Working with freelancers under a contract “by all the rules”, or what the company faces is the clearance of relations with freelancers
Greetings to all readers of our blog! In our first article we will talk about the specifics of formalizing relationships with freelance freelance contractors in the Russian Federation.
As practice shows, most Russian companies, and in particular IT companies, publishing houses, translation, advertising and PR agencies, attract freelancers to perform work and provide services for their own needs and those of their clients on a temporary or ad hoc basis.
Freelancer and remote / homeworker: important differences
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Quite often, the legal status of a freelancer is viewed as a kind of variation in labor relations, although this classification is incorrect. Some understand the definition of "freelancer" remote (remote) and home-based workers. However, there are important differences between them:
- a freelancer can simultaneously perform work and provide services for an unlimited number of customers, while remote and home-based workers can perform the same actions only for a limited number of employers, provided that each employer expresses his consent to “parallel” employment your employee. The very possibility of obtaining such consent from employers is a relative rarity;
- remote and home-based workers always perform work and provide services on the basis of labor contracts, while freelancers perform work and provide services for client companies under contractual agreements, the design and conclusion of which we analyze in this article.
Most freelancers in Russia operate as individuals and not as individual entrepreneurs. This is primarily due to the fact that the freelancer is frightened by additional reporting obligations, paperwork, accounting and tax accounting, as well as complex administrative procedures for termination of the IP status. Well, no one has also canceled concerns about possible tax audits.
Contract with freelancer: features
As an example, we will examine a common situation - the involvement of a freelance software developer by a Russian legal entity. Suppose your company needs a freelance programmer to write the program code, and you have a programmer in mind. It would seem that the matter is small - you need to take and sign a contract for the execution of work on the creation of program code. Important note: the contract must be specifically for the performance of work, and not the provision of services, since the performance of work involves obtaining a result from a freelancer in the form of a ready-made code (as well as transferring exclusive rights to such code to you).
At this initial stage, most companies make the main mistake - it takes the standard form of a contract from some information and legal system such as “Consultant Plus”, or simply downloads from the Internet the authorship of some “legal magician” (although, of course, legally competent forms are found, but very rarely), and begins to work with the freelancer on this contract, sending him instructions and wishes, at best, by e-mail. At the same time, in the overwhelming majority of cases, companies do not take into account at least the following features of entering into a contract with a freelancer:
1. The contract, as well as all annexes to it, including the technical task, should be made in writing, signed by the head of the company and the freelancer;
2. the contract must necessarily contain an explicit indication of the fact that the freelancer is an independent contractor in relation to the customer, and their relationship under the contract cannot be qualified as employment;
3. if the contract is temporary, not one-time (project) in nature, then its term should end with the delivery of a certain result of work, and not after a certain time, and the timeframe for each intermediate stage should be no more than two months - this is necessary, to avoid possible retraining of the relationship between the customer and the freelancer in the employment relationship. It is very important that both parties understand: the freelancer has the ultimate attainable goal, the finalization of which leads to the completion of the contract, without variations on the theme “pay per day / month of work regardless of the result”;
4. The subject of the contract, again, should be the performance of a specific work, or the provision of a certain service on a reimbursable basis (for a fee), in our case - writing a program code for a computer under the appropriate working name, or a unique program code that implements certain functions;
5. The contract must necessarily include the technical task (TZ) in the application, which describes in detail what, how and in what time frame the freelancer should be done. If it is a program code, the TOR should contain, at a minimum, a programming language in which the code is written, the software environment and the operating system under which the code is written, the period of writing the code, the required functionality and other requirements, such as prohibiting the use of open source software . If you decide to sell the source code to a third party, in the absence of the TK, it will be difficult to transfer the exclusive right to the buyer.
6. procedure for acceptance and transfer of the code from the freelancer to the customer upon completion of work (on a tangible medium; by e-mail; through an FTP server, etc.) and activation of such acceptance / transfer on the basis of a written act or by means of a system for setting and acceptance of tasks (task manager, such as Redmine, Megaplan, and other similar systems, provided that the system is used by the company and the customer is given access to the freelancer to such a system);
7. detailed responsibility of the freelancer regarding possible claims and claims regarding the written code, as well as the court, which will consider possible claims against the freelancer regarding the work performed. This is a very important point - if a violation is detected, by default all claims will be sent to the ultimate copyright holder of the code, that is, the customer, and the freelancer can be brought to justice only by recourse. The choice of the court is necessary for securing the material breaches of the terms of the contract by the freelancer (non-fulfillment or improper performance of the work) and consideration of cases where it is convenient for the customer, and not at the location of the freelance defendant;
8. the exact amount of the remuneration of the freelancer and the procedure for payment of remuneration for the work performed by the freelancer, with details of the remuneration payment procedure.
