Production cooperative advantages and disadvantages table. Production cooperative - what are its advantages and disadvantages
a question on the economy - the pros and cons of production cooperatives (pc), very urgently needed .. and got the best answer
Answer from --[guru]
1) a production cooperative is a voluntary association based on membership mainly of citizens for joint production and other economic activity;
2) a member of a cooperative - a citizen, as a rule, is obliged to work in it (to participate in its activities by personal labor), to be in labor relations with the cooperative, or to provide other participation in its activities, expressed, in particular, in financing the cooperative, providing for its material resources, premises, transport. However, such members must participate in the work of the general meeting of the cooperative. Similar forms of participation may be used by a legal entity - a member of a cooperative, if its participation is provided for by law or the constituent documents of the cooperative;
3) the obligation of the members of the cooperative also consists in the formation of its property base by making property shares. In the aggregate, the share contributions constitute the share fund of the cooperative;
4) members of the cooperative bear subsidiary liability for its debts. This means that if the property of the cooperative is not enough to cover its debts, the members of the cooperative are obliged to compensate for the missing part of the debt at the expense of their personal funds (and members - legal entities - at the expense of the legal entity). The amount and procedure for the application of subsidiary liability are provided for in the laws on production cooperatives and their charters;
5) all members of the cooperative, both citizens and legal entities, have one vote when making decisions at the general meeting of members of the cooperative. This cooperatives differ significantly from business companies.
Advantages and disadvantages
The undoubted advantage of a future member of the cooperative is the almost 100% attribution of him "to his own." Unlike a bank, it does not require numerous certificates and guarantees. Passport and possibly a copy of the work book - that's the whole package of documents. This is explained very simply - an unscrupulous shareholder will be weeded out without receiving anything.
True, the amount of a bank loan may be higher than the amount of funds offered in the cooperative. As a rule, to join a cooperative, you need to own 50% of the value of the purchased housing. And the minimum installment on a mortgage, as you know, is 30%.
In addition, the future shareholder must pay an entrance fee - a fairly round amount (from 2 to 5% of the estimated cost of the apartment by the time it is handed over), which is not included in the savings amount and is not returned in case of exit from the cooperative.
Another not the most pleasant nuance - the period of accumulation of the down payment is, as a rule, at least 2 years. Even if you pay the entire amount at once, this does not mean that after that you will be able to move into the apartment.
Certain inconveniences are also introduced by the fact that, under a mortgage agreement, you initially receive an apartment as a property. And even if your financial position will change for the worse, the bank will not be interested in litigation regarding the withdrawal of the apartment. At least, there have been no such cases yet. By law, leaving you without a living space is almost impossible. As for the cooperative, here housing is owned by the cooperative until the last moment, and therefore the situation may not develop in favor of the unfortunate member.
pros:
In a production cooperative there may be members who do not take personal labor participation, they make an additional share contribution - the number of such members cannot be more than 25% of the total number of members of the cooperative (for agricultural cooperatives - at least 50% of the work must be performed by members of the cooperative).
The property of the cooperative is divided into shares, and when leaving the cooperative, a member can receive the value of the share or the corresponding property. Profit is divided in accordance with labor participation (unless otherwise provided by the charter).
minuses:
Members of a cooperative bear subsidiary liability with their property, the amount and procedure for liability must be established in the charter.
The production cooperative (hereinafter referred to as PC) is quite often mentioned as an effective model of tax optimization, especially in terms of paying insurance premiums. The production cooperative does provide a number of opportunities in this regard, but not as many as some "tax Copperfields" claim. And, as is usually the case, in order to implement these opportunities in practice, it will be necessary to pay a lot of attention to the specifics of business and the characteristics of a production cooperative as a legal structure.
In addition to the Civil Code of the Russian Federation, legal status production cooperatives regulated federal law dated 05/08/1996 No. 41-FZ "On production cooperatives".
A production cooperative (artel) is a voluntary association of citizens on the basis of membership for joint production or other economic activities (production, processing, marketing of industrial, agricultural and other products, performance of work, trade, household service, provision of other services), based on their personal labor and other participation and the association of its members (participants) of property share contributions. paragraph 1 of Art. 106.1 Civil Code RF
The bottom line is that this commercial organization, which is an association of citizens (legal entities can also be members of a production cooperative) in order to implement a joint entrepreneurial activity within any industry. The definition contains an indicative list of such activities, but it is not exhaustive. In fact, any activity can be framed in the form of a PC.
