In accordance with Art. 222 of the Labor Code of the Russian Federation, in jobs with hazardous working conditions, milk or other equivalent food products are provided free of charge.

Note. A harmful production factor is one whose impact on an employee can lead to illness (Article 209 of the Labor Code of the Russian Federation).

Resolution No. 168 establishes general order determining the norms and conditions for the free issuance of therapeutic and prophylactic nutrition, milk or other equivalent food products and making a compensation payment in an amount equivalent to the cost of milk or other equivalent food products in accordance with Part 3 of Art. 222 Labor Code of the Russian Federation. According to para. 3 clause 1 of Resolution No. 168, workers engaged in work with hazardous working conditions are given free milk or other equivalent food products in accordance with the list of harmful production factors, under the influence of which it is recommended to consume milk or other equivalent food products for preventive purposes.

Order No. 45n approved the Norms and conditions for the free distribution of milk, as well as the Procedure for making compensation payments.

Employees working in hazardous conditions are entitled to 0.5 liters of milk per shift, regardless of its duration, in accordance with clause 4 of the Norms and Conditions for the Distribution of Milk (Appendix 1 to Order No. 45n). If the time spent working in hazardous working conditions is less than the established duration of a work shift, milk is provided when work is performed in the specified conditions for at least half of the work shift.

In the case of free milk distribution to employees engaged in work with hazardous working conditions, the institution must incur expenses and purchase the appropriate food products. Such purchases using subsidies for the implementation of state (municipal) tasks are carried out in accordance with the requirements established by the Law on the Contract System (Clause 7, Article 3 of this Law).

Note. Responsibility for ensuring the free provision of milk and equivalent food products to employees, as well as for compliance with the rules and conditions for their distribution rests with the employer.

Costs for the purchase of milk for free distribution to employees engaged in work with hazardous working conditions are included in Article 340 “Increase in the cost of inventories” of the KOSGU in accordance with the Instructions on the procedure for applying the budget classification of the Russian Federation. In accounting, its receipt is reflected in the debit of account 0 105 32 340 “Increase in the cost of food products - other movable property of the institution” (clause 34 of Instruction No. 174n).

The write-off of milk upon dispensing is documented in the dispensing sheet material assets for the needs of the institution (f. 0504210) and is reflected in account 0 109 60 272 “Costs of spending material reserves in cost finished products, works, services" (paragraph 2, clause 37 of Instruction No. 174n).

Using subsidies for implementation municipal task budgetary institution purchases milk in the amount of 2,000 rubles. for free distribution in the canteen of the institution to employees engaged in work with hazardous working conditions.

In the accounting records of a budgetary institution, the purchase and distribution of milk to employees will be reflected as follows:

In accordance with Art. 222 of the Labor Code of the Russian Federation, the provision of milk or other equivalent food products to employees according to established standards can be replaced, upon a written application from employees, with a compensation payment in an amount equivalent to the cost of milk or other equivalent food products, if this is provided for by a collective agreement and (or) an employment contract. This possibility is provided for in clause 2 of Resolution No. 168, as well as clause 10 of the Norms and Conditions for the Issue of Milk.

The size of the compensation payment is accepted as equivalent to the cost of milk with a fat content of at least 2.5% in retail trade at the employer’s location on the territory of an administrative unit of a constituent entity of the Russian Federation. Compensation payments are made at least once a month in accordance with clauses 2, 3 of the Procedure for making compensation payments (Appendix 2 to Order No. 45n). The specific amount of compensation payment and the procedure for its indexation are established by the employer in agreement with the representative body of employees and are included in the collective or labor agreement (clause 4 of the Procedure for making compensation payments).

In this case, the institution makes payments in cash, replacing the free supply of milk. These payments relate to compensation, which are determined by the conditions of the labor relationship. Consequently, the costs of paying them are included in subarticle 212 “Other payments” of KOSGU, calculations are made on account 0 302 12 000 “Settlements for other payments” (clauses 254, 256 of Instruction No. 157n, clause 127 of Instruction No. 174n).

Expenses for payment of compensation equivalent to the cost of issuing free milk are reflected in account 0 109 60 212 “Costs for other payments in the cost of finished products, works, services” (paragraph 2, clause 128 of Instruction No. 174n).

Note. The compensation payment was established in order to reimburse employees for the costs of their own purchase of milk for prevention. negative impact harmful working conditions.

At the written request of the employee, the distribution of milk was replaced by payment of monetary compensation. The costs of paying compensation are covered by a subsidy for the implementation of the municipal task. In one month, the employee worked 10 shifts in hazardous working conditions. The cost of 1 liter of milk with a fat content of 2.5% is 40 rubles. according to statistical data in the conditional territorial formation of a constituent entity of the Russian Federation.

Based on the conditions of our example, the amount of compensation payment is 200 rubles. (40 rubles x 0.5 l x 10 shifts).

In the accounting of a budgetary institution, compensation paid to employees engaged in work with hazardous working conditions from the cash desk of a budgetary institution in exchange for the provision of milk will be reflected as follows:

The cost of milk for employees engaged in work with hazardous working conditions, and the amount of compensation payments in an amount equivalent to the cost of milk, within the limits established by the legislation of the Russian Federation:

— are not subject to personal income tax (clause 3 of article 217 of the Tax Code of the Russian Federation);

— not subject to insurance premiums (clause “and” clause 2, part 1, article 9 Federal Law N 212-FZ, paragraphs. 2 p. 1 art. 20.2 of Federal Law N 125-FZ): for compulsory pension insurance, for compulsory social insurance in case of temporary disability and in connection with maternity, for compulsory medical insurance, for compulsory social insurance against industrial accidents and occupational diseases.

