In what currency to establish a salary for a foreigner. In what cases is salary paid in foreign currency
From 16.02.2018, amendments entered into force, which allow, in some cases, to pay employees wages in foreign currency... The innovations provide for the possibility of certain categories of people living and working outside Russian Federation citizens of the Russian Federation (according to the norms of currency legislation - natural persons-residents) their allowance, monetary allowance, wages and other payments directly in foreign currency.
Payment of salaries in foreign currency under the new rules is possible for individuals- residents who perform labor duties assigned to them by resident legal entities and stipulated in employment contracts outside the Russian Federation. These persons include, first of all:
- employees of diplomatic missions and consular offices of the Russian Federation;
- employees of representations of the Russian Federation to international organizations (in foreign countries), as well as representations of the Russian Federation and federal executive bodies abroad;
- representatives (permanent representatives) of the Russian Federation or representatives (deputy representatives) of federal executive bodies at international organizations;
- representatives of federal executive authorities and their deputies abroad;
- employees located outside the territory of the Russian Federation government agencies;
- persons sent by federal executive bodies outside the territory of the Russian Federation to provide technical assistance and perform other duties (for example, military personnel);
- other citizens who work outside the country (for example, own correspondents, representatives of commercial organizations).
Payment of salaries in foreign currency must be carried out within the framework of concluded contracts (service contracts, additional agreements to them) or labor contracts. At the same time, it will be possible to transfer money to accounts opened in authorized banks on the territory of the Russian Federation.
What employers should prepare for
For those who carry out their labor activity on the territory of the Russian Federation, nothing will change. Obviously, the amendments apply to a rather narrow circle of employers: those who have employees abroad. For them, the payment of wages in foreign currency is very beneficial, since a business that actually has foreign currency earnings will be able to avoid losses from double conversion. It arises when a company that has foreign exchange earnings and pays wages in rubles, first converts the currency in its accounts and transfers rubles as salaries to employees, and then rubles are again converted into currency so that these funds can be used by employees located in another state. , explains Natalia Yasheva, manager of the branch of FORA-BANK in St. Petersburg... The expert is sure that such loyalty on the part of the state is one of the steps towards globalization, which allows expanding the capabilities of companies and reducing a number of their costs associated, among other things, with volatility in the currency market.
Those who want to pay salaries in foreign currency will have to open a foreign currency account (if it does not already exist), and in the future, report on it in the same way as now, Ms. Yasheva suggests. In her opinion, employers will not have any new responsibilities. The entire burden of reporting will fall on the authorized banks. Corresponding changes and explanations will have to be given central bank.
Deputy general director of the company "Cadiz Plus" Elena Nozdryukhina, in turn, notes that if the employer intends to use the new right and will pay salaries in foreign currency, he must remember about the correct design of relations with the employee. In particular, the conditions of remuneration are mandatory, that is, the size or salary, additional payments, allowances and incentive payments are indicated. Changing the terms of remuneration, you need to draw up with the employee. Since the legislator intends to amend the article on the forms of payment, it can be assumed that the system of remuneration for such workers will change. This means that you cannot do without an additional agreement to the employment contract.
Is abuse possible
Indulgences when carrying out currency transactions of course, unscrupulous entrepreneurs can take advantage. This can be expressed, for example, in attempts to illegally withdraw funds abroad. But the scale of these scams is unlikely to be large and, most likely, will remain just attempts, since the Central Bank will authorize currency control agents (i.e. banks) to carefully monitor this type of transactions, include them in certain reporting forms in order to form the balance of payments and control behind the outflow Money abroad, Natalia Yasheva is sure.
In addition, the benefits of expanding the list of permitted currency transactions are much greater, the expert says. Therefore, the Ministry of Finance was not afraid to come up with such an initiative.
Since perestroika times, the words "currency", "bucks", "green" have firmly entered our spoken language. Thanks to the dominance of Hollywood films on Russian screens, it sometimes began to seem that the same overseas dollar was the same everyday means of calculating as the usual ruble. But to be honest, in the post-perestroika years, they really often used foreign currency for cash payments: it was paid for purchases, sometimes it was given a salary (on a par with).
