Earlier, an article was published on the AKATO website containing an analysis of the issue of taxation of remuneration of chairmen and members of councils of apartment buildings (hereinafter referred to as MKD). In this publication, we will consider some aspects of the application of the previously analyzed norms, including analyzing whether it is necessary to include in the management agreement provisions on the payment of remuneration to the members and the chairman of the board of the MKD, what must be provided for when making a decision on the payment of remuneration, what can be done in the event of a refusal by the management organization transfer remuneration, and how to formalize relations with members and (or) the chairman of the MKD council.
Remuneration is set at a general meeting of owners
The general meeting of owners has the right to decide on the payment of remuneration to members of the MKD council, including the chairman of the MKD council (Part 8.1, Article 161.1 of the Housing Code of the Russian Federation).
The decision of the meeting on remuneration for the chairman of the board of MKD must contain:
— terms of payment of remuneration;
— procedure for payment of remuneration;
— the procedure for determining the amount of remuneration.
Assistants to the Chairman
The house council includes not only the chairman, but also his assistants, who are members of the council. They perform some mandatory actions, such as acting as vice-chairmen if he goes on vacation or is in hospital.
Additionally, council members are involved in maintaining documents or other routine issues. They may be awarded additional remuneration, but such a decision is made exclusively by the residents of the building at the next meeting.
Salary or remuneration for the chairman of the board of MKD
The Housing Code of the Russian Federation indicates the possibility of establishing remuneration (Part 8.1, Article 161.1 of the Housing Code of the Russian Federation).
In turn, salary takes place when the legal relationship of the parties is formalized by an employment contract, where the employee works according to the position according to the staffing table, under the management and control of the employer, and is subject to the internal labor regulations (Article 15 of the Labor Code of the Russian Federation).
When conducting activities, the chairman of the council of MKD is not an employee and is not directly subordinate to the management authority or the owners of the premises (who theoretically can act as employers); the chairman of the council of MKD performs certain functions stipulated by the provisions of the Housing Code of the Russian Federation and the decision of the general meeting.
The Ministry of Finance, in letter dated February 7, 2021 No. 03-15-05/7618, reflected the opinion that the payment of remuneration to the chairman of the board of apartment buildings is related to the performance of managerial functions by him and the legal relations between him and the owners of the premises are regulated by civil law.
Colleagues from acato.ru, studying the issue of formalizing legal relations between the chairman of the council of the MKD and the management authority, concluded:
It is prohibited to conclude an employment contract in which the management organization is the employer, and the members and (or) chairman of the council of the MKD are the employee. The members and the chairman of the MKD board, by the nature of their activities, control the fulfillment of the terms of the management agreement with the management organization and cannot depend on it as an employer. If an employment contract is concluded, there will be a conflict of interest - the members and the chairman of the MKD board are representatives of the owners and must represent their interests, accordingly, I cannot depend on the management organization in material terms.
Thus, taking into account the provisions of the Housing Code of the Russian Federation, it would be correct to talk not about salary, but about remuneration to the chairman of the council of the MKD.
The article will be useful: The list of information posted in the GIS Housing and Communal Services has been expanded
Can the chairman control the activities of citizens?
Each owner of an apartment or commercial property has the right to engage in various types of work in this property. If he has permission from the local administration, he can even carry out work related to housing redevelopment.
The chairman is vested with certain powers, which include the ability to influence the work of the owner of the premises. But such impacts should be limited, so claims can only be made in cases of violation of legal requirements or in other extreme situations. If the homeowner has official permission for the work being carried out, and also does not violate the rights of other persons, then the chairman cannot influence him in any way. Otherwise, the owner of the property may complain about the selected chairman.
How many votes are needed to approve the reward?
To make a decision on the payment of remuneration to the chairman of the council of the apartment building, a simple majority of votes is required on the total number of votes of the owners of premises in the apartment building taking part in the meeting. This general rule is established in Part 1 of Art. 46 of the Housing Code of the Russian Federation and in terms of remuneration there is no exception in the form of a decision being made by at least 2/3, etc.
