How the document will allow you to save money. The social package of some companies includes catering for employees. Payment for meals is usually made on the basis of agreements enshrined in labor or collective agreements. But the legislation does not provide for such an obligation. There are usually no claims regarding income tax - expenses are taken into account on the basis of paragraph 25 of Article 255 of the Tax Code of the Russian Federation (letter of the Ministry of Finance of Russia dated March 31, 2011 No. 03-03-06/4/26).

However, payment for food does not fall under the concept of compensation specified in Article 165 of the Labor Code of the Russian Federation. It is also not mentioned among non-contributory payments (Article 9 of the Federal Law of July 24, 2009 No. 212-FZ). Consequently, the corresponding amounts must be included in the base for calculating insurance premiums (Part 1, Article 7, Parts 1, 6, Article 8 of the Federal Law of July 24, 2009 No. 212FZ).

Officials of the Ministry of Health and Social Development of Russia adhere to this position (letters dated 05.08.10 No. 2519-19 and dated 23.03.10 No. 647-19). The judges also support them in this (resolutions of the Second Arbitration Court of Appeal dated 04.26.12 No. A28-9376/2011, Seventh Arbitration Court of Appeal dated 06.07.12 No. A45-9799/2012, Seventeenth Arbitration Court of Appeal dated 09.28.11 No. 17AP-9100 /2011-AK).

But the company must keep personalized records of the object subject to insurance premiums for each employee (Part 6, Article 15, Clause 2, Part 2, Article 28 of the Federal Law of July 24, 2009 No. 212FZ). If it is impossible to determine the amount of material benefits received by a specific individual, then insurance premiums are not calculated. It is impossible to determine the share of income of each person by arithmetic division, since the presence of an employee at the workplace for an equal amount of time with other persons does not mean that he received the same amount of benefits as his colleagues (resolution of the Federal Arbitration Court of the Far Eastern District dated May 30, 2012 No. F03 -1636/2012).

Let us note that in the absence of personification, employees’ money is also saved – due to a reduction in personal income tax. The Russian Ministry of Finance still insists on including income in the form of payment of impersonal expenses in the tax base for personal income tax (letter dated 04/18/12 No. 03-04-06/6-117), but the courts do not support this position.

When making a decision, they are guided by paragraph 8 of the Information Letter of the Supreme Arbitration Court of the Russian Federation dated June 21, 1999 No. 42. The Supreme Arbitration Court of the Russian Federation pointed out the inadmissibility of an impersonal arithmetic calculation of a person’s income based on the total amount of expenses (resolution of the Ural Federal Arbitration Courts dated August 20, 2009 No. Ф09-5950/09- C2, Far Eastern district dated June 15, 2009 No. F03-2484/2009).

Consequently, you can save on insurance premiums by properly organizing the employee’s meals. It should not allow the company's expenses to be attributed to a specific person. This can be achieved in two ways. Partial meals can be provided as a buffet. And some of the costs can be transferred to other contracts, in particular a lease agreement.

Any catering organization that provides catering services (catering company) will help solve this problem. Catering services mean the organization of catering according to consumer orders outside of public catering (clause 4.4 of GOST R50764-2009, (approved by order of Rostekhregulirovaniya dated 03.11.09 No. 495-st), clause 6.1 SP2.3.6.1079-01 (approved. Resolution of the Chief State Sanitary Doctor of the Russian Federation No. 08.11.01 No. 31).

The principle of such services is similar to organizing, for example, a wedding banquet. They include preparing dishes and delivering them to the place of order, heating dishes, setting the table, cleaning dishes, premises and territory. Services are provided by the catering company's field service staff. Table linen, dishes, cutlery, movable (mobile) kitchen equipment and supplies are considered to be rented or rented. In this way, you can organize meals for employees both working in the office and traveling.