Today the situation has radically changed, and it is no longer possible to freely use foreign banknotes inside the country. Even if you really want to receive, for example, a salary in dollars or euros, this is possible only in a very limited number of cases. We will now consider them in more detail.
So, who can be paid for work in an employment relationship in foreign currency?
Regulatory regulation
First, let's turn to the legal regulations. In order not to make a mistake and not "run into" legal troubles by paying someone in foreign currency, you need to study:
- Labor Code, namely Article 131. Until recently, its wording allowed settlements with employees exclusively in rubles. Since 2018, the legislator has made a slight relaxation: sometimes it is still possible to pay salaries in foreign currency, but in a list of cases limited by law.
- This very list is given in the text Federal law"On currency regulation and currency control". This is the main normative document on this issue.
- You have decided whether it is possible to pay your employee with foreign banknotes? Take your time to relax and look more in tax code... After all, wages in the Russian Federation are subject to income tax, and its rate depends on who receives it: a tax resident or non-resident.
When is such a payment possible?
The already mentioned Federal Law "On Currency Regulation" answers this question. But first, it is worth understanding its basic concepts in relation to it. The law distinguishes between two categories: residents and non-residents. Everything is simple here. The first are:
- all citizens of the Russian Federation;
- foreigners living in Russia with a residence permit.
Non-residents in the understanding of this law are all the rest: foreign companies, their, diplomatic and consular offices.
When calculating the salary of your employee who is abroad, in foreign currency, it is advisable to look at the Decree of the Ministry of Labor of the Russian Federation of 08.20.1992 No. 12, which regulates the procedure for such calculations. The salary can be credited through the employee's current foreign currency account and even in cash through the cashier.
As practice shows, regulatory authorities may have complaints about cash payments. However, the practice of the higher courts suggests the opposite (for example, Resolution of the Supreme Arbitration Court of November 24, 2014 No. 310-AD14-928).
Taxation
Wages are among those incomes of individuals that are subject to income tax (). If you pay your salary in foreign currency, be prepared for some peculiarities in the area of taxation.
We have already talked a lot about residents and non-residents in the understanding of the Federal Law "On Currency Control ..". Tax legislation operates with the concepts of tax resident and non-resident.
Why is it important? The point is that the rate income tax depends on who the payer is. If you do not take this point into account, then you risk making a mistake in calculating the amount of tax and, as a result, getting into trouble from the fiscal authorities.
- So, who are the tax residents: all "physicists" who have been in Russia for at least 183 days for 12 months in a row. If during this time you left the country for a short time (up to six months) in order to receive medical treatment or to study, these periods are not taken into account.
- In addition, all the military and officials who were sent abroad on a business trip are always residents for the tax authorities, no matter how long they were there. Accordingly, all the rest are non-residents.
- all residents; tax should be considered at the rate of 13%.
- non-residents who receive a salary for work in the Russian Federation. Their rate is 30%. However, for some foreigners there are exceptions: for highly qualified specialists, for working under a patent, for refugees and some others.
If the employee's rights are violated
When it comes to wages, it is difficult not to touch upon the issue of violations of workers' rights. It often happens that, not fully paid, finally paid,.
These employers very often forget how harsh Russian laws are towards such violators. And many workers do not even know what exactly needs to be done in such cases.
Therefore, we have prepared a short memo on this topic:
- If your salary is delayed by more than 15 days, you. Suspend work, but before that, be sure to notify your superiors in writing. During the period of such suspension, you will be retained. They have no right to fire you for such behavior, just document the situation correctly. You will have to prove the fact of delayed wages in court (if it comes to it).
- You should know that for delayed wages, your company must pay in rubles in the form of penalty interest (see article 236 of the Labor Code). The calculation of these percentages is simple: the amount of debt is multiplied by 1/150 of the key bank rate(since March 26, 2018 it has been set at 7.25%) and for the number of days of delay. You also have.
Let's give an example: your employer owes you 10,000 rubles, you have been waiting for payment for 20 days (from the date of the salary in your organization). The amount of penalty interest will be: 10000 * 7.25% / 150 * 20 = 96.67
As you can see, the amount of penalty interest is small, but by agreement with the employer, you can increase it by securing it in the employment contract or in the local acts of the company or.
