Does a lawyer have to pay unified social tax in the absence of income – SC

A person engaged in independent professional activity, in particular, lawyer's activity, is obliged to pay the unified social contribution not lower than the minimum amount regardless of the actual income received only if such person is not an employee.

This was emphasized by the Administrative Court of Cassation, upholding the decisions of the courts of previous instances in case No. 480/4744/18, Law and Business reports.

In this case, the plaintiff filed a lawsuit against the Main Department of the SFS in Sumy region, in which she asked to declare unlawful and cancel the demand for payment of the debt (arrears), to recognize as unlawful the imposition of obligations on her to pay a single social contribution as a self-employed person. She motivated her claims by the fact that she works as the head of the legal department of Sumska Palianytsia LLC and at the same time has the right to practice law, is registered with the income and taxes authorities as a single contribution payer, but does not practice law as a self-employed person and does not receive any income.

The first instance and appellate courts partially satisfied the claim.

In its turn, the Administrative Court of Cassation stated that the analysis of the provisions of the Law «On Collection and Accounting of the Single Contribution for Obligatory State Social Insurance» shows that the payers of the single social contribution are self-employed persons, in particular, lawyers who carry out advocacy as an independent professional activity. The necessary conditions for a person to pay a single contribution to the obligatory state social insurance are that such person, in particular, carries out advocacy as an independent professional activity and receives income from such activity, which is the basis for the calculation of the single social contribution.

Therefore, it is the person's income from such activities that is the basis for the calculation, but under any circumstances, the amount of the single social contribution cannot be less than the minimum insurance premium for the month. At the same time, in the absence of a base for the calculation of the unified social tax in the relevant reporting quarter or a separate month of the reporting quarter, the law establishes the obligation of the person to determine this base independently, but its amount cannot be less than the minimum wage.

The purpose of establishing the amount of the minimum insurance contribution and the obligation to pay it regardless of the existence of a basis for accrual is to ensure, in cases provided for by law, a minimum level of social protection of individuals by receiving insurance payments (services) under the existing types of compulsory state social insurance.

Thus, the ACC stated that a person engaged in independent professional activities, in particular, advocacy, is considered self-employed and is obliged to pay the unified social contribution not lower than the minimum insurance premium regardless of the actual income received only if such person is not an employee. Otherwise (if the person is an employee), such person is insured and the payer of the single contribution is his or her employer, and the purpose of collecting the single contribution for obligatory state social insurance is achieved by paying it by the employer in the amount not less than the minimum.