General practice of interpreting the law, which is not considered to be a binding assessment of the Estonian Tax and Customs Board regarding the taxation of a particular taxpayer's particular transaction.
Tax liability also arises in the case of ostensible provision of services between companies in order to evade or pay less labour taxes.
The Supreme Court made three important judgements (the decisions 3-2-1-82-14, 3-3-1-25-15, 3-3-1-12-15), which support the Estonian Tax and Customs Board’s (tax authority) approach to the taxation of ostensible transactions. The mentioned judgements concern tax evasion relating to labour taxes, where the employee as a natural person had his/her remuneration transferred into the bank account of his/her company (the private limited company of a sole shareholder and a member of the management board). The employer did not have to pay labour taxes on the transfer of money as the employer and employee, instead of concluding an employment contract, had entered into a contract for the supply of services between companies. In such a way the employee increased the amount of money placed at the disposal of his/her company by the sum of labour taxes.
There have been similar cases where the companies related to the members of management or supervisory board, which had entered into contracts for the supply of management and consultation services, did not actually render the mentioned services, but instead, these services were rendered by the members of management and supervisory board as natural persons, while the remuneration was transferred into the bank accounts of their companies.
The main purpose for such a scheme is evading labour taxes and increasing financial resources at the disposal of an employee, i.e. the motive is financial gain.
For example, according to the employment contract the chief executive’s gross wages are 3500 euros and the monthly net salary 2730 euros, so the total cost for the employer including taxes and payments is 4683 euros per month. If instead of the employment contract a contract for the supply of services is concluded, it will be possible to transfer the total sum of 4683 euros to the company of the chief executive (again the private limited company of a sole shareholder and a member of the management board) without paying taxes. In this way the tax liability can be postponed, which gives the chief manager an opportunity to use the money in his/her company at his/her discretion: either partly paying wages, paying dividends or spending it for other expenditures (e.g. car leasing etc.). However, labour taxes remain uncharged on the amount of 4683 euros which was transferred to the company for the provided services.
The Supreme Court confirmed that in such cases the tax authority is entitled to intervene and tax the transactions, taking into account their actual economic content.
Therefore, the tax authority draws attention to the fact that for tax purposes it is not enough that a concluded contract formally complies with the requirements of the applicable law, the actual content of the work must correspond to the contract as well. If an employee performs his/her professional duties, it is necessary to conclude an employment contract; if a member of management or supervisory board performs his/her functions, it is necessary to conclude a management board member contract or supervisory board member contract. The compliance of a contract with the actual content of the work done or service provided ensures the uniform taxation of all persons and enhances fair competition.
The tax authority expects the undertakings that have used such a scheme to improve their further tax performance following the decisions of the Supreme Court. For the purposes of making corrections and harmonizing relating practices the following frequently asked questions are provided below.
Questions and answers
Employment relationship is regulated by the Employment Contracts Act, which defines an employment contract as follows (section 1 of the Employment Contracts Act): on the basis of an employment contract a natural person (employee) does work for another person (employer) in subordination to the management and control of the employer. The employer pays to the employee remuneration for such work.
In other words an employment contract is an agreement between an employee as a natural person and an employer, on the basis of which:
the employee undertakes to work in subordination to the management and control of the employer, and
the employer undertakes to pay the employee remuneration and to ensure the working conditions provided for by the employment contract, collective agreement or law.
Verifying the correspondence between the legal relationship and employment relationship the courts have relied on the following:
- who organises and manages the working process pursuant to the agreement
- who determines the time, place and method of work
- who pays for the work equipment
- who takes the work-related risks
- who gets the income or profit
- whether the person doing the work is a member of the staff
- whether he/she is in subordination to the management and control of the employer
All these criteria should be regarded and treated as a whole. When determining whether the relationship is an employment relationship, it is necessary to consider the relation of dependency between the employee and the employer: to what extent the employee is under the authority of the employer, in other words, how independent is the employee from the employer. The extent of dependency relationship between the employee and employer is the most important indicator that differentiates an employment contract from other civil law contracts. (RKTK 3-2-1-3-05)
Authorisation agreements and contracts for services are contracts for the supply of services regulated by the Law of Obligations Act. By an authorisation agreement, one person (the mandatary) undertakes to provide services to another person (the mandator) pursuant to an agreement (to perform the mandate) and the mandator undertakes to pay remuneration to the mandatary therefor if so agreed. (Law of Obligations Act, § 619)
By a contract for services, one person (the contractor) undertakes to manufacture or modify a thing or to achieve any other agreed result by providing a service (work), and the other person (the customer) undertakes to pay remuneration therefor. (Law of Obligations Act, § 635)
Unlike employees who work under the management and supervision of an employer, mandataries or contractors act independently and at their own risk. The extent of independence of a mandatary’s or contractor’s activity differentiates the work relation under authorisation agreements and contracts for services from the employment relationship.