Please note that the law does not associate the obligation to pay such interest with the presence of the guilt of the management. In other words, even if you were not paid on time for objective reasons (there was no money, difficult financial situation), this does not negate the consequences for the employer in the form of payment of interest.
But you can't get off with fines alone in case of non-payment of wages. For such violators, the law provides for the onset of administrative responsibility under Art. 5.27 clause 6 of the Administrative Code in the form of:
- warnings;
- a fine (up to 20 thousand rubles for officials);
- disqualifications (if your employer has committed similar violations in the past). To bring your superiors to justice, you should apply to the prosecutor's office or labor inspectorate, setting out the whole essence of the problem.
Finally, especially "distinguished" wage debtors run the risk of being prosecuted (Article 145.1 of the Criminal Code of the Russian Federation). The sanctions include fines, forced labor and even imprisonment.
There is one "but": both administrative and criminal liability of the employer is due to the presence of his guilt. Simply put, such a boss can be punished only if your payment was delayed not because of financial difficulties or lack of money, but for other reasons (greed, desire to save money, "throw", etc.).
So, despite the outright prohibition on paying workers for labor in foreign currency, there are still exceptions. If you belong to the "chosen one", clarify all the details in order to avoid negative consequences.
The issuance of per diems in foreign currency is described in the video below:
The legislation does not prohibit employers from setting wages in foreign currency, however, it is possible to pay wages in foreign currency only in strictly limited cases. In this article, we will consider when it is possible to pay salaries in foreign currency.
Who can receive a salary in foreign currency
The employer, in accordance with labor legislation (131 of the Labor Code of the Russian Federation), has the right to set wages in Russian rubles, or in any foreign currency. But he is entitled to pay salaries in foreign currency only in those cases that are provided for by law 173-FZ of 10.12.2003. According to the law, persons who are entitled to receive salaries in foreign currency include:
- employees Russian organizations having non-resident status;
- Russian employees working under an employment contract outside the Russian Federation, including representative offices and branches of Russian organizations, diplomatic missions, and consular offices.
Labor contract
Thus, the employer's right is the ability to establish wages in foreign currency, but only subject to the conditions that exclude a decrease in wages when the exchange rate changes. In this case, the employer has the right to do the following:
- Establish in the employment contract a fixed exchange rate, or an average rate at which wages will be paid. In the course of work, the exchange rate may be revised depending on the economic situation in the country.
- An employment contract or the Regulations on Remuneration may provide for the procedure for reimbursing the difference that arises in the amount of wages, depending on fluctuations in the exchange rate.
- Constantly keep records of fluctuations in the exchange rate of foreign currencies, compiled in the form of a table and graph. Based on the results of such accounting, it is possible to reimburse employees for the difference in the amount of wages.
Important! If the labor contract includes conditions that exclude a reduction in the size of workers' wages depending on fluctuations in the exchange rate, then the following wording can be used:
- “The employee is set a monthly salary in the amount of 1000 (one thousand) US dollars. In this case, the payment of wages to the employee is made in an equivalent amount in rubles at the rate of 60 (Sixty) rubles for 1 (One) US dollar. Due to the unstable economic situation the specified exchange rate is subject to revision and change once a quarter. These changes are formalized by an additional agreement to the employment contract. "
- “The employee is set a monthly salary in the amount of 2000 (two thousand) US dollars. In this case, the employee's salary is paid in an equivalent amount in rubles in accordance with the official exchange rate set by the Central Bank of the Russian Federation on the date of salary payment. Within two weeks after the end of the next quarter, the Employer compares the total wage of the Employee for such a quarter with overall size the salary received by the Employee for the previous quarter. The Employer pays the resulting difference in the indicated amounts to the Employee on the day of the next salary payment. ”.
Wages include all payments received by an employee for the work they perform (including salaries, allowances, bonuses, etc.) (129 of the Labor Code of the Russian Federation). The employer is obliged to transfer wages to the employee at least twice a month. Wherein payment of wages should be made only in rubles, but this does not apply to the purpose of remuneration. Thus, it is impossible to pay salaries in foreign currency, but it is possible to appoint.