As a result, for reward it will be sufficient to have a quorum of more than 50% of the number of votes in the house + from this quorum the majority of votes participating in the meeting must vote.
Utilities and housing services
Before you understand the salary of the chairman of the HOA, you need to understand what the income of any home consists of.
An apartment building is an economic facility with a whole network of engineering networks and communications that require regular and attentive attention.
Any apartment owner must pay utility bills on time . Part of the amount goes to pay for utilities consumed by the house over the past period, such as heating, hot and cold water supply, electricity and sanitation.
The second part of the payments goes to the maintenance of common property, as well as to the payment of labor to specialists hired to perform a particular type of work.
It is from this part that wages are paid to the employees of the management company or, if the house is managed by an HOA, to members of the board and the chairman of the HOA.
The overwhelming majority of ordinary people are sure that the work of the chairman of the HOA is not so significant that this item should be included in the column of house expenses. But if you take into account the entire volume of work performed and the time this activity requires, this position should be paid.
Can the chairman of the HOA work as an accountant at the same time?
On July 18, 2011, a law came into force in which an amendment was made stating that the head of an organization, such a position is the chairman of the HOA, does not have the right to combine his main activity with any other during the same working hours.
The Chairman may maintain financial records, but this will not be considered as holding a separate position . True, homeowners who are members of an HOA can increase the amount of remuneration for this amount of work performed.
Legislative norms
One of the questions that concerns the participants of the partnership is whether the chairman of the HOA has the right to receive a salary. The Labor Code (LC RF), namely Article 56, will help you understand this issue, which determines the mandatory registration of an employee when he is hired by an employer, who assigns specific job responsibilities to the accepted unit.
Since any work requires remuneration, the question of whether the chairman of the HOA can receive a salary is resolved positively. Salaries are set according to the clauses of the signed agreement, along with the definition of working conditions and terms of reference.
- Responsibilities of the chairman of the HOA and his rights
The responsibilities of the HOA include carrying out actions aimed at maintaining comfortable living conditions, which requires the involvement of workers to perform certain repairs and maintenance of the house. The chairman of the board, concluding contracts with such performers, himself needs legal registration of his actions. Performing the functions of an employer for some, he himself needs to be hired. In relation to the residents of the house, he becomes the same worker.
If the employment parameters of hired performers are regulated by the head of the board, it becomes unclear who sets the salary of the HOA chairman, because a person cannot sign a contract with himself. Such legal difficulties contributed to the emergence of abuses on the part of chairmen who calculated their own salaries.
Such behavior is unlawful, and the procedure for calculating and processing earnings is established in accordance with the provisions of the Housing and Labor Code.
1The first thing to be determined is the form of payment to the head of the board. According to Art. 147 of the Housing Code of the Russian Federation, the chairman is part of the management apparatus of the HOA and is a member of the board. In turn, the board is elected at a meeting of owners from among the participants of the partnership. 2After choosing the composition of the board, the most competent and worthy representative is selected from among its members. He is trusted to make the most important decisions and to speak on behalf of homeowners before contractors, supervisory organizations and authorities.
Within the framework of Part 3.1 of Article 147, the right of a member of the board to combine labor activities in the same partnership is limited. Since the head is chosen from the board, a contradiction arises:
- Article 147 prohibits the employment of the chairman in the HOA.
- Clause 11 of Art. 145 it is allowed to assign remuneration to the head of the board.
The conclusion follows from two provisions of the legislation: it is impossible to formalize the payment of wages under an agreement with an employee, but the right to remuneration remains (for a certain range of actions).
How to draw up an employment contract?
The presence of an official document regulating the relationship between the chairman and the HOA is beneficial to both parties.
On the one hand, the organization, which is the HOA, receives a manager who is responsible both for his own actions and for the actions of the employees he hires. It should be understood that the work of the chairman does not have a clear established schedule with weekends and weekdays.