Key features of a production cooperative.
Important features of the PC, which are worth paying attention to, include:
- The presence of a legally fixed requirement for the minimum number of PC members - at least five people. The maximum number of members of the cooperative is not set;
- Cooperative members can be divided into two groups:
- taking personal labor participation in the activities of the cooperative;
- not taking personal labor participation in the activities of the cooperative. Their number should not exceed 25% of the number of cooperative members included in the first group.
- The cooperative may employ employees who are not members of the cooperative. Their number cannot exceed 30% of the PC members.
- A member of the cooperative contributes, among other things, his ability to work, so there is no need to conclude an employment contract with him. Relations with the cooperative (in particular, the procedure for joining and leaving the cooperative, the procedure for distributing profits, etc.) are regulated by law, the charter of the cooperative and the rules internal regulations cooperative, and not an employment contract (Article 19, 20 of the Federal Law "On production cooperatives").
- Members of the cooperative who have not entered into an employment contract with the cooperative, but who take part in the activities of the cooperative (after all, it was for this purpose that they united in the cooperative) are not taken into account when determining the average payroll employees of the cooperative (paragraph “h”, paragraph 80 of the Order of Rosstat dated October 26, 2015 N 498 “On approval of the Instructions for filling out forms of federal statistical observation ...”).
Accordingly, it is possible to comply with the restriction on the maximum number of employees for the application of the simplified tax system (100 people) with actual involvement in manufacturing process a much larger number of persons, since members of the cooperative are not taken into account when calculating the maximum number.
Thus, if you combine production workers into a cooperative, the number of other employees (for example, an individual accountant, cleaners) will not exceed 100 people, they will be hired employees.
The profit of the cooperative is distributed among its members in accordance with their personal and (or) other participation and the size of the share contribution.
Members of the cooperative, taking personal labor participation in the activities of the cooperative, have the right to receive payment for their work in cash and (or) in kind.
With regard to compulsory insurance, the members of the cooperative are subject to social and compulsory medical insurance and social security on an equal basis with employees of the cooperative. The time of work in a cooperative is included in the length of service, in work book a record of membership in the cooperative is made.
On the possibilities of tax savings in the PC: risks and measures to reduce them.
The profit of the cooperative is distributed among its members in accordance with their personal and (or) other participation and the size of the share contribution (clause 1, article 12 of the Federal Law "On PC" (1). At the same time, no more than 50% can be distributed in proportion to the size of the share contribution all profits of the PC (clause 2, article 12 of the Federal Law "On PC").
This is where both the potential and the danger of the effect of optimizing insurance premiums in payments to members of a production cooperative lies!
Let's take it in order. Legislated two payment options labor of members of the cooperative:
1) payment for labor in cash and (or) in kind. This is actually wages, which are subject to personal income tax and insurance premiums in the generally established manner.
Total taxation: 13% personal income tax + 20 (30)% insurance premiums.
2) part of the profit of the PC, distributed in its favor:
a) in proportion to the size of the share contribution - in this way no more than 50% of the profit can be distributed (part 2 of article 12 of the Federal Law "On PC").
This payment, by its nature, is not income from the performance of work (rendering services) and is, in its content, a dividend (clause 1, article 43 of the Tax Code of the Russian Federation). Payable out of net income and not subject to insurance premiums. The personal income tax rate in this case is 13% as for the payment of dividends.
Total: income tax from a cooperative (20% income tax or 5 (6, 10, 15)% according to the simplified tax system) + 13% NDFL.
b) in accordance with the personal labor participation of a member of the cooperative.
Payments to PC members in connection with their personal participation are also dividends in nature and should not be subject to insurance premiums. But, alas, government bodies, including, unfortunately, by the courts, these payments are considered as wages.
It all started with the Ruling of the Supreme Court of the Russian Federation dated February 10, 2015 No. in case No. A65-23251/2013.