Payment of salaries in foreign currency
Until recently, those employees who worked in Russian companies, but abroad, could receive their salaries only to an account opened in Russian bank. However, on February 15, 2020, a law came into force, which amended Art. 131 of the Labor Code of the Russian Federation. Now Russian companies have the right to transfer salaries to their employees who work abroad in foreign currency. Thus, employees of Russian companies abroad have the right to receive their salaries in the currency of the country of residence, for example, in dollars or in euros.
02/26/2015 - Salary in USD at the rate of the Central Bank ?!
///// The surges of the dollar and the euro, inflation and talk about a possible default - all this causes distrust of citizens towards the ruble, which makes them start seriously thinking about wages in foreign currency.
///// Numerous polls so far indicate that there are already about 40% of such applicants, but nevertheless, almost 50% of the population want to continue to receive income in rubles, believing that it is necessary to receive income in the currency in which a person spends.
///// In the practice of many employers, questions often arise related in one way or another to the inclusion in the employment contract of conditions for remuneration of the employee in foreign currency.
///// Two main practical questions have been formed on this issue.
///// Question one:
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Is it legal to establish in an employment contract the amount of wages to an employee in the Russian Federation in foreign currency, as well as to pay wages in foreign currency?
///// By virtue of Art. 1 of the Federal Law of 10. 12. 2003 No. 173-FZ "On currency regulation and currency control"(Hereinafter referred to as Law No. 173-FZ), the payment of salaries in foreign currency is a foreign exchange transaction, i.e. transaction related to the transfer of ownership of currency values, to which the foreign currency belongs.
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Typical situations:
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1.
An employee who is a resident of Russia is employed by a Russian legal entity. By virtue of paragraph 1. of Art. 9 of Law No. 173-FZ, foreign exchange transactions between residents are prohibited. The exception is the operations directly listed in the specified art. 9, among which there are no transactions related to the payment of salaries.
///// Accordingly, a Russian legal entity - an employer, by virtue of currency legislation, is not entitled to pay salaries in foreign currency to an employee who is a resident of Russia.
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2.
A Russian legal entity, subject to a number of conditions, has the right to employ foreign workers. Accordingly, an employee of a Russian legal entity may be a non-resident of Russia for the purposes of currency regulation. The payment of salaries to a non-resident employee is also a currency transaction, but due to the fact that its parties are a resident and a non-resident, different rules apply to it.
///// Art. 6. Law No. 173-FZ provides that foreign exchange transactions between residents and non-residents are carried out without restrictions, except for cases expressly provided for in the law itself. Among the regulated transactions stipulated by Law No. 173-FZ (that is, transactions in respect of which the possibility of establishing restrictions is provided), there is no transaction for the payment of salaries to a non-resident employee in foreign currency.
///// From which it follows that the currency legislation does not contain a prohibition or restriction on the payment of wages in foreign currency by a Russian legal entity - an employer in favor of an employee of a non-resident of Russia.
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3.
A foreign legal entity that has a branch (representative office) in the Russian Federation hires employees who are residents of Russia to work in such a branch (representative office).
///// From the point of view of currency legislation, the situation is identical to the second typical situation discussed above: currency transactions between residents (employees) and non-residents (employers) are carried out without restrictions, therefore, currency legislation allows payments in favor of employees in foreign currency.
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4.
A foreign legal entity that has a branch (representative office) in the Russian Federation hires employees who are non-residents of Russia to work in such a branch (representative office).
///// There are no restrictions on settlements between non-residents in foreign currency, including those related to salary payments.
///// As you can see, in three of the four typical situations presented, Currency legislation allows the possibility of payment of salaries in the Russian Federation by an employer to an employee in foreign currency.
///// Naturally, norms currency legislation can only be applied to settlements in foreign currency. But, these norms do not regulate and cannot regulate the issues of the legality of establishing the very condition of settlements in foreign currency in the employment contracts of employees.
///// It is necessary to refer to the norms labor legislation.