In what form is it compiled? Catering services are provided on the basis of an appropriate agreement. It is mixed - it combines elements of a contract for the provision of catering services and elements of a rental agreement for kitchen equipment and supplies.

Civil law does not require any of these agreements to be concluded in writing. This means that an oral form is also possible for a contract for catering services. However, this option will not allow one to clearly state the important terms of the contract - they must confirm the impossibility of personifying part of the costs. Therefore, it is better to conclude an agreement in writing.

What must be in the document. The contract must clearly distinguish between two subjects - the provision of catering services (that is, the provision of ready-made meals) and the rental of equipment and supplies for organizing a food service point.

The predominant part of the catering company's remuneration in the contract is provided for rent and service. It is necessary to highlight which part of the payment relates to “general” kitchen equipment, and which part to individual equipment, which can be taken into account as personalized expenses. The rest of the contract costs are for food. Here it is better to highlight separately the cost of ready-made dishes for the buffet and a la carte dishes.

Additional security measures. In order to exclude claims for income tax, the contract can indicate that the company, as the customer of catering services, acts in fulfillment of its obligations to employees as provided for in the collective agreement. Although this is not necessary, for these purposes the collective agreement can be referred to in the manager’s order for the search and selection of a catering company.

When distributing the catering company's remuneration in the agreement between payment for ready-made dishes, rent and service, one should focus on objective indicators. For example, you should not set the cost of a portion equal to, much less significantly lower than, its cost.

Sometimes caring employers provide their employees with buffet lunches - various dishes and drinks are freely available, which employees can take at their discretion. Let's talk about the tax features of accounting for the costs of such dinners and how to avoid disputes with inspectors.

“Officially conflict-free” option

The action plan for this option is as follows.

1. Include a provision for the provision of free lunches in collective or employment agreements.

2. Take a written application from each employee with a request to provide part of the salary in the form of free food Art. 131 Labor Code of the Russian Federation. After all, the cost of lunches becomes part of the remuneration in non-monetary form. Let us remind you that the share of “non-monetary” wages should not exceed 20% of the accrued monthly salary of an employee clause 1 section II Letters of the Ministry of Finance dated January 17, 2011 No. 03-04-06/6-1.

3. You charge VAT on the cost of lunches, because the transfer of free lunches to employees is a sale subject to VAT subp. 1 clause 1 art. 146, paragraph 2 of Art. 154 Tax Code of the Russian Federation; Letters of the Ministry of Finance dated August 27, 2012 No. 03-07-11/325; Federal Tax Service for Moscow dated March 3, 2010 No. 16-15/22410. Some courts agree with this Resolution of the Federal Antimonopoly Service of the Moscow Region dated April 27, 2009 No. KA-A40/3229-09-2.

4. You accept input VAT on purchased lunches for deduction. There shouldn’t be any difficulties in justifying the deduction at all, since you calculated the tax on the cost of the buffet. And this deduction of input VAT can “sweeten” the need to charge VAT on the cost of meals. After all, if the tax base is calculated based on the cost of products, then the amount of accrued VAT will be equal to the amount of deductions. And you won’t have to pay anything to the budget.

5. Determine the cost of lunches for each employee monthly.

For example, you can mark those who come to the canteen every day and then determine the cost of a month’s food for each of them. And you can do it even simpler: identify “those who eat” (from among those who wrote an application for meals) according to the work time sheet - according to the principle “if you came to work, that means you went to the canteen.” Moreover, the Ministry of Finance is not against this approach , .

6. You charge personal income tax and insurance premiums on the cost of food, including VAT. The amount of contributions is taken into account in “profitable” expenses.

7. Take into account the cost of lunches when calculating income tax as part of labor costs. pp. 4, 25 tbsp. 255 Tax Code of the Russian Federation.

This option is not only safe (inspectors will not find fault), but also very profitable for the company. After all, the tax burden is quite feasible.

Of course, employees may not be very happy that personal income tax will be withheld from their salaries. However, they will be fed! And if someone does not want to have lunch, they can always refuse to participate in corporate catering.