In that case, the Production Cooperative concluded labor contracts with all its members and paid them wages. He distributed his net income as follows:
30% - in equal shares between members of the cooperative, that is, in proportion to equal share contributions;
70% - in proportion to labor participation, which was determined based on the annual salary of each member of the cooperative.
Pension Fund based on the results of the on-site inspection, he calculated the insurance premiums from the specified 70%, which became the subject of a lawsuit that reached Supreme Court. As a result, the Court ruled that the distribution of 70% of the profit in this case depends entirely on the amount of payments for the performance by employees (members of the cooperative) of their labor duties and is directly related to the remuneration system, in connection with which the payments are stimulating and are of an incentive nature, and therefore subject to insurance premiums.
Thus, only that part of the profit, which is distributed in proportion to the share contribution, is equated to dividends and is not subject to insurance premiums.
But we will not be us if we do not offer our interested readers a kind of “umbrella”, which will allow us to survive the impending bad weather, if possible, and get out as “dry” as possible in such matters.
So what to do:
1. First, use "to the fullest" provided by law the possibility of distributing profits between members of the cooperative in proportion to share contributions, that is, for all 50%. The Pension Fund does not encroach on payments distributed in this way.
2. The concept of a “labor function” performed by an employee under an employment contract is still not identical with the concept of a “labor contribution” of a member of a cooperative, no matter how much the representatives of the Pension Fund would like it to be.
Let us clarify that the “labor function” is not directly related to the profit received by the cooperative, and payments are made to the employee in this case for the very fact of its performance and are regulated by labor legislation. Whereas the "labor contribution" should directly determine the profit received by the cooperative, and is established in accordance with its Charter. The labor contribution of members of the cooperative performing identical labor functions, may be different.
If we turn to the case we have considered, then the PC made a fatal mistake by directly linking, according to the Charter, the labor contribution to the salaries of members of the cooperative under labor contracts. In this case, it turns out, for example, in order to increase the share in the profits of any member of the cooperative, it is necessary to raise his wages to the appropriate level. Consequently, all the activities of the members of the cooperative were subject to labor legislation. This predetermined to a large extent the "bad" decision of the Supreme Court.
Therefore, we learn from the mistakes of others and exclude from the Charter of the PC any possible references to the norms labor law. We even recommend explicitly reflecting in the Charter that the members of the cooperative do not receive wages for their work, but receive dividends in the monthly distribution of profits depending on their labor participation, which is determined by the Charter.
When determining the procedure for distributing profits in accordance with labor participation, do not refer to the labor process, focus on its result, that is, on the labor contribution to the profit received by the cooperative.
For example, for salespeople, you can develop a system of points that are taken into account in the distribution of profits, accrued depending on the number and amount of transactions. You can apply different multipliers to deals made with new clients, downgrades to deals that the client has abandoned, and so on.
For production employees, the points system can be based on the planned and actual volume of production for each member of the cooperative, the use of reducing coefficients in the presence of "marriage", etc.
In regulating the activities of cooperative members, avoid references to documents specific to labor relations: staffing, tariff and qualification characteristics of work, job descriptions, orders for appointment to a position and other documents indicating a specific profession, specialty, type of work assigned. For example, in a production cooperative, the staff list should definitely be replaced with a "list of cooperative members who take personal labor participation in the activities of the cooperative." Instead of the usual orders, minutes of meetings of PC members and orders of the Chairman of the PC, acting in accordance with the Charter, should be drawn up.
3. One more thing. Pay attention to the composition of the members of the cooperative, try not to include employees whose functions do not directly affect the generation of profit, such as an accountant, lawyer, service personnel, etc. It is better to conclude employment contracts with them or transfer them to outsourcing.
If it became necessary to conclude an employment contract with a member of the cooperative, then clearly separate the function for which he will receive a salary from his labor activity as a member of the cooperative.
We are confident that such measures will increase the chances of defending the right not to pay insurance premiums.
However, in any case, compared with labor participation, the amount of money received by each member of the cooperative in hand may be greater due to a decrease in the amount of budget revenues in the form of insurance premiums.