The risks of undertakers (mandataries or contractors) as compared with employees lie in the fact that, for example, undertakers:
- have their own work equipment (fixtures, communication, office, computer)
- ensure the workflow of their business by themselves
- receive remuneration only for a high-quality work and repair mistakes at their own expense
- provide warranty for the performed works
- train and certify themselves
- take care of their accounting and staff
- cover the costs of work stoppage, e.g. if a project is stopped
- cover the costs of holiday pay and sick leave
- pay for their benefits themselves
- neither receive redundancy payments nor have any other rights of employees
Subsection 31 (3) of the General Part of the Civil Code Act regulates the internal relations of a legal person and does not constitute a provision of the tax law which forbids rendering management and consulting services falling within the tasks of a member of the management or supervisory board via a company. The Supreme Court has explained that the relationship between members of the management board and a company is a mandate-like legal relationship (the judgment in the civil matter 3-2-1-103-08, 20). Pursuant to section 622 of the Law of Obligations Act it is presumed that a mandatary shall perform the mandate in person, but a mandatary also has the right to use the assistance of third parties in performing the mandate. The fact that a member of the management board may transfer neither his/her competency nor responsibility does not forbid the use of the assistance of third parties in performing the mandate. (RKÜK 3-2-1-82-14)
In the case of the companies related to members of the management and supervisory board the ostensibility of a transaction may be reflected in the fact that the management and consulting services were not provided by the companies who had concluded the relevant agreements, but by the members of the management and supervisory board as natural persons, therefore the legal consequence of the ostensible transaction is the fact that the counterparties of the agreements have to be regarded as natural persons. (RKÜK 3-2-1-82-14)
In the case of the companies related to employees the ostensibility of a transaction is reflected in the fact that on the basis of the content of the agreement this is actually an employment contract and therefore the authorisation agreement has to be requalified into the employment contract. According to the definition of employment contract as stated in section 1 of the Employment Contracts Act only a natural person can be an employee, so the requalification of an authorisation agreement into an employment contract automatically entails the replacement of a legal person by a natural person. (RKÜK 3-2-1-82-14)
On the basis of the judgement of the Supreme Court (RKHK 3-3-1-12-15) the circumstances which enable the requalification of the contracts of management or consulting services into management board member agreements or employment contracts may be described as follows:
companies that have provided services issue invoices to the recipients of services on a monthly basis and mostly for the same amount
companies provide services only or mostly for one recipient of service in a certain period of time;
the service that is provided to the recipient of service by its members of management board on behalf of companies is the consulting of the recipient of service in the tasks that they perform as members of the management board;
the contracts for the supply of services in question have the characteristics of employment contracts.
In its judgement (RKHK 3-3-1-12-15) the Supreme Court accepted that the above circumstances make it possible to conclude that the actual content of the transaction was employment and board member relationship between the company and natural persons.
As mentioned above the Supreme Court of Estonia has held that the fact that the member of management board can transfer neither competency nor responsibility does not forbid the use of the assistance of third parties in performing the mandate. Therefore, the fact alone that a legal person renders management and consulting services cannot provide grounds for the assessment of additional tax obligations. (RKÜK 3-2-1-82-14)
Providing a management service through a company is deemed justified for example in the following cases,
if a separate holding company has been founded for the management of a group of companies, and the duties of the holding company’s staff involve the management and consulting of the members of the group;
if the members of the management or supervisory board do not work in this company on a daily basis, and the costs relating to their work are covered and the equipment needed for the performance of their functions is provided by the company that provides the service;
if a member of the management board has been appointed for a short time or he/she offers management services to a lot of companies (for example in the case of a substitution body, such as a liquidator or a trustee in bankruptcy). (RKHK 3-3-1-12-15)
On the basis of these circumstances the actual content of the transaction is the provision of management and consulting services through a company.
When providing management or consulting services or other services (e.g. acting, singing, organising events etc.) through a company it is necessary to bear in mind that a sole shareholder and member of the management board who alone provides services or is engaged in the economic activity of the company and receives remuneration for this work, has to be paid for his/her active engagement, either the fee of management board member, wages or other compensation depending on the type of work. A sole shareholder has also the right for passive proprietary income, i.e. dividends, but his/her active economic activity has to be taxed by all labour taxes.
