Russian Federation within the limits of the norms are not subject to personal income tax (paragraph 2, paragraph 3, article 217 of the Tax Code of the Russian Federation).

However, as judicial practice shows, the cost of milk given to employees for working in hazardous conditions is not subject to personal income tax, even in the absence of workplace certification. As the courts note, the basis for issuing milk to an employee is his actual employment at work under the influence of production factors specified in Appendix No. 3 to the Order of the Ministry of Health and Social Development of the Russian Federation dated February 16, 2009 No. 45n. Therefore, certification is not a condition for providing compensation for harmful working conditions. It depends on the presence of harmful production factors in the workplace, under the influence of which milk consumption is recommended for preventive purposes. Therefore, the cost of the milk issued does not form the employee’s income subject to personal income tax (Resolutions of the Federal Antimonopoly Service of the West Siberian District dated July 10, 2014 No. A27-16004/2013, Ural District dated March 13, 2012 No. F09-1132/12).

Expenses in the form of the cost of free milk provided to employees

Insurance premiums in the absence of workplace certification

EXAMPLE No. 1

However, the court sided with the company based on the following arguments.

The basis for issuing milk or therapeutic and preventive nutrition to an employee is his actual employment in work associated with harmful production factors.

The above standards do not provide for certification as a condition for providing compensation.

And during the period under review, the company had a collective agreement in force for 2012 - 2014, which provided for the employer’s obligation to provide milk to employees working in hazardous working conditions.

In accordance with clause 13 of the Order of the Ministry of Health and Social Development of the Russian Federation dated February 16, 2009 No. 45n, the basis for an employer’s decision to stop providing free milk or other equivalent food products to employees are:

availability of results of a special assessment of working conditions;
consent of the primary trade union organization or other representative body of employees (if the employer has one) to terminate the free distribution of milk or other equivalent food products to employees based on the results of a special assessment of working conditions at their workplaces.

Thus, the free provision of milk or other equivalent products is not made dependent on the results of certification of workplaces (Decision of the Voronezh Region AS dated July 5, 2016 No. A14-1610/2016).

Working conditions are recognized as safe

According to Art. 219 of the Labor Code of the Russian Federation, in the case of ensuring safe working conditions in the workplace, confirmed by the results of certification of workplaces, compensation for workers is not established. Therefore, if there is no confirmation of the actual employment of workers in hazardous conditions and the impact on them of harmful factors provided for in the List, the provision of milk to workers and the payment of compensation in exchange for its cost is not compensatory in nature (Resolution of the Autonomous District of the Central District dated July 28, 2016 No. A68-7691/2015) . Also subject to insurance premiums is the cost of milk provided to employees in excess of the norms established by law.

VAT accrual on the cost of milk transferred to employees

If a company provides employees engaged in work with hazardous working conditions free milk or other equivalent food products according to established standards, and the costs of purchasing this milk or other equivalent food products are included in the costs of production and sales of products, then the object of VAT taxation does not arise (Letter of the Federal Tax Service of the Russian Federation for Moscow dated November 27, 2013 No. 16-15/123500).

As judicial practice shows, regardless of the certification of workplaces, the distribution of milk to “harmful workers” is not subject to VAT. Thus, if the costs of providing milk to employees engaged in work with hazardous working conditions are documented and, in accordance with Article 252 of the Tax Code of the Russian Federation, relate to costs associated with production and sales, then the provision of milk to company employees cannot be subject to VAT. (Decision of the Belgorod Region AS dated June 24, 2015 No. A08-831/2015).

EXAMPLE No. 2

In addition, in paragraph 12 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 30, 2014 No. 33 “On some issues that arise in arbitration courts when considering cases related to the collection of VAT”, it is explained that operations of free provision to their employees are not subject to taxation guarantees and compensation in kind provided for by labor legislation (for example, in the presence of harmful and (or) dangerous working conditions).

Based on this, the provision of milk to “pests” is not subject to VAT (Resolution of the Central District Administration of March 4, 2016 No. A08-831/2015).

In this case, “input” VAT is accepted for deduction if the general conditions are met (clause 1, clause 2, article 171, clause 1, article 172 of the Tax Code of the Russian Federation).