Option with disputes and court

There can be many versions of this option. And any deviation from the scheme described in the previous version can lead to disputes.

Let's consider various possible nitpicking of inspectors regarding specific taxes.

We do not charge personal income tax and insurance premiums: there is a chance to fight off claims

Free lunches are nothing more than in-kind income for workers. And this income, according to the Ministry of Finance, is subject to personal income tax Art. 211 Tax Code of the Russian Federation; Letters of the Ministry of Finance dated January 30, 2013 No. 03-04-06/6-29, dated April 18, 2012 No. 03-04-06/6-117. The same situation applies to insurance premiums and Part 1 Art. 7 of the Law of July 24, 2009 No. 212-FZ; p. 4 Letter of the Ministry of Health and Social Development dated 05.08.2010 No. 2519-19.

WE TELL THE MANAGER

Organizing a buffet for employees at the expense of the company does not entail a large tax burden.

However, when organizing a buffet, it is simply impossible to accurately determine the income of each employee. You can’t force everyone after lunch to write down what they ate today.

At the same time, the Ministry of Finance believes that an organization providing food to employees, in order to perform the functions of a tax agent, "must take all possible measures to evaluate and take into account the economic benefits received by employees" Art. 226 Tax Code of the Russian Federation; Letter of the Ministry of Finance dated January 30, 2013 No. 03-04-06/6-29. This means that it is necessary to determine the amount of income of each employee. At least indirectly - as we have already said above Letters of the Ministry of Finance dated 04/18/2012 No. 03-04-06/6-117, dated 06/19/2007 No. 03-11-04/2/167. The main thing is that, based on the results, the cost of all lunches should be distributed among employees and transferred to the personal income tax budget. Please note that sometimes the courts support tax authorities who charge additional personal income tax in such situations Resolution of the Federal Antimonopoly Service of June 22, 2009 No. A55-14976/2008; FAS 9 AAS dated December 23, 2011 No. 09-AP -33112/2011-AK.

However, you can argue with inspectors and not charge personal income tax on the cost of meals using the following arguments:

• If the amount of income cannot be determined, then there is no object of personal income tax taxation. This position was voiced long ago by the Supreme Arbitration Court of the Russian Federation clause 8 of the Information Letter of the Presidium of the Supreme Arbitration Court dated June 21, 1999 No. 42. Federal arbitration courts also generally support the taxpayer in Resolution of the Federal Antimonopoly Service UO dated August 20, 2009 No. F09-5950/09-S2; FAS DVO dated June 15, 2009 No. F03-2484/2009; FAS SKO dated March 12, 2008 No. F08-478/08-265A. This argument can also be used to justify why you did not pay insurance premiums;
• The Ministry of Finance explains in its letters that if it is impossible to individualize employees’ lunches, then personal income tax does not arise. Letters of the Ministry of Finance dated April 15, 2008 No. 03-04-06-01/86, dated January 30, 2013 No. 03-04-06/6-29. These clarifications can at least save the organization from fines and penalties. subp. 3 p. 1 art. 111 Tax Code of the Russian Federation.

Income tax: if you take into account the cost of lunches in expenses without personalization, there will be problems

According to the Ministry of Finance, the cost of a buffet can be included in labor costs taken into account for profit tax purposes if:

• provision of lunches is provided for in the collective or labor agreement with the employee clause 25 art. 270, pp. 4, 25 tbsp. 255 Tax Code of the Russian Federation; Letters of the Ministry of Finance dated 06/04/2012 No. 03-03-06/1/292, dated 03/04/2008 No. 03-03-06/1/133;
• it is possible to determine the income of each employee and Letters of the Ministry of Finance dated August 30, 2012 No. 03-04-06/6-262; Federal Tax Service for Moscow dated April 13, 2011 No. 16-15/035625@.

