SZV-M for director of the sole founder without salary in 2021: do I need to take it?

What is SZV-M

This is reporting for the Pension Fund, which policyholders have submitted monthly for two years in a row. The form came into force in April 2016 - it was introduced by the board of the Pension Fund of the Russian Federation by resolution No. 83p dated 01.02.2016. The report is called “Information about the insured persons”. However, this phrase does not decipher the abbreviation. What do the letters SZV-M mean? SZV - “incoming information about the insured”, since the information is transferred to the Pension Fund of the Russian Federation, and not vice versa. The letter M means that the report is submitted every month.

The purpose of the report is to inform the Pension Fund about which insured citizens are currently working and how many of them are pensioners. After all, working people of retirement age are not entitled to pension indexation. This is what officials should be monitoring. So why then do you need SZV-M for the founder in 2020?

Do not reflect

As for the founder without a salary in SZV-M, such persons do not need to be indicated in this reporting. They are not employees of the company. This is logical, because SZV-M reflects information on individuals performing work under employment contracts and state employment contracts and insured under pension insurance.

That is, if none of the company’s participants are assigned responsibilities for its management, and civil and other contracts have not been concluded with them, then these are not insured persons, and there is no need to include information about the founder without a salary in SZV-M in 2019 (Clause 2.2 of Article 11 of the Federal Law of 04/01/1996 No. 27-FZ, Clause 1 of Article 7 of the Federal Law of December 15, 2001 No. 167-FZ).

The issue of indicating in the SZV-M information about the sole founder, who is a director, is resolved completely differently. It must be recorded in SZV-M even if they do not receive remuneration under the contract. Moreover, even if there is no agreement, the director must be shown in SZV-M.

Deadlines for SZV-M 2021: table

The reporting form must be submitted to the territorial office of the Pension Fund on a monthly basis. All due dates in 2021 are shown in the table:

Form SZV-M with a single director and he is also the founder (2020) is submitted according to the same deadlines; no special conditions are provided for this case.

Do you need to generate a report for the director in 2021?

For the relationship between an employee and an employer to be recognized as an employment relationship, the existence of an employment contract is not a prerequisite - it is enough that the employee was actually allowed to work by the employer. This is the position of the Ministry of Labor (Letter dated March 16, 2018 No. 17-4/10/B-1846). Accordingly, the head of the organization (director), with whom an employment contract has not been concluded due to the fact that he is also the founder, is also an insured person, as is the employee with whom the employment contract has been concluded. Therefore, information on the SZV-M form is submitted for such a manager in 2021.

Who submits the SZV-M form

According to the Federal Law of 04/01/1996 N 27, all insurers without exception (legal entities and individual entrepreneurs, as well as individuals hiring workers) transfer to the Pension Fund information about all insured citizens who are on the staff.

The insured are those citizens for whom the fund receives contributions. SZV-M is submitted by employers for whom employees worked under employment and civil law contracts in the reporting month. Moreover, the report is submitted even if the person worked not a full month, but only a few days.

But is reporting submitted for the director if no one else is on the company’s staff? The Ministry of Finance and the Pension Fund answer: yes. In this case, the form is also handed in. Even if the director, who is also the founder, works without an employment contract (ET). After all, even in this case, the answer to the question “is the only director an insured person in 2020?” is positive. This is what the Pension Fund reminded all policyholders of.

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Information about insured persons (form SZV-M) is submitted monthly by all policyholders to their Pension Fund branch. The form includes employees with whom labor and civil law contracts were entered into, concluded or terminated in the reporting month, for payments for which insurance “pension” contributions should be calculated. Is it necessary to submit SZV-M to the sole founder of a company, including one that has no employees at all and does not carry out any activities? Let's look into this issue.

Opinion of the Ministry of Finance on the formalization of labor relations with the director - sole founder

Officials of the Ministry of Finance, in a letter dated March 15, 2016 N 03-11-11/14234, stated that the work of a general director without an employment contract does not indicate the absence of an employment relationship. Even if the director himself founded the company and manages it individually, he is still an employee, it’s just that the relationship is not secured by an agreement, but by the decision of the sole founder - the director himself. This position is confirmed by the letter of Rostrud dated 03/06/2013 N 177-6-1. There is also a court decision recognizing the sole founder - director as an insured person (Determination of the Supreme Arbitration Court of the Russian Federation dated 06/05/2009 N VAS-6362/09 in case N A51-6093/2008,20-161). In this case, the court ordered the FSS to pay the allowance due to the director, although the TD was not issued with him. As an insured person, the director must submit SZV-M reports for himself to the Pension Fund of the Russian Federation, even when working without a TD.