Compensation in return for milk: legal basis payments and taxes (Larina N.)

Article posted date: 02/27/2015

In jobs with hazardous working conditions, workers are given milk or other equivalent food products free of charge according to established standards. However, the current legislation provides for the possibility of replacing the delivery of milk with payment of monetary compensation to the employee. This publication discusses some legal aspects of the calculation and payment of this compensation by employers.

Accrual conditions

In accordance with Art. 222 of the Labor Code of the Russian Federation, payment of compensation in exchange for the provision of milk is possible if:
- the employer will provide for it in the collective agreement ( employment contracts with employees);
- employees will submit written applications for payment of compensation in exchange for the provision of milk;
- harmful working conditions (i.e. the employee’s right to receive free food) will be confirmed by the results of an inspection (special assessment) of working conditions.
The list of harmful production factors under the influence of which the consumption of milk (other equivalent food products) is recommended, the Norms and conditions for their free issuance, as well as the Procedure for payment of monetary compensation are approved by Order of the Ministry of Health and Social Development of Russia dated February 16, 2009 N 45n (hereinafter referred to as Order N 45n).
In accordance with clauses 2 and 3 of the said document, the amount of compensation payment is accepted as equivalent to the cost of milk with a fat content of at least 2.5% or equivalent food products in retail trade at the location of the employer on the territory of the administrative unit of a constituent entity of the Russian Federation. Compensation payments must be made at least once a month.
I would like to analyze one of the most difficult situations related to the conditions for calculating compensation. Let's consider next example. In employment contracts with employees, the organization provided for the payment of compensation in exchange for the provision of milk to employees who work in hazardous working conditions. The next inspection of working conditions - namely a special assessment of working conditions - in the organization was carried out at the end of 2014. The working conditions of some categories of employees, based on the results of the special assessment, were recognized as acceptable.
Article 74 of the Labor Code of the Russian Federation obliges the employer to notify employees of upcoming changes in employment contracts (in this case, the abolition of the possibility of paying compensation in exchange for milk) in writing two months in advance. The question arises: does the employee have the right to demand payment of compensation within two months after the special assessment, and is the employer obliged to satisfy these requirements? It is important to understand that the above requirement applies to cases of changes to the employment contract at the initiative of the employer. This follows from paragraph. 1 tbsp. 74 Labor Code of the Russian Federation. In other situations (for example, in the case of a change at the initiative of an employee), there is no need to comply with the two-month notice rule.
In the case under consideration, the change occurred due to circumstances beyond the control of either the employee or the employer’s administration. After all, a special assessment is only an impartial check carried out in the manner prescribed by regulatory legal acts. Therefore, immediately after the results of a special assessment confirm the absence of harmful factors in the employee’s working conditions, the payment of compensation can be canceled. If the employee intends to refuse compensation in exchange for milk on his own initiative, he should submit an application to the employer about this. It is explained this way. Based on Art. 222 of the Labor Code of the Russian Federation, compensation is paid based on the employee’s application. Consequently, cancellation of this order is also possible upon application. If the condition for payment of compensation was provided for in the employment contract, it will also be necessary to draw up an additional agreement to the employment contract, signed by both the employee and the employer’s representative.