If any of these conditions are not met, then, according to the inspectors, you are simply donating lunches, and it is impossible to say exactly to whom exactly Articles 129, 135 of the Labor Code of the Russian Federation. This means that these are not wages at all and the costs of lunches are expenses that are not taken into account for tax purposes, profits and Art. 270 Tax Code of the Russian Federation.

There are cases when organizations managed to defend the inclusion of costs for a “non-personalized” buffet precisely as remuneration - in those situations, the provision of lunches was provided for in the labor and collective agreement.

The company organizes a buffet for its employees. Is it necessary to withhold personal income tax and charge insurance premiums from the potential income of buffet participants - read the article.

Question: But I would like an answer to question No. 1126463. You didn’t say a word about personal income tax and insurance premiums. Will additional documents be required for confirmation, since the organization cannot calculate them. For example, an order. estimate, etc.

Answer: In your case, when organizing meals on a buffet basis, it is impossible to organize a personalized accounting of the income in kind that could be received by everyone who participated in the buffet. Therefore, you do not need to withhold personal income tax and charge insurance premiums from the potential income of the buffet participants.

Rationale

How to take into account when taxing the costs of free meals for employees at the initiative of the organization

Taxation of transactions related to the organization of free meals for employees depends on whether personal accounting of expenses for free meals is kept for each employee.

The cost of food provided to employees free of charge is recognized as their income in kind. This conclusion follows from subparagraph 1 of paragraph 2 of Article 211 of the Tax Code of the Russian Federation.

If personal accounting of food expenses is maintained (for example, using coupons), then the organization is obliged to withhold personal income tax from the amount of such income.

Withhold personal income tax even if free food is provided due to operational necessity (for example, in accordance with biological safety requirements). This was stated in the letter of the Ministry of Finance of Russia dated December 4, 2012 No. 03-04-06/6-340.

The basis for calculating personal income tax is the cost of the food provided, determined according to the rules of the Tax Code of the Russian Federation, taking into account VAT (clause 1 of Article 211 of the Tax Code of the Russian Federation). Withhold personal income tax at the expense of any cash payments in favor of the employee (clause 4 of article 226 of the Tax Code of the Russian Federation).

An exception is the cost of food provided to employees who are hired to conduct seasonal field work. In this case, there is no need to withhold personal income tax (clause 44, article 217 of the Tax Code of the Russian Federation).

If it is impossible to keep personalized records (for example, if an organization purchases drinking water, tea or coffee for employees and there is no possibility of recording individual consumption), it is impossible to assess the economic benefit received by each employee. Consequently, income subject to personal income tax does not arise (letters of the Ministry of Finance of Russia dated March 21, 2016 No. 03-04-05/15542, dated January 30, 2013 No. 03-04-06/6-29).

Personal income tax is assessed on employee income (). When providing free food, income is recognized as economic benefit received in kind. To correctly calculate tax, income must be estimated (). But if free meals are organized on a buffet basis, it is impossible to determine the amount of income received by each employee. In such a situation, personal income tax cannot be withheld. This point of view is confirmed by decisions of the Federal Antimonopoly Service of the North-Western District dated February 21, 2008 No. A56-30516/2006 and the Volga District dated November 16, 2006 No. A12-4773/06-C36.

Nevertheless, regulatory agencies require that organizations fulfill the duties of tax agents provided for in paragraph 1 of Article 230 of the Tax Code of the Russian Federation and ensure individual accounting of all employee income in tax registers, including those received by them in the form of free meals. In particular, in letters dated April 18, 2012 No. 03-04-06/6-117, dated June 19, 2007 No. 03-11-04/2/167, the Ministry of Finance of Russia recommends determining the amount of such income based on the total cost of the provided food and time sheet data (other similar documents). But in practice, it is more expedient to organize a record of visits to the canteen by each employee of the organization. This will allow a more objective assessment of the income received by him. If an organization cannot determine the amount of employee income in the form of free buffet meals, then the tax department will determine it by calculation (). There are examples of court decisions confirming the legality of this approach (see, for example, the resolution of the Federal Antimonopoly Service of the Volga District dated June 22, 2009 No. A55-14976/2008).