Give an example of an explanation of how to reflect in accounting the operations of dispensing milk and compensation equivalent to dispensing milk to employees working in hazardous working conditions, which a budgetary institution makes on the basis of Art. 222 of the Labor Code of the Russian Federation?

How to reflect in accounting and tax accounting the amount of monetary compensation instead of issuing milk to a plumber working in hazardous working conditions according to workplace certification?

payment of monetary compensation in exchange for free food to employees who work in hazardous conditions is reflected by the following entries:

Debit 20 (23, 25, 29) Credit 70 – compensation has been accrued in exchange for free food;

Debit 70 Credit 50 (51) – compensation was paid in exchange for free food.

Personal income tax is not withheld from amounts of monetary compensation in exchange for food provided by law and within established standards and insurance premiums are not charged.

Cash compensation paid in exchange for milk can be taken into account when calculating income tax as part of labor costs.

The rationale for this position is given below in the materials of the Glavbukh System

Who is eligible for mandatory free meals?

Mandatory free meals are provided only for certain categories of personnel:

Employees who work in hazardous conditions are entitled to milk or other equivalent products. Employees working in particularly hazardous conditions must be provided with therapeutic and preventive nutrition. This is enshrined in Article 222 of the Labor Code of the Russian Federation. In some cases, the organization can purchase therapeutic and preventive nutrition.

The assessment of dangerous and harmful production factors by the nature of the work performed and working conditions is carried out on the basis of data obtained from the results of:

In the process of special assessment of working conditions (job certification), the degree of harmfulness of working environment factors is established on the basis of certain standards. For example, those given in Guide R 2.2.2006-05 “Guide to the hygienic assessment of factors in the working environment and the labor process. Criteria and classification of working conditions”, approved by Rospotrebnadzor on July 29, 2005. In accordance with these criteria, if the concentration of harmful substances does not exceed their maximum permissible concentration (MPC), then the working conditions are not recognized as harmful or dangerous (they are considered acceptable). The results of a special assessment of working conditions (workplace certification) will confirm the presence of harmful production factors in the employee’s work (clause 3 of the Procedure approved by Order of the Ministry of Health and Social Development of Russia dated April 26, 2011 No. 342n, clause 2 of Article 7 of the Law of December 28, 2013. No. 426-FZ).

Athletes participating in educational, training and sports events are also provided with meals (Clause 1, Article 33 of the Law of December 4, 2007 No. 329-FZ). In addition, an employment (collective) agreement or other local act of the organization may provide for additional guarantees and compensation for athletes, in particular payment for meals (Article 348.10 of the Labor Code of the Russian Federation). In the first case, compensation to athletes can be regarded as established by law. In the second - as compensation established at the initiative of the organization.

Free food standards

The composition and quantity of free food are standardized. The rules and conditions for the free distribution of milk (other equivalent products) to employees engaged in work with hazardous conditions have been approved. For example, the milk supply rate is 0.5 liters per shift. Moreover, if the duration of work in hazardous conditions is less than half of an employee’s work shift, the employer is not obliged to provide him with milk. This procedure follows from the provisions of paragraph 4 of the norms and conditions approved by order of the Ministry of Health and Social Development of Russia dated February 16, 2009 No. 45n.

Employees who come into contact with inorganic compounds of non-ferrous metals (except for compounds of aluminum, calcium and magnesium) are given 2 g of pectin in addition to milk as part of food products enriched with it: drinks, jellies, jams, marmalades, juice products from fruits and (or) vegetables and canned food (the actual pectin content is indicated by the manufacturer). It is allowed to replace these products with natural fruit and (or) vegetable juices with pulp in an amount of 300 ml.

With constant contact with inorganic compounds of non-ferrous metals (except for compounds of aluminum, calcium and magnesium), instead of milk, fermented milk products or products for dietary (therapeutic and preventive) nutrition under hazardous working conditions.

The distribution of pectin-enriched food products, drinks, jellies, jams, marmalades, juice products from fruits and (or) vegetables and canned food must be organized before starting work, and fermented milk products - during the working day.

Employees involved in the production or processing of antibiotics are given fermented milk products enriched with probiotics (bifidobacteria, lactic acid bacteria) or colibacterin prepared from whole milk instead of fresh milk.

This procedure follows from the points and Standards and conditions approved by order of the Ministry of Health and Social Development of Russia dated February 16, 2009 No. 45n.

What is a violation when issuing

Organizations that are required to provide employees with free milk are prohibited from:

replace milk dispensing with sour cream, butter, other products (except for those provided for by the standards for the free distribution of equivalent products that can be given to employees instead of milk);
dispense milk (other equivalent products) one or more shifts in advance;
issue milk (other equivalent products) for past shifts;
provide milk to employees who are entitled to therapeutic and preventive nutrition.

This procedure is provided for in paragraphs and Standards and conditions approved by order of the Ministry of Health and Social Development of Russia dated February 16, 2009 No. 45n.

Compensation for milk dispensing

The provision of milk (other equivalent products) can be replaced by monetary compensation upon a written application from the employee (Part 1 of Article 222 of the Labor Code of the Russian Federation, Clause 10 of the Norms and Conditions approved by Order of the Ministry of Health and Social Development of Russia dated February 16, 2009 No. 45n). This possibility must be provided for in the labor (collective) agreement. This is stated in Part 1 of Article 222 of the Labor Code of the Russian Federation. The conditions for the provision and the amount of compensation payments are determined in accordance with the Procedure approved by order of the Ministry of Health and Social Development of Russia dated February 16, 2009 No. 45n.

Calculate the amount of compensation in exchange for milk based on the cost of milk with a fat content of at least 2.5 percent. For employees who receive equivalent food products instead of milk, set the amount of compensation payment based on the cost of equivalent food products.