As a business goal of creating a cooperative, there will be an increase in the interest of employees in a qualitative result in order to increase their level of income and reduce staff turnover. Therefore, along with tax optimization, PC also has a clear managerial effect: it increases the motivation of employees, gives a sense of the participation of each employee in the distribution of profits, which increases the interest in increasing the profitability of production.
As a result, if such an organizational and legal form as a production cooperative is applied in practice, it is possible to obtain a clearly noticeable effect of reducing the tax burden (there is a possibility of switching from DOS to STS with any number of PC members), as well as the amount of insurance premiums transferred, while increasing the amount of payments to PC members in hand and additionally having received an effective way to motivate all PC members to develop production and increase its profitability.
At the same time, we categorically do not recommend following the advice of many consultants and creating production cooperatives from all your employees, refusing to employment contracts with them and thus saving on payroll taxes. With a huge degree of probability this move will be recognized as a tax scheme with all the consequences, since there is no reasonable business goal of building relationships in this way. Agree, the company dealing with retail, which does not have a single seller on its staff, but has entered into an agreement with a certain Production Cooperative " Retailers". This is very much reminiscent of the “outsourcing schemes” of past years, in which quite a few of our retailers got burned.
Example of PC use in taxCOACH® practice
An example of when this tool can be used is the following situation:
The main activity of the business was the production of chemicals and their sale to industrialists. At the same time, the key feature was that such chemical industries There were several, and new ones were constantly appearing. The sale was handled by a group of managers who did not have special knowledge in chemistry, but who knew how to sell "anything".
The features of their "working conditions" were as follows:
- minimum fixed salary;
- basic income - a percentage of the profit earned by a particular manager;
- a prescribed system of penalties and rewards, developed by the managers themselves;
- additional grounds for dismissal of managers;
- there are no stationary workplaces: there is a room with empty desktops, for which any of the managers can sit down with their laptop. After work, the table should remain as empty as it was. Similar to coworking centers.
Obviously, this nature of relations between managers and the company does not fit into the framework of labor relations with their mandatory standards and guarantees.
Since an important feature of this part of the business is precisely the ability to sell "anything", it was decided to endow this competence in the form of a Production Cooperative, which provides relevant services to production units.
Designed in the shape of a PC Trading house in this case, he accumulated a client base and experience of successful activity, selling chemicals on his own behalf and under his own brand name. The manufacturing sector, in turn, could grow and change without compromising customer relationships. All the nuances of relations with managers were flexibly regulated in the Charter of the PC.
As a result, this made it possible not only to clothe all the features of the work of "salesmen" in legally lawful forms, but also to provide an opportunity for legitimate savings in payroll taxes and obtaining cash. At the same time, we emphasize that tax savings here are not the main goal, but a “side effect” of exposing relations in the corresponding way. legal form. In this case, the tax benefit will never be recognized as unjustified.
Thus, the use of a production cooperative in a group of companies requires a discreet approach, and some of it is really unique and effective features open only to advanced users.
Artel as a form of organization
special shape organizational activities is a production cooperative. An alternative name for this type of organization is the artel. The etymology of such a name determines that each of the members of such a company must directly participate in labor activity, investing not only money, but also their own strength. This limits the circle of participants, cutting off the possibility of attracting to the activities of the organization those who have not reached the age of sixteen and are not able to invest labor resources.
Where can this form of activity be applied
A production cooperative allows you to conduct almost any activity related to the production of goods and their subsequent marketing. The only limitation is the need to register manufactured goods in accordance with all laws. Russian Federation, as well as not to create or sell those types of products that are prohibited by law for any reason. Separately, agricultural cooperatives can be distinguished. They are the same type of firm, organized under the same legal documents, but their activities are regulated by an additional federal law.
Basic provisions for artels
Founding document of the artel
The production cooperative operates on the basis of the Charter, which is created and signed by all participants. This document includes all important points, which include the amount of share contributions, the procedure for their payment, the percentage of labor participation of each shareholder, the procedure for distributing income and the amount of liability for debts. In addition, the Charter contains all the information about the existing management bodies within the organization, as well as the consequences that will occur in the event of a violation of the order.