Only with regard to payment for corporate holidays, the financial department agrees that in this case there is no need to pay personal income tax, since there is no way to personify and evaluate the economic benefit received by each employee.

Insurance premiums

If, when providing free meals, it is impossible to determine the amount of income received by each employee (buffet, corporate events), then there is no need to charge insurance premiums from the cost of free meals. Insurance contributions are levied on payments and other remuneration to citizens under employment (civil law) contracts, that is, targeted payments to specific employees. This follows from the provisions of paragraph 1 of Article 420 of the Tax Code of the Russian Federation,

The organization provided its employees with free meals on an individual basis. Currently, the organization is considering the option of organizing free meals for these workers on a buffet basis, without personalization. At the same time, the provision of free food is provided for in employment contracts with employees. At the same time, no deductions are made from employee income (to pay for food).
Is it necessary to tax the services of providing free meals to employees on a buffet basis, that is, without personalization, with VAT?

Having considered the issue, we came to the following conclusion:
In the situation under consideration, operations to provide free buffet lunches to employees are not subject to VAT.

Rationale for the conclusion:
In accordance with the Tax Code of the Russian Federation, the sale of goods (work, services) on the territory of the Russian Federation is recognized as subject to VAT.
Thus, the objects of VAT taxation, among other things, are:
- sales of goods, works, services on the territory of the Russian Federation. At the same time, the transfer of ownership of goods, the results of work performed, the provision of services free of charge for the purposes of the Tax Code of the Russian Federation is also recognized as a sale (Tax Code of the Russian Federation);
- transfer of goods on the territory of the Russian Federation (performance of work, provision of services) for one’s own needs, expenses for which are not deductible (including through depreciation charges) when calculating corporate income tax (Tax Code of the Russian Federation).
The transfer of products mentioned in the question in the form of catering on a buffet basis, in our opinion, can be classified as subject to VAT taxation both on the basis of the Tax Code of the Russian Federation and on the basis of the Tax Code of the Russian Federation.
At the same time, we note that the question of the emergence of an object of taxation when using purchased products for the needs of the organization’s employees is not unambiguous. Much depends on whether there is a transfer of ownership of the transferred goods (services provided) to specific persons, or whether the transfer of goods or provision of services takes place in the interests and within the organization itself.
According to the Tax Code of the Russian Federation, the sale of goods, work or services is recognized, respectively, as the transfer on a paid basis of ownership of goods, the results of work performed by one person for another person, the provision of services for a fee by one person to another person, and in cases provided for by the Tax Code of the Russian Federation, the transfer of ownership for goods, results of work performed by one person for another person, provision of services by one person to another person - free of charge.
In turn, the Tax Code of the Russian Federation contains an exhaustive list of transactions that are not recognized as subject to VAT.
First of all, these are operations that are not recognized as sales on the basis of the Tax Code of the Russian Federation.
Neither the Tax Code of the Russian Federation nor the Tax Code of the Russian Federation specifies operations to provide workers with food free of charge.
The norms of the Tax Code of the Russian Federation define a list of transactions that are not subject to taxation (exempt from taxation) VAT.
Thus, on the basis of the Tax Code of the Russian Federation, operations for the sale of food products directly produced by canteens of educational and medical organizations and sold by them in the specified organizations, as well as food products directly produced by public catering organizations and sold by them to the specified canteens or organizations are exempt from VAT.
As follows from the text of the question, in the situation under consideration this rule does not apply due to the fact that the organization is not educational or medical, and does not sell products in these organizations.
The Tax Code of the Russian Federation does not contain other norms providing for exemption from VAT on operations to provide meals to individuals.
Taking into account the above standards, we believe that, in general, the cost of free meals provided to employees is included in the VAT tax base on the basis of the Tax Code of the Russian Federation. In this case, the tax amounts presented on such goods are subject to deduction in accordance with the generally established procedure (Tax Code of the Russian Federation). See, for example, the Ministry of Finance of Russia dated 10/16/2014 N 03-07-15/52270, dated 07/08/2014 N, dated 02/11/2014 N, dated 08/27/2012 N, dated 07/05/2007 N, Federal Tax Service of Russia for Moscow dated 03.03.2010 N, information from the Federal Tax Service of Russia for the Chelyabinsk region dated November 30, 2011 “Direct Line”: VAT” (Question: An organization purchases tea and coffee for its employees. How to take VAT into account?).
At the same time, as expressly stated in paragraph 1 of Art. 39 of the Tax Code of the Russian Federation, sales are recognized as transactions involving the transfer of ownership of goods (work, services) by one person to another person.