Determine the cost of milk (other equivalent products) based on the price level of products in retail trade in the area where the organization is located.

Specify the specific amount of compensation in the collective agreement after agreement with the trade union (representative body of employees). If there is no trade union in the organization ( representative body employees) indicate the amount of compensation in employment contracts.

Pay compensation at least once a month. It needs to be indexed in proportion to the increase in prices for milk (other equivalent products).

Accounting

Accounting for the costs of purchasing free food depends on the sources from which they were paid:

at the expense of the organization;
through contributions for insurance against accidents and occupational diseases ().

If employees are provided with free meals at the expense of the organization, make the following entries in accounting.

Reflect the issuance of free meals to employees by posting:

– reflects the cost of free meals intended for distribution to employees (athletes);

Debit 70 Credit 10
– free meals were provided to employees (athletes).

Reflect the payment of monetary compensation in exchange for free food to employees who work in hazardous conditions with the following entries:*

Debit 20 (23, 25, 29) Credit 70
– compensation was awarded in exchange for free food;

Debit 70 Credit 50 (51)
– compensation was paid in exchange for free food.

If an organization issues food stamps in its own canteen, make the following entries:

Debit 20 Credit 10 (60, 76…)

Debit 006
– manufactured (purchased) food coupons are recorded on the off-balance sheet account (if coupons are accounted for as BSO);

Credit 006
– issued food stamps are written off from the off-balance account;

Debit 20 Credit 70
– the cost of food is written off as expenses;

Debit 70 Credit 90-1
– the revenue of the own canteen for the sale of food is reflected;

Debit 29 Credit 10
– the cost of food preparation is written off.

If the organization issues food stamps provided by a third party, make the following entries:

Debit 20 Credit 10 (60, 76…)
– the costs of producing coupons are reflected;

Debit 006
– food stamps are included in the off-balance sheet account;

Credit 006
– issued coupons are written off from the off-balance sheet account;

Debit 20 Credit 70
– the cost of free food is reflected;

Debit 41 Credit 60
– products were received from a third party providing food;

Debit 19 Credit 60
– input VAT is reflected;

Debit 68 subaccount “VAT calculations” Credit 19
– submitted for VAT deduction;

Debit 60 Credit 51
– products have been paid for;

Debit 70 Credit 41
– the cost of food provided to employees is written off.

This procedure follows from the Instructions for the chart of accounts (accounts , , , ).

Personal income tax and insurance premiums

Regardless of the taxation system applied, do not charge the cost of free food (the amount of monetary compensation in exchange for food) provided by law and within the established standards to employees who work in hazardous conditions:*

Personal income tax (clause 3 of article 217 of the Tax Code of the Russian Federation, letters of the Federal Tax Service of Russia dated February 14, 2012 No. ED-3-3/433, dated October 8, 2010 No. YAK-37-3/12943, dated April 28, 2009 No. 3-2-06/47);
contributions for compulsory pension (social, medical) insurance (clause 2, part 1, article 9 of Law dated July 24, 2009 No. 212-FZ, letter of the Ministry of Health and Social Development of Russia dated August 5, 2010 No. 2519-19);
contributions for insurance against accidents and occupational diseases (clause 2, part 1, article 20.2 of the Law of July 24, 1998 No. 125-FZ).

At the same time, harmful working conditions at specific workplaces must be confirmed by the results of their special assessment (certification of workplaces) (letter of the Ministry of Finance of Russia dated August 1, 2007 No. 03-03-06/4/104, dated June 18, 2007 No. 03 -04-06-01/192).

BASIC: income tax

Reflection of expenses for the purchase of free food when calculating income tax depends on the sources from which they were paid:

at the expense of the organization;
through contributions for insurance against accidents and occupational diseases (in terms of therapeutic and preventive nutrition).

If employees are provided with free food at the expense of the organization (including through coupons), then when calculating income tax, include the cost of food provided to employees working in hazardous working conditions as part of labor costs (clause 4 of Art. 255 Tax Code of the Russian Federation). Moreover, if an organization issues food using coupons, then expenses should take into account only the cost of food based on actually used coupons. The costs of producing (purchasing) coupons should be included as part of material or other expenses.

The cost of food can only be taken into account within the limits provided by law. At the same time, the danger and harmfulness of production factors due to the nature of the work performed and working conditions must be confirmed by the results:

If an organization pays monetary compensation in exchange for milk (other equivalent products), it also has the right to take this amount into account when calculating income tax as part of labor costs* (clause 4 of article 255 of the Tax Code of the Russian Federation, part 1 of article 222 of the Labor Code of the Russian Federation, letter of the Federal Tax Service of Russia dated April 28, 2009 No. 3-2-06/47).

The cost of free meals for employees working in jobs that are not recognized as hazardous also reduces the tax base for income tax. But provided that the costs of free meals for employees are provided for in the labor (collective) agreement. In this case, they can be taken into account as part of labor costs as payments in kind, even if they are not confirmed by a special assessment of working conditions or certification of workplaces. This conclusion follows from Article 255 Tax Code RF and is confirmed in the letter of the Ministry of Finance of Russia dated March 31, 2014 No. 03-03-RZ/13985.

BASIS: VAT

If you have an invoice, accept the amount of VAT presented by the suppliers of free food for deduction (subclause 1, clause 2, article 171 of the Tax Code of the Russian Federation).

Situation: Is it necessary to charge VAT on the cost of free meals provided to employees by law?

Yes, it is necessary. This is precisely the position taken by financial department specialists.