When you sign a relationship with a freelancer, you should have at least three documents in writing, signed by the freelancer himself - an agreement, a statement of work and an acceptance certificate. Moreover, if there are several tasks, then you will have to enter into additional TZ and acceptance certificates with the freelancer. All this entails the need to constantly sign documents with a freelancer. If there are several freelancers, then the number of documents required for signing increases multiple to the number of freelancers. And you will also need to organize the exchange of signed documents between your company and the freelancer! You can simplify the procedures for exchanging intermediate documents by replacing paper documents with electronic ones, but this does not apply to the procedures for signing the text of the main contract. However, we will write about the legal significance of electronic messages separately.
Taxes, fees and reporting - is it all so simple?
Suppose your company did conclude a well-written contract with a freelancer, and the freelancer did the job exactly as required in the terms of reference. You received the code, checked it, were satisfied, and it was time to pay the reward. At this point, your bookkeeping is faced with the need to withhold taxes and mandatory contributions from the freelancer - almost the same as with the company's full-time employees:
1. your company should, as a tax agent of a natural person, withhold from a freelancer’s remuneration 13% of personal income tax and transfer it to the budget of the Russian Federation;
2. Your company must withhold from the remuneration the freelancer and pay for it contributions to the Pension Fund of the Russian Federation (22%), the Federal Fund for Obligatory Medical Insurance (5.1%) and the Social Insurance Fund of the Russian Federation (2.9%).
Thus, your company is obliged to withhold and transfer to the budget and funds 43% of the remuneration of the freelancer under the contract agreement. At the same time, these taxes and fees should be deducted and transferred regularly to your company's accounting department, and your accounting for all such deductions and transfers for freelancers should be kept and filed to the Federal Tax Service, the FIU, the FFOMS and the FSS separately for each freelancer. It’s good, if the freelancer who does the writing of the code is one, and you have attracted him to only one project - but if the number of freelancers attracted by the company begins to “catch up” with the number of full-time employees, and at the same time each of them regularly performs some work, Your company is waiting for a serious increase in the cost of accounting support for working with freelancers, including the preparation and filing of personalized reporting.
Here you will reasonably tell us that you yourself know about the problems with the contract agreements, which work is carried out by individuals without the status of IP, and you can’t do anything about it anyway.
And in response, in the next publication, we will tell you the story of the creation of our SOLAR STAFF service, which is designed to maximally simplify work with freelancers , automate workflow and simplify the transfer of intellectual rights, as well as reduce the tax burden and automate procedures for paying remuneration to freelancers.
As practice shows, most Russian companies, and in particular IT companies, publishing houses, translation, advertising and PR agencies, attract freelancers to perform work and provide services for their own needs and those of their clients on a temporary or ad hoc basis.
Freelancer and remote / homeworker: important differences
')
Quite often, the legal status of a freelancer is viewed as a kind of variation in labor relations, although this classification is incorrect. Some understand the definition of "freelancer" remote (remote) and home-based workers. However, there are important differences between them:
- a freelancer can simultaneously perform work and provide services for an unlimited number of customers, while remote and home-based workers can perform the same actions only for a limited number of employers, provided that each employer expresses his consent to “parallel” employment your employee. The very possibility of obtaining such consent from employers is a relative rarity;
- remote and home-based workers always perform work and provide services on the basis of labor contracts, while freelancers perform work and provide services for client companies under contractual agreements, the design and conclusion of which we analyze in this article.
Most freelancers in Russia operate as individuals and not as individual entrepreneurs. This is primarily due to the fact that the freelancer is frightened by additional reporting obligations, paperwork, accounting and tax accounting, as well as complex administrative procedures for termination of the IP status. Well, no one has also canceled concerns about possible tax audits.
Contract with freelancer: features
As an example, we will examine a common situation - the involvement of a freelance software developer by a Russian legal entity. Suppose your company needs a freelance programmer to write the program code, and you have a programmer in mind. It would seem that the matter is small - you need to take and sign a contract for the execution of work on the creation of program code. Important note: the contract must be specifically for the performance of work, and not the provision of services, since the performance of work involves obtaining a result from a freelancer in the form of a ready-made code (as well as transferring exclusive rights to such code to you).