That is, from the cumulative interpretation of paragraphs. 1 clause 1 art. 146 of the Tax Code of the Russian Federation and paragraph 1 of Art. 39 of the Tax Code of the Russian Federation, we can conclude that the object of taxation arises only when goods (work, services) are transferred to a specific person.
If it is not possible to determine the person to whom the ownership of the transferred goods (works, services) is transferred, the object of VAT taxation does not arise.
Representatives of the financial department adhere to a similar position, in their opinion, VAT does not arise when providing employees of an organization with food products, the personification of which is not carried out, for example, when providing employees of the organization with free food products in public premises of the office (tea, coffee, sugar, milk, fruits) or when organizing buffet meals.
Thus, the Ministry of Finance of Russia in a letter dated May 12, 2010 N 03-03-06/1/327 indicated that the object of taxation arises in the event of an organization transferring ownership of purchased goods (in particular tea, coffee, candies, cookies laid out on a common table ) to specific individuals.
Commenting on the presence of controversial clarifications on this issue, in another material a representative of the financial department explained: for goods purchased for the needs of the organization not related to the production and sale of goods (works, services), including to ensure comfortable working conditions for the organization’s employees and for conducting representative events, VAT based on paragraphs. 1 clause 1 art. 146 of the Tax Code of the Russian Federation is not calculated.
This means that when purchasing tea, coffee, cookies, sweets, etc. for display on tables in order to create comfortable conditions for clients waiting to sign contracts, as well as for employees of the organization, there is no obligation to calculate and pay VAT.
There is no object of VAT taxation in relation to purchased drinking water and personal hygiene items (see the material “They are greeted by their clothes, they are checked by the Tax Code” (interview with K.V. Novoselov, Ph.D., Associate Professor of the Department of the Financial University under the Government of the Russian Federation, Advisor to the State Civil Service of the Russian Federation, 1st class, certified consultant on taxes and duties, and E.N. Vikhlyaeva, Advisor to the Department of Indirect Taxes of the Department of Tax and Customs Tariff Policy of the Ministry of Finance of Russia) (“Keeping up with the legal matter”, No. 17, September 2010 .)).
The Ministry of Finance of Russia in dated 06/11/2015 N 03-07-11/33827 also reported that when food products (including tea, coffee, sugar, etc.) are provided free of charge to employees of an organization, the personification of which is not carried out There is no VAT. There is also no right to deduct tax imposed on these goods.
The Ministry of Finance of Russia dated August 25, 2016 N 03-07-11/49599 considers the situation when a company provides visitors and employees with free tea, coffee, candy, sugar, etc. in public areas of the office. It is clarified that in such a situation the object of VAT taxation does not arise. In this case, VAT paid on the purchase of these goods is not deductible.
A similar point of view is expressed in the Ministry of Finance of Russia dated 03/06/2015 N 03-07-11/12142, dated 12/13/2012 N.
It should be noted that the tax authorities agree with this approach.
For example, the letter of the Federal Tax Service of Russia for Moscow dated November 27, 2013 N 16-15/123500 also states that the object of VAT taxation arises when an organization transfers ownership of goods to specific persons.
In the situation under consideration, no payment from employees (including in the form of deductions from income) is expected.
Thus, since food products are laid out on a common table (“buffet”), therefore, there is no need to talk about the transfer of ownership of them to any employee or specific client, therefore, the object of VAT taxation does not arise in such a situation.
Let us note that in the Ninth Arbitration Court of Appeal dated December 23, 2011 N 09AP-33112/11 (FAS Moscow District dated April 6, 2012 N F05-2428/12 this resolution was left unchanged) the judges expressed the judgment that from the point of view of a business transaction, the provision of food employees - this is the transfer (use) of goods for their own needs. In accordance with the Tax Code of the Russian Federation, the transfer of goods for one's own needs is subject to VAT only if the costs of the transferred goods are not deductible when calculating corporate income tax.
The costs of providing free meals to employees in the form of a buffet in accordance with the terms of concluded employment contracts meet the criteria for labor costs taken into account for income tax purposes. Therefore, the employer deducted these expenses. In this regard, there was no reason to pay VAT.
Due to the fact that when providing food to employees of an organization, the personification of which is not carried out, no object of VAT taxation arises, then the amount of “input” VAT on purchased food products and services related to the organization of this food, the employer, by virtue of the Tax Code of the Russian Federation, to does not accept deductions, but includes them in the cost of purchased products and services.
At the same time, there is an example of judicial practice where the taxpayer defended the right to deduct tax.
According to the judges, the organization’s employees were involved in the production process, the result of which is the sale of manufactured products, subject to VAT, therefore “input” VAT on tea, coffee, etc. purchased for employees. subject to deduction on legal grounds (see FAS Moscow District dated April 22, 2010 N KA-A40/3571-10).