VAT must be charged on the cost of free meals in kind if it is provided to employees on a personalized basis. In our case, free meals are provided to employees by law. For example, each employee working in hazardous working conditions is given 0.5 liters of milk per shift free of charge (clause 4, article 1 of Appendix No. 1 to the order of the Ministry of Health and Social Development of Russia dated February 16, 2009 No. 45n). This means that food delivery is personalized. If so, then such an operation is recognized as a gratuitous transfer of goods and is subject to VAT. The tax base is market value meals without VAT.

And although the letters refer to the costs of free meals provided to employees in jobs with hazardous working conditions, the general approach to taxation of such expenses does not change. That is, this approach can be applied in all cases of providing employees with free meals according to the law. For example, when providing meals to athletes participating in educational, training and sports events (he made it clear that in these cases the tax inspectorates should not bring the matter to court. When making decisions on controversial issues, the inspectorates should be guided by officially published documents of the highest judicial authorities. Explanations The Ministry of Finance of Russia was brought to the attention of all tax authorities (letter of the Federal Tax Service of Russia dated November 26, 2013 No. GD-4-3/21097). Therefore, it should be expected that in the near future the Ministry of Finance of Russia will change its position.

Sergey Razgulin,
Actual State Councilor of the Russian Federation, 3rd class

So, in 2019, workers who know first-hand what harmful working conditions are can hope to receive milk or other products that are equivalent substitutes and included in the list of therapeutic and preventive goods for consumption. This rule must be described in the employment agreement drawn up at the time of hiring between the employer and the employee.

Generally accepted procedure for dispensing milk

The law defines the basic requirements that must be adhered to, because without them, free milk distribution is impossible:

Milk is distributed only on the actual days the employee works and only when the production process describes hazardous working conditions.
Receipt of the product is carried out exclusively in the rooms designated for this purpose - this can be a dining room, a buffet or square meters equipped with special equipment, where all sanitary and hygienic standards are met.
One worker receives no more than 0.5 liters of milk per work shift, even if it is shortened and lasts only a few hours.
Those who are forced to come into contact with compounds of non-ferrous metals are entitled to receive an additional 2 grams of pectin, contained in various drinks, jelly, jelly, jam, marmalade, free issuance is allowed natural juice, vegetable salads and preserves. The amount of pectin in each of the listed dishes should be clearly calculated; a hint will be the indication of pectin in grams on the label of the ingredient package. If the listed products are not available, you can replace them with a total of 300 ml of juice containing fruit pulp.
According to the law and doctors’ orders, pectin is given immediately before the start of a work shift, and fermented milk products are left for later and await the worker during the day.
If the employee's duties include production or processing medicines According to the type of antibiotics, it is advisable to replace fresh milk with fermented milk, which contains a sufficient amount of probiotics - bacteria and bifidobacteria. Colibacterin made from whole milk is also suitable.
You cannot give out sour cream of any fat content or butter instead of milk. It is also impossible to give milk to a worker for several past or future work shifts at once - everything is issued against signature and is strictly accountable.

Standards for free milk distribution

As we said earlier, hazardous working conditions in 2019 allow workers to claim milk every day. But there are times when there is no milk, then it can be replaced with the following equivalent products:

kefir different manufacturers, curdled milk, fermented baked milk, where the fat content is indicated within 3.5%;
Ryazhenka with 2.5% fat content is suitable for replacement - 500 grams of the product is quite enough to replace milk;
100 grams of cottage cheese with 9% fat content is enough to meet the needs of an employee who is involved in production where hazardous working conditions are registered;
60 grams of cheese up to 24% fat content are also included in the delivery;
if the trade union decides that it is necessary to issue workers with products for harmful working conditions therapeutic nutrition or for preventive purposes, the trade union must draw up a list of possible goods independently.

Rules for issuing cash equivalents

At the request of the employee, the provision of milk or other food products may be in the form of material compensation for harmful working conditions. To do this, the employee must write a corresponding statement and submit it to his superiors for signature. The cash payment provided must be the equivalent of a dairy product.

The calculations are based on the cost of a carton of milk, the calorie content of which is 2.5% fat. If the enterprise produces not milk, but another equivalent product, you should focus on the average purchase price in retail trade, which is known in this particular region.
How often is monetary compensation given for harmful working conditions? The money is summed up for 1 calendar month and, accordingly, the entire amount is provided monthly, 1 time.
Is compensation subject to indexation? Of course, the order itself is established by the authorities or the corresponding official, whose responsibilities include this point of activity. Important role What matters is what the union members think about it; their unanimous opinion is reflected in the collective agreement. If there is no trade union as such, this provision is stipulated at the time of signing the employment contract, where, in fact, the rules and regulations are prescribed.
Indexation depends on changes in prices for milk packages with 2.5% fat content. So that employees do not have to constantly run around markets and wholesale warehouses in order to find out the price fluctuations, it is enough to submit a written application to the structural unit of the executive authority of the constituent entity of the Russian Federation in your region, the answer will come literally within 1 week.

Who should receive therapeutic and preventive nutrition?

The current legislation in 2019 establishes the following categories of workers who have the right to receive therapeutic and preventive nutrition from the enterprise:

Only those who are entitled to it by law can count on such food free of charge. There is a separate bill that establishes not a list of specialties and professions, but a number of harmful working conditions, regardless of the type of economic activity and the form of ownership of employers.
In addition, therapeutic and preventive nutrition may be offered:
- employees involved in construction are involved in construction, installation and repair work. This also includes commissioning manipulations, even if they are not performed by the main workers, but by auxiliary ones;
- those who do the same work, but work on a rotation basis;
- workers involved in cleaning and ensuring the preparatory stage regarding the equipment, if in the future it is going to be repaired or “mothballed” on the site;
- if, as a result of professional activities, a worker has received a disability group, according to the law he can also be considered as an applicant for the provision of medical nutrition (in this case, this norm is valid if no more than 1 year has passed since the injury or registration of the disabled status);
- a worker who was previously transferred to another place of work due to detection of an occupational disease, if he “earned” this disease in his previous place.
If a woman received therapeutic and preventive nutrition before pregnancy, during maternity leave she retains the right to claim the same products or an amount equivalent to them.
If a pregnant employee is transferred to another place of work due to pregnancy, she is still provided with products for the purpose of prevention and maintenance of health at the proper level.