At this initial stage, most companies make the main mistake - it takes the standard form of a contract from some information and legal system such as “Consultant Plus”, or simply downloads from the Internet the authorship of some “legal magician” (although, of course, legally competent forms are found, but very rarely), and begins to work with the freelancer on this contract, sending him instructions and wishes, at best, by e-mail. At the same time, in the overwhelming majority of cases, companies do not take into account at least the following features of entering into a contract with a freelancer:
1. The contract, as well as all annexes to it, including the technical task, should be made in writing, signed by the head of the company and the freelancer;
2. the contract must necessarily contain an explicit indication of the fact that the freelancer is an independent contractor in relation to the customer, and their relationship under the contract cannot be qualified as employment;
3. if the contract is temporary, not one-time (project) in nature, then its term should end with the delivery of a certain result of work, and not after a certain time, and the timeframe for each intermediate stage should be no more than two months - this is necessary, to avoid possible retraining of the relationship between the customer and the freelancer in the employment relationship. It is very important that both parties understand: the freelancer has the ultimate attainable goal, the finalization of which leads to the completion of the contract, without variations on the theme “pay per day / month of work regardless of the result”;
4. The subject of the contract, again, should be the performance of a specific work, or the provision of a certain service on a reimbursable basis (for a fee), in our case - writing a program code for a computer under the appropriate working name, or a unique program code that implements certain functions;
5. The contract must necessarily include the technical task (TZ) in the application, which describes in detail what, how and in what time frame the freelancer should be done. If it is a program code, the TOR should contain, at a minimum, a programming language in which the code is written, the software environment and the operating system under which the code is written, the period of writing the code, the required functionality and other requirements, such as prohibiting the use of open source software . If you decide to sell the source code to a third party, in the absence of the TK, it will be difficult to transfer the exclusive right to the buyer.
6. procedure for acceptance and transfer of the code from the freelancer to the customer upon completion of work (on a tangible medium; by e-mail; through an FTP server, etc.) and activation of such acceptance / transfer on the basis of a written act or by means of a system for setting and acceptance of tasks (task manager, such as Redmine, Megaplan, and other similar systems, provided that the system is used by the company and the customer is given access to the freelancer to such a system);
7. detailed responsibility of the freelancer regarding possible claims and claims regarding the written code, as well as the court, which will consider possible claims against the freelancer regarding the work performed. This is a very important point - if a violation is detected, by default all claims will be sent to the ultimate copyright holder of the code, that is, the customer, and the freelancer can be brought to justice only by recourse. The choice of the court is necessary for securing the material breaches of the terms of the contract by the freelancer (non-fulfillment or improper performance of the work) and consideration of cases where it is convenient for the customer, and not at the location of the freelance defendant;
8. the exact amount of the remuneration of the freelancer and the procedure for payment of remuneration for the work performed by the freelancer, with details of the remuneration payment procedure.
When you sign a relationship with a freelancer, you should have at least three documents in writing, signed by the freelancer himself - an agreement, a statement of work and an acceptance certificate. Moreover, if there are several tasks, then you will have to enter into additional TZ and acceptance certificates with the freelancer. All this entails the need to constantly sign documents with a freelancer. If there are several freelancers, then the number of documents required for signing increases multiple to the number of freelancers. And you will also need to organize the exchange of signed documents between your company and the freelancer! You can simplify the procedures for exchanging intermediate documents by replacing paper documents with electronic ones, but this does not apply to the procedures for signing the text of the main contract. However, we will write about the legal significance of electronic messages separately.
Taxes, fees and reporting - is it all so simple?
Suppose your company did conclude a well-written contract with a freelancer, and the freelancer did the job exactly as required in the terms of reference. You received the code, checked it, were satisfied, and it was time to pay the reward. At this point, your bookkeeping is faced with the need to withhold taxes and mandatory contributions from the freelancer - almost the same as with the company's full-time employees:
1. your company should, as a tax agent of a natural person, withhold from a freelancer’s remuneration 13% of personal income tax and transfer it to the budget of the Russian Federation;
2. Your company must withhold from the remuneration the freelancer and pay for it contributions to the Pension Fund of the Russian Federation (22%), the Federal Fund for Obligatory Medical Insurance (5.1%) and the Social Insurance Fund of the Russian Federation (2.9%).
Thus, your company is obliged to withhold and transfer to the budget and funds 43% of the remuneration of the freelancer under the contract agreement. At the same time, these taxes and fees should be deducted and transferred regularly to your company's accounting department, and your accounting for all such deductions and transfers for freelancers should be kept and filed to the Federal Tax Service, the FIU, the FFOMS and the FSS separately for each freelancer. It’s good, if the freelancer who does the writing of the code is one, and you have attracted him to only one project - but if the number of freelancers attracted by the company begins to “catch up” with the number of full-time employees, and at the same time each of them regularly performs some work, Your company is waiting for a serious increase in the cost of accounting support for working with freelancers, including the preparation and filing of personalized reporting.
Here you will reasonably tell us that you yourself know about the problems with the contract agreements, which work is carried out by individuals without the status of IP, and you can’t do anything about it anyway.
And in response, in the next publication, we will tell you the story of the creation of our SOLAR STAFF service, which is designed to maximally simplify work with freelancers , automate workflow and simplify the transfer of intellectual rights, as well as reduce the tax burden and automate procedures for paying remuneration to freelancers.
Source: https://habr.com/ru/post/293076/
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