Taxes

Let us immediately note that compensation in return for the provision of milk is not subject to any salary taxes or contributions. Personal income tax does not need to be calculated on the basis of clause 3 of Art. 217 Tax Code of the Russian Federation. It follows from this legal norm that all types of compensation payments established by the current legislation of the Russian Federation, legislative acts of the constituent entities of the Russian Federation, decisions of representative bodies of local self-government (within the limits of the norms established in accordance with the legislation of the Russian Federation) related to the payment of cost and (or) are exempt from personal income tax. issuance of the due allowance in kind, as well as the payment of funds in exchange for this allowance.
Compensations paid in return for the provision of milk and other equivalent products are not subject to insurance contributions for compulsory pension (social, medical) insurance in accordance with paragraph. 2 pp. "and" clause 2, part 1, art. 9 of the Federal Law of July 24, 2009 N 212-FZ. Also, compensations are not subject to insurance contributions from industrial injuries according to paragraph. 11 pp. 2 p. 1 art. 20.2 of the Federal Law of July 24, 1998 N 125-FZ.
Let us add that exemption from salary taxes is possible only if the harmful nature of the employee’s working conditions is confirmed by the results of a special assessment of working conditions (or certification, if its results are still valid at the relevant time). Expenses for payment of compensation can be taken into account when calculating income tax as part of labor costs (clause 4 of Article 255 of the Tax Code of the Russian Federation). The relevant question is: is it possible to take into account the amount of compensation when calculating income tax in cases where harmful working conditions are not confirmed by the results of a special assessment? By this issue There are two points of view.
There is a high probability that in the event of an audit, specialists from regulatory agencies will insist that without conducting a special assessment (or certification of workplaces, the results of which will still be valid at the time of the audit), recognition of the above costs as expenses for the purpose of calculating income tax is impossible.
However, in our opinion, the legal position suggesting the possibility of taking these costs into account is quite justified.
In order for labor costs to be included in the calculation of income tax, they must simultaneously satisfy the following conditions:
- be provided for by the norms of Russian legislation;
- meet the criteria provided for in paragraph 1 of Art. 252 Tax Code RF (costs must be economically justified, documented, and aimed at generating income).
The list of labor costs that can be taken into account when taxing profits is not closed (clause 25 of Article 255 of the Tax Code of the Russian Federation). That is, they can also include other expenses not directly specified in Art. 255 of the Tax Code of the Russian Federation, but provided for by the norms of the labor (collective) agreement. Therefore, since, as we indicated above, the condition for payment of compensation in exchange for milk is prescribed in an employment or collective agreement, there is reason to believe that its amount can in any case be taken into account when calculating income tax. In fact, this legal position is confirmed in the Letter of the Ministry of Finance of Russia dated March 31, 2014 N 03-03-РЗ/13985. This document states the following. Working conditions in which the levels of exposure to harmful production factors do not exceed established standards are not recognized as harmful, and, therefore, the organization’s expenses for providing free milk to employees of the enterprise in such conditions do not apply to compensation payments.
At the same time, the cost of milk (other equivalent food products) given free of charge to employees of the enterprise (the amount of compensation for milk) when determining the tax base for income tax can be included in labor costs as a payment in kind.

Indexing

Quite often, practitioners have questions about the indexation of compensation in exchange for the provision of milk. The legislation says the following. The employer is obliged to index compensation in proportion to the increase in prices for milk (other equivalent products) in retail trade. The basis for indexing is data from the competent authority of the region. This is stated in paragraph 5 of the Procedure approved by Order No. 45n. At the same time, unfortunately, in the norms given above normative document there is no answer to questions that may arise when making an indexing decision. For example, how often an organization should index compensation payments, and from which departments to take information when calculating indexation.
When enforcing law, business entities should take into account the following:
- the employer has the right to independently determine unresolved issues (for example, the frequency of indexation);
- it makes sense to study regional legislation in order to identify sources of information on product prices (in terms of determining the competent authority of the region).
For example, if the employing organization, which provides compensation to employees in exchange for milk, is located in the Yamalo-Nenets Autonomous Okrug (Yamalo-Nenets Autonomous Okrug), this procedure can be applied.

In the Yamal-Nenets Autonomous Okrug there is an information and analytical system for monitoring and analyzing the socio-economic development of the Yamalo-Nenets region Autonomous Okrug(IAS Monitoring Yamal, http://monitoring.yanao.ru/). It was put into operation on August 1, 2012 on the basis of Decree of the Government of the Yamal-Nenets Autonomous Okrug dated July 23, 2012 N 600-P. It presents data on prices for pasteurized or sterilized milk with 2.5 - 3.2% fat content.
Accordingly, the employer will have to make a choice by indicating in the collective agreement (employment contracts with employees) the prices for which milk will be used when determining the amount of compensation.
At the same time, IAS Monitoring Yamal provides data on weekly price changes. However, the legislation does not require employers in the region to carry out mandatory weekly indexation. The indexation period can be any, for example annual.
If in the relevant region electronic system there is no such thing as the above; the employer can use other sources of official data on the level of inflation consumer prices for milk. For example, to obtain information about the level of price increases, you can contact the territorial office of Rosstat.

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