When is therapeutic and preventive nutrition provided? Exclusively at the beginning of the work shift, therefore it is presented, as a rule, in the form of hot breakfasts. If there is no such canteen, and workers carry out their activities on a rotational basis, it is possible to introduce special rotational meals into the diet.

As for workers who are forced to endure harmful working conditions associated with high pressure (for example, divers), products are distributed between them after the completion of work.

Important nuances

It is estimated that in 2019 in Russia, harmful working conditions affected 560,000 officially employed workers, of whom 35% were employed in the industrial sector, 30% were in the transport sector. Despite the fact that these people constantly receive milk, 20% of workers are forced to deal with the manifestation of an occupational disease.

An ignorant person may have a completely reasonable question: why was milk chosen as a product that acts as a kind of counteraction to harmful factors? Doctors have found that no other food product can completely replace priceless dairy products.

The great Doctor Botkin has repeatedly said that milk is the best preventive remedy for heart and kidney disorders. Milk contains optimal proportions of microelements, minerals and vitamins, which means it helps improve immunity, which is vital for workers working in hazardous industries.

All chemical compounds that accumulate in the human body bind to the components of milk, which allows the removal of toxins. In addition, milk creates a protective film around the organs gastrointestinal tract, which means that the absorption of harmful substances is significantly reduced, and the so-called deactivation of the poison entering into the body begins.

Unfortunately, milk is unlikely to be enough to maintain good physical condition. Indeed, in this case, even dairy products are issued only to those who come into contact with harmful substances in the maximum permissible concentration, but each organism is individual, and it is almost impossible to derive a single value for everyone.

In addition, one worker may not be exposed to hazardous working conditions, while another may describe them as risky, but only the latter can hope to receive preventive nutrition.

Which employees are entitled to milk?

Labor legislation provides for a number of guarantees and compensations for employees associated with working in hazardous working conditions. One of these compensations is free milk (Article 222 of the Labor Code of the Russian Federation). It is considered a valuable food product, therefore it is used to reduce the impact of harmful production factors and prevent occupational diseases. How to organize the distribution of milk and whether it can be replaced with money will be discussed below.

Milk should be given to employees who are subject to increased

levels of harmful production factors. Their list is given in the order of the Ministry of Health and Social Development of Russia dated February 16, 2009 No. 45n. Among such factors are, for example, epoxy resins, pesticides, pathogenic microorganisms, ionizing radiation from radioactive substances, etc.

The employer is obliged organize free milk distribution to employees if:

the presence of harmful production factors was established during a special assessment of working conditions or certification of workplaces, provided that no more than five years have passed since their conduct;
in fact, the maximum permissible values of harmful production factors have been increased (regardless of whether a special assessment or certification of workplaces was carried out).

If the employer has not carried out a special assessment, this does not release him from the obligation to give milk to workers for working in hazardous working conditions. In practice, a situation is possible when some workers receive milk based on the results of a special assessment, some based on the results of workplace certification, and some simply due to the presence of harmful factors (for example, if the employer did not conduct a special assessment in a timely manner or previously avoided conducting workplace certification). That is, to provide free milk, there is no requirement to have an examination of working conditions.

It is necessary to distinguish between harmful and especially harmful working conditions. The list of works with particularly harmful working conditions is given in the order of the Ministry of Health and Social Development of Russia dated February 16, 2009 No. 46n. Employees who work in such conditions are not entitled to milk, but to medical and preventive nutrition.

What are the norms and procedures for dispensing milk?

The free milk supply rate is 0.5 liters per shift. The quality of milk must comply with the requirements of the Federal Law of June 12, 2008 No. 88-FZ “Technical Regulations for Milk and Dairy Products” and the Technical Regulations of the Customs Union TR CU 033/2013 “On the Safety of Milk and Dairy Products”.

The employee must consume the resulting milk at work: in a buffet, canteen or other specially equipped room that complies with the sanitary and epidemiological rules SP 2.3.6.1079-01 “Public catering organizations. Sanitary and epidemiological requirements for public catering organizations, the production and circulation of food products and food raw materials in them” 5.

If an inspection by Rospotrebnadzor finds that the requirements for catering services have been violated (when issuing and storing milk), then the employer may be subject to punishment: an administrative fine for officials - from 2,000 to 3,000 rubles, for an organization - from 20,000 to 30,000 rubles or an administrative fine suspension of activities for up to 90 days (Article 6.6 of the Code of Administrative Offenses of the Russian Federation).

Milk is only provided on actual busy days employee at work with hazardous working conditions, regardless of the length of the shift (clauses 2, 4 of Order No. 45n). Milk not issued:

on days the employee is absent from work (regardless of the reason);
on days when the employee performs work not related to the influence of harmful production factors;
on days when the time spent working in hazardous working conditions is less than half of the work shift.

Table 1. Harmful factors and food products that are prescribed for working with them

Harmful production factor	food product
Contact with inorganic compounds of non-ferrous metals (except compounds of aluminum, calcium and magnesium)	Milk and 2 g pectin (as products containing it)
Constant contact with inorganic compounds of non-ferrous metals (except compounds of aluminum, calcium and magnesium)	Fermented milk products or products for dietary (therapeutic and preventive) nutrition under hazardous working conditions
Production or processing of antibiotics	Fermented milk products enriched with probiotics (bifidobacteria, lactic acid bacteria), or colibacterin prepared from whole milk

Fermented milk products must be given out during the working day, and products enriched with pectin - before starting work.