How to distinguish and tax the remunerations of a shareholder, a member of the management board and an employee of a private limited company
The objective of this explanation is to provide a set of guidelines based on cases of payment of salary and dividends, existing in practice, in order to distinguish between active and passive income, and to ensure equal treatment of all taxpayers when taxing employment income with social tax and contributions.
- There are cases in practice where a company's sole shareholder, management board member and employee (in one and the same person) contributes to the business of the company, including: provides services and/or sells goods. However, the company does not pay him or her salary taxable with social tax or payments or pays it at the minimum wage rate even though their contribution and the scope of the company's business assume a significantly higher salary. The low salary is compensated with a one-time or regular, often even monthly dividend payment, which, unlike employment income, is not subject to social tax or payments.
- There have been situations where such company has no other employees, as well as situations where the company has some salaried employees other than the management board member but the management board member who is a sole shareholder, actively contributing to the company's business, receives significantly lower employment income than other employees because unlike the others he or she also receives dividend income.
- Unfortunately, there are also a number of cases where an employee, sole shareholder and management board member(in one and the same person) does not receive salary payouts from the company but the company nevertheless declares and pays social tax on the monthly rate (500 euros per month in 2019) as if he or she were an employee to provide with health insurance.
- There are also cases where a person is employed at another employer and being paid market rate salary there or a person is a pensioner who receives a pension while also actively contributing to his or her company's business. As the person has health insurance from employment at the other employer or from the state as a pensioner, he or she considers it unnecessary to pay himself or herself a salary from his or her company and thereby affords his or her company an unjustified competitive advantage over other similar companies.
The purpose of collecting social tax is to receive income for providing state pension insurance and health insurance. Social security functions on the principle of solidarity – social tax is paid on employment income and received funds are used for pensions and medical expenses. A person whose employment income was subject to social tax gets a benefit in exchange in case of an insured event (for example, disease, reaching pension age). When employment income is replaced by dividends, the social tax expense is saved, however social benefits are consumed at the expense of other taxpayers. The tax authority is of the opinion that this is neither justified nor fair to other taxpayers who pay social tax and contributions on salaries according to market conditions.
If a person earns monthly gross minimum wage of 540 euros, the employer's payroll expense is 722.52 euros (social tax 178.20 euros, employer's unemployment insurance premium of 4.32 euros). If the person further earns a monthly dividend for employment of, for example, 1,000 euros, the company's income tax expense on dividends amounts to 250 euros. A shareholder is entitled to dividends but dividend must not replace salary.
However, if a person were to receive a proper employment income on market conditions and according to actual contribution in the amount of 1500 euros, the employer's payroll expense would amount to 2007 euros (social tax 495 euros, employer's unemployment insurance premium of 12 euros). Comparing the expenses makes it clear that a dividend payment results in a monetary gain via tax savings but payment of dividends instead of employment income is not right.
In order to ensure uniform taxation of everyone's employment contribution and fair competition, it is important to keep in mind that for active engagement such as performance of official or work duties, corresponding management board member remuneration, employment income, service fees or other remuneration has to be paid depending on its type. Shareholders are also entitled to passive ownership income (dividends) but employment income received for employment activities have to be subject to all labour taxes.
For taxation purposes, a distinction has to be made between:
- employment income (incl. management board member remuneration and employment income)
- fringe benefits
We will examine them closely below.
Contracts entered into in economic or professional activities are presumed to have a price (subsection 28 (1) of the Law of Obligations Act). Based on the above, unless otherwise agreed by parties, a management board member of a company can expect to have the right to remuneration for management of the company *.
Subsection 28 (2) of the Law of Obligations Act provides that where a contract does not determine the price or a method for determining the price and the nature of the contract or other circumstances do not dictate the price or the method of determining the price, the price to be paid shall be the price generally charged at the time of entry into the contract at the place of performance of the contract for the performance of such contractual obligations or, if no such price can be determined, a price reasonable under the circumstances.
Upon establishing the procedure for remuneration of the members of the management board and the amount of fees and other benefits, and entry into contracts with the members of the management board, the shareholders or the supervisory board shall ensure that the total amount of the payments made by the private limited company to the members of the management board are in reasonable proportion to the duties of the members of the management board and the economic situation of the private limited company (subsection 1801 (2) of the Commercial Code).
The payment of salaries and other benefits is regulated by sections 29–41 of the Employment Contracts Act. Salaries are subject to income tax and social tax and, in most cases, also unemployment insurance premiums and funded pension contributions.
The tax authority also assumes for salaries under an employment contract that the customary salary for performance of duties as per the contract has to be paid, or in the absence thereof, a reasonable salary according to circumstances. A customary salary may be a salary commonly paid for performance of duties similar to those specified in a specific employee's employment contract or a customary regional salary for performance of such duties.