Prepared answer:
Expert of the Legal Consulting Service GARANT
Galimardanova Yulia

Response quality control:
Reviewer of the Legal Consulting Service GARANT
professional accountant Rodyushkin Sergey

The material was prepared on the basis of individual written consultation provided as part of the Legal Consulting service.

In many companies, employers organize for their employees, if not full meals, then at least the opportunity to have a snack (tea, coffee, sandwiches, etc.). In any case, the question arises whether the corresponding costs can be taken into account when calculating income tax. Not long ago, the Ministry of Finance expanded the list of conditions that must be met in order to recognize these expenses for profit tax purposes.

In general, when determining the income tax base, expenses in the form of compensation for the increase in the cost of food in canteens, buffets or dispensaries or provision of it at preferential prices or free of charge are not taken into account (clause 25 of Article 270 of the Tax Code). There are only two exceptions to this rule. One of them concerns special food for certain categories of workers in cases provided for by current legislation. And the second applies to cases where free or reduced-price meals are provided for in labor or collective agreements.
In turn, the list of labor costs is determined by Article 255 of the Tax Code (hereinafter referred to as the Code). In accordance with this norm, it includes any accruals to employees in cash or in kind, incentive accruals and allowances, compensation accruals related to working hours or working conditions, bonuses and one-time incentive accruals, expenses associated with the maintenance of these employees and provided for by the norms legislation of the Russian Federation, labor or collective agreements. Moreover, paragraph 4 of Article 255 of the Code states that labor costs for the purposes of Chapter 25 of the Code include, in particular, the cost of food and products provided free of charge in accordance with the legislation of the Russian Federation, as well as... other expenses provided for by labor or collective agreement.
Thus, it appears that a necessary and sufficient condition for attributing free food provided to employees to expenses is a mention of such in the labor and (or) collective agreement. However, in reality it is not so simple.

All or nothing?

