The amendments in the migration and tax legislation entered into force on 1 January 2015, amendments to the labour law came into force earlier – on 13 of December, 2014. To deal with the tax amendments, we must also understand what has changed in the migration and labour legislation.
First of all, since the main changes have affected the legal status of foreign citizens temporarily staying in territory of the Russian Federation, it is necessary to say a few words about the status and compare it with other statuses that can have a foreign citizen in Russia.
Temporarily residing foreign citizen is a person who arrived in Russia on the basis of a visa or in the order not requiring a visa, who received a migration card, and not having residence permit or temporary residence permit.
Temporarily residing in the territory of the Russian Federation a foreign citizen is a person who has received a temporary residence permit (or TRP). This status is issued in the form of a stamp in the document identifying the foreign citizen or in a separate document (in the case of, for example, with a stateless person).
Permanently residing foreign citizen is a person who has received a residence permit. A residence permit is issued in a separate document of the established form.
In this article we will consider temporarily staying foreign citizens, who arrived not in a specific order (sailors, diplomats, etc.), but regular visa.
In General, foreign citizens arriving in the order not requiring visa, the period of temporary stay is limited, it should not exceed 90 days in total within each period of 180 days (paragraph 1 of article 5 of the Federal law of 25.07.02 № 115-FZ "On legal status of foreign citizens in the Russian Federation").
To work such a foreign citizen in Russia on the basis of a patent. In case of registration of a patent or the extension of the validity period, the period of authorized stay extends (paragraph 5 of article 5 of the Federal law of 25.07.02 № 115-FZ "On legal status of foreign citizens in the Russian Federation").
From 1 of January 2015 the Federal law of 25.07.02 № 115-FZ "On legal status of foreign citizens in the Russian Federation" was amended, according to which employers or customers of works / services that are legal entities (individual entrepreneurs, private notaries, lawyers, etc.), received the right to engage in labor activity of foreign citizens legally present on the territory of the Russian Federation, who arrived without visas under 18 years of age, when they have patents.
Data right of foreign nationals to get employed to an individual on the basis of a patent is also saved.
A patent is granted to a foreign citizen for a period from 1 to 12 months and can be repeatedly extended for a period of 1 month. The total patent term including all extensions may not exceed 12 months from the date of issuance of the patent.
Among the amendments to the Labour code of the Russian Federation, it should highlight the emergence of a new Chapter 50.1 "Features of regulation of work of workers who are foreign citizens or persons without citizenship". The provisions of this Chapter designed for foreign nationals with the status of temporarily staying and temporarily or constantly living on territory of the Russian Federation.
According to the article 327.2 of the LC at the conclusion of the employment contract with a foreign citizen or stateless person temporarily staying in the Russian Federation, it is necessary to specify information about the work permit (for visa nationals) or a patent, excepting cases established by international treaties or Federal laws. The contract also specifies the provision of medical assistance, the details of the contract of voluntary medical insurance or contract for the provision of the given foreign citizen of paid medical services. The article 327.2 of TC of the Russian Federation stated that both types of contracts may be entered into by the employee and employer for the benefit of the employee.
The order of payment of personal income tax
Law No. 368-FZ has amended Chapter 23 of the Tax code of the Russian Federation. The changes affected the calculation of personal income tax for foreign nationals engaged in labor activity on hiring at physical and legal persons on the basis of the patent.
Paragraph 2 of article 226 of RF tax code regulates the procedure of calculating the amount of income tax and payment of tax by a tax agent in respect of revenue to which it is. In this article the changes, added that the tax agent calculates and pays personal income tax taking into account the reduction in the amount of fixed advance payments paid by the taxpayer independently.
A fixed advance payment of personal income tax paid by the foreign citizen at the place of implementation of activity on the basis of a patent prior to the beginning of the period for which issued (reissued, renewed) the patent. The amount of payment is equal to 1200 rubles per month indexed to the Federal deflator coefficient established for the relevant calendar year and on the regional rate, which is set for the current calendar year the authorities of the subjects of the Russian Federation.
Federal the deflator coefficient for the year 2015 approved by the order of Ministry of economic development dated 29 October 2014 No. 685 in the amount of 1,307.
A down payment can take into account only one tax agent's choice of a foreign citizen. For this purpose, the withholding agent must receive from the tax authority at the place of location (for individual entrepreneurs – at the place of residence) notice of confirmation of the right to the decrease of the estimated personal income tax in the amount of fixed advance payments paid.
After receipt of the notice, the tax agent shall be entitled to reduce the tax amount on the basis of a written application of the taxpayer and documents confirming the fact of payment of fixed advance payments.
Overpayment by a foreign national of down payment compared with calculated tax agent income tax on actual income of employee will not be considered unduly paid amount, and therefore offset or non-refundable.
Until 1 of January 2015 (according to paragraph 1 of article 2 of the Federal law from 29.12.2006 №256-FZ "On compulsory social insurance against temporary disability and maternity) mandatory social insurance were subject (along with citizens of the Russian Federation) permanently or temporarily residing on the territory of the Russian Federation foreign citizens and persons without citizenship.
1 of January, 2015 to the above mentioned persons were added temporarily staying on the territory of Russia for foreign employees (Federal law dated 01.12.2014 No. 407-FZ). The exceptions are highly qualified specialists.
Thus, starting from 1 January 2015, payments to foreign employees temporarily staying in the territory of the Russian Federation are charged insurance premiums to the social insurance Fund against temporary disability and in connection with motherhood.
At the same time article 2 of the Federal law of 29 of December 2006 N 255-FZ "On compulsory social insurance against temporary disability and in connection with motherhood" have been supplemented with part 4.1. In accordance with this clause 4.1, foreign citizens and stateless persons temporarily staying on the territory of Russia (except highly qualified specialists) have the right to receive the benefit for temporary incapacity for work. But there is a condition: if they were the insurance premiums paid by policyholders for a period of at least 6 months preceding the month in which the insured event occurs.
In addition, the amendments to the Federal law of 24 July 2009 N 212-FZ "On insurance contributions to the Pension Fund of the Russian Federation, Fund of social insurance of the Russian Federation, Federal Fund of compulsory medical insurance". Paragraph 2.1 of part 2 of article 12 of the Act specifies the rates of insurance contributions to the social insurance Fund charged on the income of the above persons is 1.8%. The same rate applies to policyholders who are eligible to apply in 2015 reduced rate (part 3, article 58 of the Federal law of 24 of July 2009 N 212-FZ).
From the foregoing it can be concluded that if the employer paid for a foreign worker temporarily staying on the territory of the Russian Federation (except HQs), including patents, insurance premiums in the FSS for a period of at least 6 months preceding the month of occurrence of the insured event (illness), the employee will be entitled to receive the benefit for temporary incapacity for work.