We recommend using public data sources for determining the customary salaries paid in various industries. For example, we publish on our web page "Business statistics by local authorities" (in Estonian) various business statistics that we update monthly. Publication of statistics gives employers an opportunity to compare salaries, revenue, number of employees, etc. with companies of the same industry across local governments and counties or nationally and helps to ensure fair competition and improves Estonian business transparency.
The statistics are based on data declared to the Estonian Tax and Customs Board.
Information on commonly paid salaries may also be found from the web page of Statistics Estonia regarding information on average salary, which the Statistics Estonia collects, analyses and regularly publishes.
Non-monetary employment-related benefits granted to management board members or employees, which have a monetary value for the employee, have to be deemed and taxed as fringe benefits. The price of a fringe benefit is the common value of a benefit granted to an employee, defined in section 65 of the General Part of the Civil Code Act as the usual value of an object or average local selling price (market price).
Fringe benefits are also subject to income tax and social tax.
A shareholder is entitled to dividends but the dividend may not replace salary. Management board members and employees have to receive management board member remuneration or salaries for their employment-related work. If a management board member receives remuneration and/or an employee receives salary duly corresponding to the management board member’s duties or employee’s duties and the company's financial condition, the shareholder is entitled to as much in dividends as the company’s profit allows.
Dividends or salary?
Tallinn Circuit Court made a decision on 4 March 2009 (decision 3-08-364 concerning OÜ Wasp Project) ) over a dispute on the principle as to how large is a company's discretion over the nature of distributions in a situation where a single natural person is the company's shareholder, manager and employee.
The Circuit Court determined that companies have to be treated equally on tax liabilities. Granting tax advantages to companies, where employee-shareholders are paid salaries in amounts significantly below the labour market rates for such jobs, is undue. Dividends may be deemed salary income if a management board member is not paid remuneration or an employee is not paid salary under employment contract at all or these are paid in very small amounts. Payment of dividends to shareholders is completely legal. However, in cases where a shareholder participates actively in the substantive business of a company and this results in corporate profits, the result of paying unduly low salaries for such work is aimed at reducing tax liabilities and leads to questions as to the applicability of section 84 of the Taxation Act.
Section 84 of the Taxation Act provides that if it is evident from the content of a transaction or act that the transaction or act is performed for the purposes of tax evasion, conditions that correspond to the actual economic content of the transaction or act apply upon taxation.
The purpose of the economic substance identification as contained in section 84 of the Taxation Act is to avoid a situation where tax liabilities arise merely based on the legal form that transaction counterparties assign to the transaction. The condition for leaving aside the legal form of a transaction for taxation purposes is that parties have selected a legal form inappropriate to the economic substance of a transaction for purposes of tax evasion, thereby achieving the same economic result but more favourable taxes.**
The Circuit Court determined that the size of tax liabilities have to be predictable. A company has to have a point of reference to use for evaluation of how much the salary of an employee who is a shareholder should be for the tax authority to accept it. The tax authority cannot obligate all companies, despite the salary flexibility of the labour market, to pay at least the average salary to shareholders. There is no reasonable explanation for why the salary of an employee who is a shareholder has always to be such a fixed value if a below-average salary paid for the same work on the labour market is competitive.
Therefore, a shareholder does not always have to receive a salary calculated based on the average rate or at a fixed rate because salaries are dependent upon industry and region, as well as a specific company's financial condition, a person's job or duties, experience, skills, education or other circumstances.
The statistics published on the websites of the Estonian Tax and Customs Board and Statistics Estonia are a point of reference to help estimate whether the salary assigned to a shareholder by a company approximates the average salary paid in the same industry and region. However, significantly lower salaries have to be justified.
If shareholder(s) are concurrently in a management board member's and/or employee's role, the salary is at or approximates the commonly paid level in its industry, the tax authority does not see any tax risk and sees no reason to reclassify dividends to salary. However, if a sole shareholder or shareholders receive significantly lower salaries compared to the level commonly paid in their industry and distribute company profits as dividends, it entails a tax risk that requires detailed analysis as to whether payment of a significantly lower salary or minimum wage is justified or not. If it is determined that a paid dividend has replaced salary, the tax authority has a basis for reclassification of dividend income to salary and applying social tax and payments.***
Reclassification also has to take into account the potential period selection issue. If dividends are paid infrequently or as a one-off, there may be a need to determine which period's unpaid salary the dividend replaced. If dividends are paid frequently or, for example, monthly, the view is likely to be that with high probability such dividend replaces the same period's unpaid salary.