The best field of activity for the artel
A production cooperative, the pros and cons of which balance each other, is great for the activities of firms related to the agricultural sector. Fisheries, agricultural cooperatives, and simply economic cooperatives organized according to this principle will be the most profitable and convenient to manage. This is due to the fact that in all the areas listed above, serious labor participation is necessary, and organizing efficient operation inside them only a person who understands the principles of operation of such structures is capable.
A production cooperative (artel) is a voluntary association of citizens on the basis of membership for joint production or economic activities based on their personal labor and other participation and the association of property shares by its members (participants).
Art. 107 of the Civil Code of the Russian Federation
The production cooperatives that exist in our country, in their essence and organizational and legal basis, are actually close to societies with limited liability. Indeed, the property of cooperatives is formed on a shared basis, at the expense of contributions from its members, made in monetary and material forms. The products of the cooperative and the income received from its sale and other activities also serve as sources for the formation of property. The supreme governing body of the cooperative is the general meeting.
Executive bodies represented by a board headed by a chairman. Management functions the general meeting and the board in cooperatives and societies are very similar, the mechanism for creating and registering cooperatives and societies, the content of the charters regulating their activities are also close.
Production cooperatives are created for joint production, processing, marketing of industrial, agricultural and other products, trade, and provision of services.
The words "production cooperative" or "artel" must be included in the corporate name of the cooperative.
The founding document of a production cooperative is the charter approved by general meeting its members. The number of members of the cooperative should not be less than five people. The property owned by the production cooperative is divided into shares of its members. The profit of the cooperative is distributed among its members in accordance with their labor participation, unless otherwise provided by law and the charter of the cooperative. The property remaining after the liquidation of the cooperative and the satisfaction of the claims of its creditors is also distributed.
The supreme governing body of a cooperative is the general meeting of its members. A member of a cooperative has one vote in making decisions by the general meeting. He has the right to leave the cooperative at his own discretion. In this case, he must be paid the value of the share or given property corresponding to his share, as well as other payments provided for by the charter of this organization.
A production cooperative may be voluntarily reorganized into business partnership or the company by unanimous decision of its members or liquidated. A production cooperative differs both from partnerships and from societies:
is based on a voluntary association of individuals - citizens who are not individual entrepreneurs but participating in the activities of the cooperative by their own labor. Accordingly, each member of the cooperative has one vote in managing its affairs, regardless of the size of its property contribution;
· the profit received in the cooperative is distributed, first of all, taking into account the labor participation, and not the property contribution (share). That is why the production cooperative is characterized in the Civil Code of the Russian Federation as an artel.
The Civil Code of the Russian Federation supplemented the classical construction of a cooperative artel with important provisions:
ü members of the cooperative bear additional liability for its debts, although not with all their property, but in the amount predetermined by the charter (this to some extent brings it closer to a company with additional liability). Usually this amount is a multiple of the share contribution or equity participation of a member of the cooperative, but cannot be lower than the minimum provided by law;
ü membership in a cooperative is possible for both legal entities and individuals who are not directly involved in its activities, but who make certain property contributions (and, accordingly, receive a certain income from them).
The Civil Code of the Russian Federation provides mandatory minimum members of the cooperative - at least five, because, unlike societies, a cooperative cannot function as a "company of one person". The cooperative has the possibility of creating indivisible funds (or fund), the property of which can be divided between its participants only in the event of liquidation of the cooperative after satisfaction of the claims of all its creditors. This property cannot be levied by creditors for personal debts of members of the cooperative.
An important feature of the cooperative is the fact that, taking into account labor participation, not only profit is usually shared here, but also the liquidation quota.
Advantages of a production cooperative:
· the profit of the cooperative is distributed among its members not in proportion to the shares, but in accordance with their labor contribution. The property remaining after the liquidation of the cooperative and satisfaction of the claims of its creditors is distributed in the same manner. This distribution procedure materially interests each member of the cooperative to treat his work more conscientiously;
the legislation does not limit the number of members of the cooperative, which represents great opportunities individuals to join it;
· equal rights of all members in the management of the cooperative, since each of them has only one vote.
Disadvantages of a production cooperative:
ü due to the fact that the number of members in a cooperative should not be less than five, the possibilities of its creation are significantly limited;
ü each member of the cooperative bears limited subsidiary liability for the debts of the cooperative.