How to arrange milk delivery?

Milk in the organization is issued on the basis collective agreement and/or employment contracts with employees. This follows from Article 222 of the Labor Code. In addition, information on compensation for work under harmful and (or) dangerous working conditions, indicating the characteristics of these working conditions, must be specified in the employment contract (Article 57 of the Labor Code of the Russian Federation).

Information on milk distribution is included in the collective agreement if it exists, because it is not a mandatory document for the employer. It is advisable to reflect in the collective agreement:

a list of harmful production factors that exist in the organization;
norms and conditions for milk distribution;
possible types of equivalent food products, norms for their distribution and replacement procedure;
the procedure for replacing milk and equivalent food products with monetary compensation;
conditions and procedure for stopping the supply of milk and equivalent food products.

What can replace milk?

With the consent of the employee, the employer may replace milk with equivalent food products or monetary compensation. Let's take a closer look.

Replacing milk with equivalent food products

If necessary, milk can be replaced with certain foods.

Table 2. Products that can replace milk

You cannot replace milk with sour cream, butter, or other products (except those listed in Table 2). Products enriched with pectin (2 g) can be replaced with natural fruit and (or) vegetable juices with pulp in an amount of 300 ml.

To replace milk with an equivalent food product you must:

obtain the employee’s written consent;
take into account the opinion of the primary trade union organization or other representative body of workers (if any).

The decision to replace milk with an equivalent food product is formalized by order (instruction) of the employer.

The employer (with the consent of the trade union or other representative body of workers) may stop providing milk and equivalent food products if safe working conditions are provided at the workplace. This fact must be confirmed by the results of a special assessment of working conditions or a previously conducted certification of workplaces. The cancellation of milk distribution must be formalized by order (instruction) of the employer. Changes should also be made to the collective agreement and employee employment contracts.

Replacing milk with money

Article 222 of the Labor Code makes it possible to replace milk with monetary compensation. To do this, the following conditions must be met:

the employee must write a statement that he wants to receive money instead of milk;
the possibility of replacing milk with monetary compensation must be provided for in the collective agreement and (or) employment contract with the employee.

The procedure for paying compensation can be found in Appendix No. 2 to Order No. 45n. Its size must be equivalent to the cost of milk with a fat content of at least 2.5 percent or equivalent food products in retail trade at the employer’s location. The retail price of products is determined according to Rosstat data, taking into account the opinion of the trade union organization. This procedure must be treated very carefully, because the employee has the right to challenge the amount of compensation in court. Especially if the procedure for determining it is not described in detail in the collective agreement.

Payment is made at least once a month (usually together with wages). Its specific size must be specified in the collective agreement or employment contracts. In practice, contracts do not indicate the amount of compensation (after all, the cost of milk is constantly changing), but the procedure for determining it.

Regulatory acts

Document	Will help you
Article 222 of the Labor Code of the Russian Federation	Make sure that workers are given milk for harmful working conditions
Article 6.6 of the Code of Administrative Offenses of the Russian Federation	Understand what punishment an employer faces for non-compliance with the rules for dispensing milk
Article 57 of the Labor Code of the Russian Federation	Find out that information about harmful working conditions and appropriate compensation should be specified in the employment contract
Clause 4 of Art. 27 Federal Law of December 28, 2013 No. 426-FZ	Find out that milk can be issued based on the results of workplace certification
Federal Law of June 12, 2008 No. 88-FZ, decision of the Council of the Eurasian Economic Commission of October 9, 2013 No. 67	Clarify what requirements milk issued to employees must meet
Order of the Ministry of Health and Social Development of Russia dated February 16, 2009 No. 45n	Find out which of the employees is entitled to milk for being harmful and in what order it is given out
Order of the Ministry of Health and Social Development of Russia dated February 16, 2009 No. 46n	Understand which employees are entitled to therapeutic and preventive nutrition
Sanitary and epidemiological rules SP 2.3.6.1079-01	Find out in which room workers should be given milk

This is what you need to remember:

1 Milk for harmful working conditions can be replaced with equivalent food products or monetary compensation.

2 Replacing milk with monetary compensation is not an obligation, but the right of the employer. But you also cannot force an employee to receive monetary compensation instead of milk.

3 The employee has the right to refuse monetary compensation at any time and demand that milk be given to him.

4 The employer should carefully determine the amount of monetary compensation for milk depending on average cost product on the market. Otherwise, the employee may challenge the amount of compensation in court.

5 It is profitable for an employer to provide milk to employees only if it is possible to purchase it at the minimum price.

In jobs with hazardous working conditions, workers are given milk or other equivalent food products free of charge according to established standards (Article 222 of the Labor Code of the Russian Federation).

The norms and conditions for the free distribution of milk or other equivalent food products, as well as therapeutic and preventive nutrition, are established in the manner determined by the Government of the Russian Federation.

Decree of the Government of the Russian Federation dated March 13, 2008 No. 168 “On the procedure for determining the norms and conditions for the free issuance of therapeutic and preventive nutrition, milk or other equivalent food products and making compensation payments in an amount equivalent to the cost of milk or other equivalent food products”, stipulates that that employees engaged in work with hazardous working conditions are given free milk or other equivalent food products in accordance with the list of harmful production factors, under the influence of which the consumption of milk or other equivalent food products is recommended for preventive purposes.