///// By virtue of Art. eleven Labor Code of the Russian Federation(hereinafter referred to as the Labor Code of the Russian Federation), its norms are binding on the territory of the Russian Federation for all employers, regardless of their organizational and legal forms and forms of ownership. On the territory of the Russian Federation, the rules established by the Labor Code of the Russian Federation apply to labor relations of foreign citizens, stateless persons, employees of international organizations and foreign legal entities.
///// The key rule is contained in Art. 131 of the Labor Code of the Russian Federation, which establishes that the payment of wages is made in cash in the currency of the Russian Federation ( in rubles).
///// It is important to note that the norm of this article of the Labor Code of the Russian Federation develops the provisions of the norm of Art. 3 Convention No. 95 of the International Labor Organization "Concerning the protection of wages" adopted in Geneva on 07/01/1949 stating that wages paid in cash will be paid exclusively in money in legal circulation.
///// At the same time, the norm of Part 2 of Art. 131 of the Labor Code of the Russian Federation establishes the possibility, in accordance with collective agreement or by an employment contract, upon a written application from an employee, pay remuneration in other forms that do not contradict the legislation of the Russian Federation and international treaties of the Russian Federation.
///// The conditions contained in art. 131 of the Labor Code of the Russian Federation are unambiguous: payments in foreign currency are illegal in any of the typical situations presented above, despite the absence of prohibitions from currency legislation.
///// It is obvious that Part 2 of Art. 131 of the Labor Code of the Russian Federation establishes the possibility of providing for other forms of remuneration, while the currency in which labor is paid is not an element of the form of payment, since from this article it follows that there are two main forms of remuneration - monetary and non-monetary forms.
///// However, the second question is more complicated:
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How legitimate is it to establish in an employment contract the amount of the employee's salary in foreign currency, but pay the salary in rubles, based on the official exchange rate of the corresponding currency on the date of payment?
///// There is no doubt that in practice, the rate of the corresponding currency specified in the corresponding condition of the employment contract can be as get up and decline against the Russian ruble under certain circumstances.
///// However, assigning a salary in foreign currency may result in negative consequences... In particular, this was repeatedly opposed by federal Service for labor and employment (Rostrud) indicating in his letters that it is does not comply with the law, since a change in the ruble exchange rate in relation to foreign currency may lead to a deterioration in the conditions of remuneration of the employee (letters dated 10.10.2006, No. 1688-6-1; dated July 28, 2008 No. 1729-6-0; dated 31.10.2008 No. 5919-TZ; dated 11.03.2009 No. 1145-TZ; dated 24.06.2009 No. 1810-6-1).
///// Indeed, if the salary is set in foreign currency, then if its rate falls, the employee's salary will decrease, and this, in turn, will worsen his situation, which is unacceptable in accordance with Part 4 of Art. 8 of the Labor Code of the Russian Federation.
///// Violation of the law in this case is seen in the fact that this method of calculating and paying wages contradicts the principle of payment for work, enshrined in Part 1 of Art. 132 of the Labor Code of the Russian Federation. It provides that the salary of each employee depends on his qualifications, the complexity of the work performed, the quantity and quality of labor expended and maximum size is not limited.
///// Thus, the legislator does not allow the amount of wages to depend on fluctuations exchange rates, which generally do not depend on the results, complexity and working conditions of a particular employee.
///// In addition, upon payment of the salary set in the currency in rubles at the exchange rate of the Central Bank of the Russian Federation, its size will inevitably fluctuate (both in the smaller and in the larger direction). That is, in fact, there will be a constant change in the terms of the employment contract on remuneration. But the legislator comes from another general rule: any adjustments to the terms of the employment contract should not be made automatically, but only by written agreement between the employee and the employer, which is defined in Art. 72 of the Labor Code of the Russian Federation.
///// This is another violation of the law with this method of calculating and paying employees wages.
///// Since the establishment of wages in labor contracts in foreign currency and its subsequent payment in rubles at the exchange rate of the Central Bank of the Russian Federation is recognized as an offense, a company that practices this method of calculating and paying wages to its employees really has risks associated with the threat of attracting to responsibility.