The court's decision

SZV-M in relation to the founding director

However, the court decided that the fine for failure to provide information on the founding director was lawful. The judges recalled that policyholders are required to submit monthly information to the territorial divisions of the Pension Fund of the Russian Federation for each insured person with whom an employment or civil law relationship has been established (Part 2.2 of Article 11 of Federal Law No. 27-FZ dated April 1, 1996). The director of the organization is the insured person. This follows from the provisions of Article 1 of Law No. 27-FZ and paragraph 1 of Article 7 of Federal Law dated December 15, 2001 No. 167-FZ.

The article of the Labor Code states that labor relations between an employee and an employer arise, in particular: on the basis of an employment contract, as a result of election to a position or confirmation in a position, as well as on the basis of the actual admission of a person to work with the knowledge or on behalf of the employer.

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The head of the organization is an employee who performs a special labor function in accordance with the employment contract concluded with him. By virtue of Part 1 of Article 273 of the Labor Code of the Russian Federation, this function consists of exercising management of the organization, including performing the functions of its sole executive body (clause 2 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated 02.06.15 No. 21).

Thus, an employment relationship arises between the insurer organization and its manager. In this regard, the director of the LLC is an insured person and in relation to him the information necessary for accounting should be provided. At the same time, the absence of payments and other remuneration in favor of the manager is not a reason for failure to provide data.

In the situation under consideration, one of the founders serves as a director, therefore, it is necessary to report in relation to him in the SZV-M form.

Fill out, check and submit the SZV-M via the Internet

SZV-M in relation to a founder who is not a manager

As for the “simple” participant in the company, there is no need to fill out the SZV-M for him. The rationale is this. Unlike the head of the organization, the founder is not a person with whom, due to the requirements of current legislation, an employment contract is required. A founder who is not the head of an LLC may be a member of the collegial executive body of the company (Article 41 of Federal Law No. 14-FZ dated 02/08/98).

A member of the collegial executive body of an organization who has entered into an employment contract with it may be subject to the specifics of labor regulation established by Chapter 43 of the Labor Code of the Russian Federation for a manager, if this is provided for by federal laws and constituent documents.

In the case under consideration, there is no evidence of the creation of a collegial executive body, as well as the constituent documents of the company. Thus, no employment relationship arises between the policyholder and the founder. And if so, then the “simple” founder is not an insured person and there is no requirement to provide personal accounting information in relation to him.

Opinion of the Pension Fund on filing SZV-M for the sole founder

The Pension Fund of the Russian Federation, in letter dated May 6, 2021 N 08-22/6356, expressed the position that the head of the SZV-M - the sole founder - is obliged to submit the report for himself, even if he does not receive a salary. According to representatives of the Fund, if wages and benefits were not paid in the reporting month, reporting in the SZV-M form is still submitted. The Pension Fund of the Russian Federation refers to the law of December 15, 2001 N 167-FZ “On compulsory pension insurance in the Russian Federation.” The regulation states that the insured persons are:

• Russian citizens;
• foreign citizens or stateless persons (residing in the Russian Federation),

if they work under an employment contract, including heads of organizations - the only participants and owners of the organizations' property.

According to Part 1 of Art. 7 Federal Law dated July 24, 2009 N 212-FZ, insurance premiums are paid from amounts transferred to citizens within the framework of labor relations. And we have already found out that the director - the only founder - is an employee without an employment contract, that is, he is in an employment relationship.

Following the conclusions of the officials, the director will have to submit a report to:

• even if an employment contract was not concluded with him;
• even if no payments were made to the general director in the reporting month.

True, then the Pension Fund of the Russian Federation changed its position, and for a whole year employers could not include the only founders in their reporting. But as of the March 2021 report, they are obliged to do this again, since the FIU has returned to its original point of view. This was stated in his information message.

Is it necessary to submit SZV-M for the founders: requirements of the Pension Fund of Russia

The position of the Pension Fund on this issue has changed several times from the very beginning, as soon as the new reporting came into force. Thus, in May 2016, the Pension Fund of the Russian Federation explained that the only participant-manager belongs to working persons who have pension rights, which means that information about them must be submitted to SZV-M (PFR letter dated May 6, 2016 No. 08-22/6356 ).