For workers engaged in work with hazardous working conditions, the provision of milk or other equivalent food products may be replaced, upon their written applications, with a compensation payment in an amount equivalent to the cost of milk or other equivalent food products. Such a replacement must be provided for by the collective agreement and (or) employment contract.

The very procedure for making a compensation payment in an amount equivalent to the cost of milk or other equivalent food products (hereinafter referred to as the procedure).

A list of harmful production factors, under the influence of which, for preventive purposes, it is recommended to consume milk or other equivalent food products (hereinafter referred to as the List), as well as the rules and conditions for the free issuance of milk or other equivalent food products to employees engaged in work with hazardous working conditions , which can be given to employees instead of milk, are approved by Order of the Ministry of Health and Social Development of the Russian Federation dated February 16, 2009 No. 45n.

According to clause 2 of the Norms and Conditions for the Distribution of Milk, free distribution of milk or other equivalent food products is carried out to employees on days of actual employment in jobs with hazardous working conditions due to the presence of harmful production factors in the workplace, as provided for in the List.

The rate for free milk distribution is 0.5 liters per shift, regardless of the duration of the shift (clause 4 of the norms and conditions for milk distribution).

According to clause 13 of the Norms and Conditions for the Distribution of Milk, if safe (acceptable) working conditions are ensured, confirmed by the results of certification of workplaces and the conclusion of the state examination of working conditions, the employer decides to stop the free distribution of milk or other equivalent food products, taking into account the opinion of the primary trade union organization or other representative body of workers.

Personal income tax when issuing milk to employees

By general rule All types of compensation payments established by the current legislation of the Russian Federation within the limits of the norms are not subject to personal income tax (paragraph 2, paragraph 3, article 217 of the Tax Code of the Russian Federation).

Income in the form of the cost of milk given to employees on days of actual employment in jobs with hazardous working conditions is not subject to personal income tax in accordance with the Rules and Conditions, approved. by order of the Ministry of Health and Social Development of the Russian Federation dated February 16, 2009 No. 45n (Letters of the Ministry of Finance and the Federal Tax Service of the Russian Federation dated August 5, 2016 No. GD-4-11/14360@, dated December 11, 2014 No. BS-3-11/4256@).

In the event that milk is given to employees on days when they are not engaged in work with hazardous working conditions, income is subject to personal income tax in the generally established manner (Letter of the Ministry of Finance of the Russian Federation dated October 16, 2014 No. 03-04-05/52286).

If an employee performed work under hazardous working conditions for half of the established work shift, the employer is obliged to give him milk free of charge, based on the norm of 0.5 liters per shift.

In addition, according to the financial department, income in the form of milk or other equivalent food products issued to employees whose working conditions are recognized as acceptable based on the results of certification are subject to personal income tax (Letter of the Ministry of Finance of the Russian Federation dated March 31, 2014 No. 03-03-R3/13985 ).

However, as judicial practice shows, the cost of milk given to employees for working in hazardous conditions is not subject to personal income tax, even in the absence of workplace certification. As the courts note, the basis for issuing milk to an employee is his actual employment at work under the influence of production factors specified in Appendix No. 3 to the Order of the Ministry of Health and Social Development of the Russian Federation dated February 16, 2009 No. 45n. Therefore, certification is not a condition for providing compensation for harmful working conditions. It depends on the presence of harmful production factors in the workplace, under the influence of which milk consumption is recommended for preventive purposes. Therefore, the cost of the milk issued does not form the employee’s income subject to personal income tax (Resolutions of the Federal Antimonopoly Service of the West Siberian District dated July 10, 2014 No. A27-16004/2013, Ural District dated March 13, 2012 No. F09-1132/12).

Expenses in the form of the cost of free milk provided to employees

For the purposes of calculating income tax, the company can include compensation charges related to working conditions, provided for by legislation, labor (collective) agreements in labor costs (clause 4 of Article 255 of the Tax Code of the Russian Federation).

Is it possible to take into account as part of the recognized expenses the cost of free milk given to employees (compensation for milk) or other equivalent food products if, according to the results of certification, working conditions at individual workplaces were recognized as acceptable due to the absence of harmful production factors?

In this situation, the company’s expenses for providing free milk to employees cannot be attributed to compensation payments, since working conditions in which the levels of exposure to harmful production factors do not exceed established standards are not recognized as harmful (Article 209 of the Labor Code of the Russian Federation). In such situations, according to the regulatory authorities, the company can take into account the cost of free milk given to employees as part of labor costs as payment in kind (Letters of the Federal Tax Service of the Russian Federation dated May 8, 2014 No. GD-4-3/8858@, Ministry of Finance of the Russian Federation dated March 31, 2014 No. 03-03-R3/13985).

That is, if such a payment is provided for by an employment or collective agreement, then regardless of its size, the cost of milk can be taken into account as part of labor costs (clause 25 of Article 255 of the Tax Code of the Russian Federation). Otherwise (there are no harmful factors, the supply of milk is not provided for by either a collective or employment contract), the cost of milk is not taken into account for profit tax purposes (clause 25 of Article 270 of the Tax Code of the Russian Federation).

Insurance premiums in the absence of workplace certification

All types of compensation payments established by the legislation of the Russian Federation (within the limits established in accordance with the legislation of the Russian Federation) related to the implementation of an individual labor duties (clause “and” clause 2, part 1, article 9 of the Federal Law of July 24, 2009 No. 212-FZ “On insurance contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund”).

The question remains controversial about the need to include in the base for calculating insurance premiums the cost of milk (compensation payments) issued to employees engaged in work with hazardous working conditions, if the company has not carried out a special assessment of working conditions.