It should be understood that all these responsibilities are assigned for a reason. The chairman also has the right to leave, the number of days is determined by the Labor Code of the Russian Federation. The code also provides for receiving remuneration twice a month: advance payment and salary. The time during which a person performs the duties of the chairman of the HOA is also counted towards the total length of service.
Logically, the agreement between the chairman and the HOA should be signed by the head, in this case, the chairman himself. But such a drafting of the document will not be legally correct. Therefore, it makes sense to indicate in the constituent documents of the HOA the person who will have the right to sign this kind of paper .
What else should the employment contract between the chairman and the HOA contain?
- Full name of the organization, as well as the last name, first name and patronymic of the employee. With whom the contract is concluded.
- Passport details of the citizen with whom the agreement is concluded, reference to the document justifying the actions of the partnership.
- Date and place of conclusion of the contract.
- The contract should initially specify the working conditions of the chairman, as well as his workplace. This is necessary so that each tenant, if necessary, can easily find a manager.
- Duties to be performed by the chairman.
- The validity period of the contract must be indicated.
- The procedure for calculating remuneration and the period for its payment.
The contract may contain a lot of other nuances, which, in the opinion of homeowners, should be outlined from the very beginning. But it should be understood that the employer, in this case the homeowners, can supplement this agreement only with those clauses that are designed to improve the employee’s working conditions.
Documenting
To ensure that no questions arise regarding payments to the chairman, they must be fully correctly executed in accordance with all procedures established by law. And they are:
- After certain work is completed, the manager draws up a work completion certificate. It reflects what results were achieved, and how much money and time was spent on this, and what the role of the chairman was.
- A meeting is held monthly, most often this is a meeting of the board, and, among other things, the remuneration for the chairman is established at it based on the results of the analysis of the acts of work done.
- All this is recorded in the protocol, where permission is secured to withdraw a certain amount from the HOA’s current account, intended as a reward.
Do I need to pay insurance premiums and what?
Because Art. 149 of the Housing Code of the Russian Federation regulates the performance of certain functions by the chairman of the partnership, then his services can be recognized as the labor activity of an individual. This means that the income received by the chairman from activities in the HOA must be subject to insurance premiums in accordance with the general procedure (clause 1 of Article 420 of the Tax Code of the Russian Federation). Those insurance premiums for which the person is insured are subject to payment.
The following fees are usually paid:
- Pension insurance.
- Health insurance.
- Insurance in case of temporary disability.
The structure of the HOA includes a manager, an accountant and an emergency dispatch service, which can be read about on our website.
Tax base
The remuneration of the chairman of the HOA is subject to taxes and insurance contributions. Why is that?
The income of the director of a tenants' association is nothing more than making a profit . What taxes are levied on the remuneration of the chairman of the HOA?
This type of income is subject to mandatory personal income tax. As a percentage, this is 13% of total income.
As for insurance premiums, the head of the partnership is also obliged to pay them with constant regularity. This can be done either monthly or one-time for the whole year at once. This is necessary for this. So that in the future there will be no problems with calculating pensions.
How exactly the chairman will make a tax deduction is his personal problem . He can carry out this procedure personally, or he can contact a regional operator or a credit institution that provides this type of service.
Salary of an accountant in a homeowners association
A tenants' association is not a commercial organization, but this does not mean that this organization is exempt from accounting. If the head of the partnership is not able to carry out this work himself, then the HOA is obliged to hire a person to fill this position.
It is the accountant who is responsible for the formation of all reporting documents, timely submission of reports and declarations.
The amount of remuneration to the accountant for conducting this work is also determined by the board of the partnership . It all depends on whether the accountant works full time or whether he works part-time in a given HOA only on previously agreed upon days.
Can the chairman of the HOA work part-time?
The Labor Code in 2021 prescribes the right of every citizen to combine several jobs at once. But you should understand the specifics of working as the chairman of an HOA. This is a leadership position that requires constant vigilant monitoring of the processes taking place in the house.
His responsibilities include accepting all work performed and signing certificates of completed work. Based on this, we conclude that combining the chairman of the HOA with other jobs is an unrealistic task.