A little later, in July of the same year, a new clarification was received from the Pension Fund: SZV-M for the director, the only founder, who acts without concluding an agreement (labor or civil employment contract) and does not receive any payments from the organization, is still not required to be submitted (PFR letter dated July 13, 2016 No. LCH-08-26/9856).

And so, in 2021, the Pension Fund has decided: information on the founder-manager must be submitted in any case. The basis for this conclusion was the above-mentioned letter from the Ministry of Labor No. 17-4/10/B-1846, which the Pension Fund accompanied by its letter dated March 29, 2018 No. LCH-08-24/5721.

When to take SZV-STAZH

The deadline for submitting a report in the SZV-STAZH form to the Pension Fund of Russia is no later than March 1 of the year following the reporting year.

Here are the situations when a company must prepare the SZV-STAZH form without waiting for the end of the year:

• assignment of a pension to an employee - a report must be made within three calendar days from the date the employee contacts the policyholder;
• dismissal of an employee - within three days from the date of dismissal, also given to the employee on the day of dismissal;
• at the employee’s request – given to the employee within 5 working days;
• liquidation of an organization - no later than one month from the date of approval of the interim liquidation balance sheet, no later than the day of submission of liquidation documents to the Federal Tax Service, for the period from January 1 of the current year to the date of liquidation;
• reorganization of an organization - no later than one month from the date of approval of the transfer act (separation balance sheet), no later than the day of submission of documents on reorganization to the Federal Tax Service, for the period from January 1 of the current year to the date of reorganization;
• bankruptcy of the insured - before the bankruptcy trustee's report on the results of the bankruptcy proceedings is submitted to the arbitration court.

Read in the berator “Practical Encyclopedia of an Accountant”

Who should I take SZV-STAZH for?

Is it necessary to include the founding director in SZV-STAZH: a controversial issue

If an organization has entered into an employment contract with its director and if he receives remuneration under this agreement, then the director clearly needs to be reflected in section 3 of the SZV-M report. Just like any other employees.

However, a different situation is quite common: the director, the sole founder, has not entered into an employment contract with the company and does not receive any payments from the company. In this case, a lot of controversy among lawyers and accountants is caused by the peculiarity of the legal status of the head of the organization. The fact is that the director is subject to the norms of labor law, as an employee who has entered into labor relations with an employer - a legal entity on the basis of an employment contract, as well as the norms of civil legislation and laws on legal entities, as an executive body of a legal entity (h 1 article 273, article 274 of the Labor Code of the Russian Federation, paragraph 4 of article 53 of the Civil Code of the Russian Federation). In this regard, there is an opinion that the general director, even without an employment contract, is in an employment relationship with the company. And if so, then its director, the only founder, must be included in the SZV-STAZH report. After all, it is precisely the existence of an employment relationship that is stated in paragraph 1.5 of the Procedure for filling out the SZV-STAZH, approved. By Resolution of the Board of the Pension Fund of January 11, 2017 No. 3p.

At the same time, we repeat that the SZV-STAZH report is submitted, first of all, to post information about periods of work on the individual personal accounts of insured persons. Based on this data, insurance pensions are assigned. If so, then it is worth paying attention to the fact that the insurance period required to assign a pension includes periods of work and (or) other activities that were carried out on the territory of the Russian Federation, provided that during these periods insurance contributions to the Pension Fund were accrued and paid (Clause 1 of Article 11 of the Federal Law of December 28, 2013 No. 400-FZ “On Insurance Pensions”). If there are no payments in favor of the general director, the sole founder, then pension insurance contributions are not accrued or paid (since there is nothing to accrue them for). This means that these periods are not included in his insurance period. Why then submit a SZV-STAZH report on him? Why include in this report a person whose information will not affect his pension in any way and will not increase his length of service? There are no answers to these questions in the legislation. Therefore, we believe that it is not necessary to submit the SZV-STAZH annual report for the founding manager with whom an employment contract has not been concluded and who does not receive payments!

It’s another matter if there is an employment contract with the director, but no payments are made under it. Then the director must be included in the SZV-STAZH, since there is a fact of labor relations. And even if the director is on leave for a long time, for example, without pay, then it also needs to be shown in the report, and the vacation period must be accompanied by a special code in column 11 - NEOPL (2.2.25 of the Procedure for filling out SZV-STAZH, approved by the Resolution of the Board of the Pension Fund of the Russian Federation dated January 11, 2017 No. 3p.