In a letter dated January 9, 2017 No. 03-03-06/1/80065, representatives of the Ministry of Finance “dug,” as they say, deeper. Financiers indicated that expenses for food for employees provided for by labor and (or) collective agreements are considered in tax legislation as expenses that reduce the size of the income tax base only if they are part of the remuneration system. And the inclusion of amounts in labor costs, as in the case of other wage accruals, presupposes the ability to identify the specific amount of income of each employee, naturally, with the accrual of personal income tax.
Let us recall that when determining the base for personal income tax in accordance with paragraph 1 of Article 210 of the Code, all income of the taxpayer received by him both in cash and in kind is taken into account. Article 41 of the Code defines income as an economic benefit in cash or in kind, taken into account if it can be assessed and to the extent that such benefit can be assessed. At the same time, according to subparagraph 1 of paragraph 2 of Article 211 of the Code, income received by a taxpayer in kind, in particular, includes payment (in whole or in part) for it by organizations for goods (work, services), including food.
In other words, the cost of meals for employees paid by the employer is the employee’s income in kind, which is subject to personal income tax in the general manner. And, as the Ministry of Finance points out in its explanations, the organization, as a tax agent for personal income tax, is obliged to “take all possible measures to assess and take into account the economic benefits (income) received by employees” (see, for example, letters from the Ministry of Finance dated March 21, 2016 N 03-04-05/15542, dated September 7, 2015 N 03-04-06/51326, etc.). True, at the same time, officials note that if it is still not possible to personify and evaluate the economic benefit received by each employee (for example, if meals are organized on a buffet basis), then income subject to personal income tax does not arise. Indeed, under such circumstances, it is impossible to estimate income in kind, that is, who ate how much.
Thus, let's summarize what we have. Firstly, the provision of food for workers in any case must be stipulated in labor or collective agreements. Otherwise, there will be no chance of taking the corresponding expenses into account when calculating income tax.
Secondly, you need to decide in advance how food will be organized for workers. The main question here is whether it will be possible to personalize the “in kind” income of each employee. If the answer to this question is positive, then the organization includes the corresponding costs in labor costs, and the cost of lunches in the personal income tax base. Otherwise, workers will have to be “fed” at the expense of net profit, but personal income tax will not have to be calculated, withheld and paid to the budget.
It must be said that in judicial practice there are decisions in which the position of the regulatory authorities is not supported. The judges come to the conclusion that the right of an organization to recognize as expenses the cost of food for employees does not depend on whether it is possible or impossible to determine the actual income of each employee (see, for example, the resolution of the Federal Antimonopoly Service of the Moscow District dated April 6, 2012 in case No. A40 -65744/11-90-285, etc.). Nevertheless, in order to reduce the risk of claims from tax authorities, it is still advisable to at least take into account the position of the regulatory authorities.

"Personalized" VAT

If we talk about the tax consequences that arise when providing employees with free food, then we cannot fail to mention VAT. The fact is that the object of VAT is the sale of goods (works/services) on the territory of the Russian Federation (clause 1 of Article 146 of the Tax Code). Moreover, for the purpose of applying the provisions of Chapter 21 of the Code, the transfer of ownership of goods, results of work performed, and the provision of services free of charge is recognized as the sale of goods (work, services). Accordingly, based on this norm, we can conclude that the cost of free meals for employees should be included in the VAT base, and “input” VAT on such goods can be deducted in the general manner (see, for example, the letter of the Ministry of Finance dated February 11, 2014 N 03-04-05/5487).
At the same time, in a letter dated March 6, 2015 N 03-07-11/12142, representatives of the Ministry of Finance noted that if food is organized according to the buffet principle, that is, if it is impossible to understand who ate what and in what volume, then it is also unclear to whom, in fact, the ownership of the eaten goods passed. Therefore, the object of VAT taxation does not arise in such situations. As a result, the organization will not have the right to deduct “input” VAT on such goods (see also letter of the Ministry of Finance dated August 25, 2016 N 03-07-11/49599).