/////
In particular, in this case, we can talk about the possibility of bringing the employer and his officials to administrative responsibility for violation of labor legislation in accordance with Art. 5.27 Of the Code of Administrative Offenses of the Russian Federation(hereinafter referred to as the Code of Administrative Offenses of the Russian Federation).
///// Part 1 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation states that violation of labor legislation and labor protection (in this case, Articles 72 and 132 of the Labor Code of the Russian Federation) entails a warning or imposition administrative fine for officials in the amount of one thousand to five thousand rubles; on persons carrying out entrepreneurial activity without forming a legal entity - from one thousand to five thousand rubles; for legal entities - from thirty thousand to fifty thousand rubles.
///// A part 4 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation provides that violation of labor and labor protection legislation by an official previously subjected to administrative punishment for a similar administrative offense entails the imposition of an administrative fine on officials in the amount of ten thousand to twenty thousand rubles or disqualification for a period of one year to three years; for persons engaged in entrepreneurial activities without forming a legal entity - from ten thousand to twenty thousand rubles; for legal entities - from fifty thousand to seventy thousand rubles.
///// In addition, among the possible risks, the threat of labor disputes with employees who can ( if desired) in court to challenge this method of calculating and paying wages, as well as to demand compensation for material damage caused by this offense on the basis of Art. 236 of the Labor Code of the Russian Federation and compensation for moral damage on the basis of Art. 237 of the Labor Code of the Russian Federation.
///// By the way, a decrease in the rate of foreign currency, compared to the rate on the date when the parties signed the employment contract, leads to the payment to the employee of smaller amounts in rubles compared to those previously paid. In such a situation, the unforeseen Art. 137 of the Labor Code of the Russian Federation withholding from wages. And by virtue of Part 3 of Art. 4 of the Labor Code of the Russian Federation, the payment of wages not in full can be considered as forced labor.
///// It should also be pointed out that Art. 134 of the Labor Code of the Russian Federation established the need to ensure an increase in the level of the real content of wages through its indexation in connection with an increase in consumer prices for goods and services. State bodies, bodies local government, state and municipal institutions make indexation of wages in the manner prescribed by labor legislation and other regulatory legal acts containing labor law norms, other employers - in the manner prescribed by the collective agreement, agreements, local regulations.
///// Thus, the purpose of this rule is precisely to revise the salary and be adequate consumer prices which tend to increase, as practice has shown last months, regardless of the exchange rates of world currencies.
///// Nevertheless, a significant part of employees still considers the establishment, in the employment contract, of a salary in foreign currency with payment at the appropriate exchange rate in rubles as a very preferable condition.
///// Review prepared by the company
p.s.
Several months have passed since this publication, but this issue has not lost its relevance ...
Rostrud, in his letter dated November 20, 2015 No. 2631-6-1, reiterated his position:
"In our opinion, the establishment of wages in labor contracts in the ruble equivalent of an amount in foreign currency or in conventional units will not fully comply with labor legislation and, under certain conditions, infringe on the rights of workers ...."
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Russian President V.V. Putin signed a law (Federal Law of 03/07/2018 No. 44-FZ "On Amendments to Articles 9 and 12 of the Federal Law" On Currency Regulation and Currency Control "), providing for the opportunity for Russian citizens who live abroad and work in domestic companies, receive salaries in foreign currency.
Operations for the payment of wages and other payments that are related to work are now included in the list of permitted foreign exchange transactions. Also, the law provides an opportunity to carry out operations for the payment of wages to employees of branches of legal entities tax residents outside of Russia. For this legal entities open accounts in foreign banks.
Previously, in accordance with the provisions of Art. 12 of the Federal Law “On Currency Regulation and Currency Control”, Russian citizens who work abroad had the right to receive wages only in rubles to accounts opened with authorized foreign banks.
In February 2018, the President signed a law amending the Labor Code of the Russian Federation to allow Russian companies to pay salaries in foreign currency to employees working abroad.
In addition, diplomatic workers and persons who have been sent to work outside Russia by federal agencies are also given the opportunity to receive wages in foreign currency to their foreign accounts. Previously, this category of persons did not have such an opportunity.