In situations where it is difficult to separate a person's job contribution at various related companies (for example, for groups of companies it is difficult to separate contribution in parent or subsidiary businesses), it is important that a person receives market-rate salary from at least one company (for example, a parent company).
* Even if a management board member who is an owner representing both sides has decided not to pay the management board member's remuneration, in accordance with the law, it must be taken into account that this decision may be based on a desire to replace active work salary with dividends and this is unacceptable under tax law.
** Tallinn Circuit Court decision 3-08-364
*** For similar reasons, considering the amount of all disbursements and expenses, the tax authority has basis for reclassification of non-business related expenses and distributions made by natural persons from company assets to fringe benefits.
Examples of cases
An individual is employed full-time at his/her own or a third party's company A as an employee or management board member. He/she receives the market-rate salary in Estonia, which is declared and taxed as salary. At the same time, he/she is a sole shareholder and management board member in company B, where he/she invests in shares, rents two apartments, etc. Personal expenses are not charged to the company, the employer owns no vehicles. The company distributes dividends annually in case of profits that may be a comparable amount to an annual salary.
Regardless of the fact that a person receives a reasonable salary from full-time employment, his/her employment contribution to their company B must also be evaluated. It is understandable that a day contains 24 hours and if a person is employed full-time at his/her main job, he/she cannot contribute to company B at the same rate. Moreover, holding securities or renting out real estate may not even need day-to-day involvement. Nevertheless, a specific person's employment contribution has to be estimated using as comparison the salary at which the person would agree to perform the same job or service to an unrelated third party. This may not always be full-time or part-time employment but may also be performing services under the Law of Obligations. Even in the specific case the person may perform services to his/her own company concurrently with his/her main job and be reasonably remunerated for it (it may be several times less than their full-time pay), taxed as salary including all taxes on labour and the remainder of profits may be distributed as dividends. However, in the stated example it has to be noted that the stated activities of company B are such where a private individual normally is not subject to social tax (gains on sale of property, rent). As such types of income are not salary from active activity, this will likely not prompt a salary versus dividend type of situation and reclassification will be unnecessary.
A person is a sole shareholder and management board member at companies A, B and C, all engaged in similar businesses. As the person acts as a general manager in companies B and C, he/she receives a proper salary from such companies corresponding to the scope of duties, also taxed as the salary. The benefits granted to the person are taxed as fringe benefits. However, the person is not paid a salary from company A because he/she is not employed there, but he/she does receive dividends.
As the person's related companies are engaged in the same or similar businesses and the person's day-to-day contributions cannot be split between different companies, it is important that the person receives the reasonable salary for employment at companies B and C, taxed with all labour taxes as the salary. If a person is not active in company A, there is no reason to reclassify the dividend of that company as the salary.
The same answer will apply to a situation where a person is a sole shareholder in company A and its subsidiaries are B and C.
A person is a sole shareholder and management board member in company A. Company A owns subsidiaries B and C, which pay management fees to company A. Management services are performed day-to-day by the same natural person. The person is not on the management board of companies B and C. The person is employed in company A and receives salary corresponding to local conditions and work contribution and also regularly receives dividends in excess of annual salary.
If a person's salary corresponds to his/her work contribution and the person would have also worked at companies B and C or unrelated companies at the same pay, no reclassification is necessary. The person may receive dividends in excess of his/her salary but it is important that the salary was fair or reasonable and salary is not paid in the form of dividends.
A natural person is a pensioner and management board member and owner at company A. Due to his/her pensioner status he/she havs health insurance from the state and therefore finds it unnecessary to pay himself/herself a salary. The company's revenue is attributable to the person's active business contribution. The person sometimes pays dividends from accumulated profits.
The natural person's health insurance status is not relevant to decide whether the company engages in replacement of salary with dividends or not. If a person does not receive a reasonable salary from his/her employer that he/she would likely request if he/she worked for an unrelated company, there would very likely be a need to reclassify received dividends to salary subject to social tax and payments.
A natural person is a builder and a full-time employee at a company not owned by him/her and he/she is also a management board member and the owner in another company that he/she uses to provide building services at nights, weekends and on holidays. As the natural person receives the market rate salary from his/her main job, he/she has decided not to pay himself/herself a salary from his/her company and sometimes allocates dividends to himself/herself from accumulated profits.
The natural person's adequate income from elsewhere is not relevant to decide whether income from his/her company are dividends or the salary. Instead, the decision has to be made based on whether income is from active work and whether a market-rate salary is assigned and paid for active work. At the same time, we highlight that salary on the side does not have to correspond to the average monthly salary of the same industry or region because he/she is not employed full-time but only in evenings, weekends and holidays.
Last updated: 10.11.2021