Example No. 1

The company for the period 2013-2014. Milk was provided to employees on the basis of a collective agreement, salary slips, individual insurance contribution cards, and a list of positions. Milk was given to employees for whom milk was not provided in accordance with the workplace certification card for working conditions.

During the inspection of the Federal Social Insurance Fund of the Russian Federation, it was concluded that the base for calculating insurance premiums by the amount of payment for milk was underestimated, since the working conditions of workers were not recognized as harmful as a result of a special assessment of working conditions (before 01/01/2014 - certification of workplaces).

However, the court sided with the company based on the following arguments.

The basis for issuing milk or therapeutic and preventive nutrition to an employee is his actual employment in work associated with harmful production factors.

The above standards do not provide for certification as a condition for providing compensation.

That is, carrying out certification and recognizing the working conditions of individual workplaces as acceptable in terms of chemical, biological and physical factors does not relieve the employer of the obligation to provide compensation to the employee on the days of actual employment in work associated with the presence of harmful production factors in the workplace.

Clause 14 of the Norms and Conditions for the Distribution of Milk stipulates that other issues related to the free distribution of milk or other equivalent food products are resolved by the employer independently, taking into account the provisions of the collective agreement.

And during the audited period, the company had in force for 2012 - 2014, which provided for the employer’s obligation to provide milk to employees working in hazardous working conditions.

The general director of the company, in agreement with the trade union committee, approved a list of professions and positions with hazardous working conditions, which include free milk (with a milk distribution rate of 0.5 liters per shift).

In accordance with clause 13 of the Order of the Ministry of Health and Social Development of the Russian Federation dated February 16, 2009 No. 45n, the basis for an employer’s decision to stop providing free milk or other equivalent food products to employees are:

availability of results of a special assessment of working conditions;

consent of the primary trade union organization or other representative body of employees (if the employer has one) to terminate the free distribution of milk or other equivalent food products to employees based on the results of a special assessment of working conditions at their workplaces.

If the employer does not have data on the results of a special assessment of working conditions or fails to comply with the above requirements, the procedure for free provision of milk or other equivalent food products, which was in force before the entry into force of Order No. 45n dated 02.16.2009, is maintained.

The company's trade union organization refused to give consent to stop the free distribution of milk or other equivalent products to employees whose workplace certification results for working conditions did not reveal harmful production factors or exceeding established standards for them.

Thus, the free provision of milk or other equivalent products is not made dependent on the results of certification of workplaces (Decision of the Voronezh Region AS dated July 5, 2016 No. A14-1610/2016).

Consequently, before the certification of workplaces, the company is obliged to provide workers engaged in work with hazardous working conditions with free milk in accordance with the adopted collective agreement.

Failure to carry out certification is not a basis for additional assessment of insurance premiums and can only serve as the basis for conclusions about violation of labor laws (Resolution of the AS of the North-Western District dated 08.08.2016 No. A44-3876/2015).

A similar legal position is contained in the Resolutions of the Court of Appeal of the Novgorod Region dated August 8, 2016 No. A44-3876/2015, the Seventeenth Arbitration Court of Appeal dated November 26, 2015 No. A71-6244/2015, and the Court of the West Siberian District dated June 18, 2015. No. A27-8720/2014 and dated 06.11.2014 No. A27-7912/204, AS of the Volga-Vyatka District dated 09.10.2014 No. A79-8337/2013, FAS of the Ural District dated 25.04.2014 No. F09- 2274/2014.

Working conditions are recognized as safe

However, if, according to the conclusion of the certification commission, the submitted certification cards and protocols for assessing working conditions, working conditions and workplaces are recognized as safe - optimal or acceptable, cash payments to employees in an amount equivalent to the cost of milk are subject to insurance premiums.

According to Art. 219 of the Labor Code of the Russian Federation, in the case of ensuring safe working conditions in the workplace, confirmed by the results of certification of workplaces, compensation for workers is not established. Therefore, if there is no confirmation of the actual employment of workers in hazardous conditions and the impact on them of harmful factors provided for in the List, the provision of milk to workers and the payment of compensation in exchange for its cost is not compensatory in nature (Resolution of the Autonomous District of the Central District dated July 28, 2016 No. A68-7691/2015) . Also subject to insurance premiums is the cost of milk provided to employees in excess of the norms established by law.

VAT accrual on the cost of milk transferred to employees

If a company provides employees engaged in work with hazardous working conditions free milk or other equivalent food products according to established standards, and the costs of purchasing this milk or other equivalent food products are included in the costs of production and sales of products, then VAT does not arise (Letter Federal Tax Service of the Russian Federation for Moscow dated November 27, 2013 No. 16-15/123500).

However tax authorities in a number of cases (for example, in the absence of certification of workplaces), they try to bring the distribution of milk to employees under the subject of VAT taxation. Let us recall that for the purposes of calculating VAT, the gratuitous transfer of ownership of goods, the results of work performed, or the provision of services is recognized as the sale of goods, work, and services (clause 1 of Article 39, subclause 1 of clause 1 of Article 146 of the Tax Code of the Russian Federation).

As judicial practice shows, regardless of the certification of workplaces, the distribution of milk to “harmful workers” is not subject to VAT. Thus, if the costs of providing milk to employees engaged in work with hazardous working conditions are documented and, in accordance with Article 252 of the Tax Code of the Russian Federation, relate to costs associated with production and sales, then the provision of milk to company employees cannot be subject to VAT. (Decision of the Belgorod Region AS dated June 24, 2015 No. A08-831/2015).

Example No. 2

The actual distribution of milk was carried out in accordance with the lists of positions and professions approved by the managing director and agreed upon by the trade union committee, in accordance with collective agreements.

Harmful factors present in the organization's production are included in the List of harmful production factors, under the influence of which, for preventive purposes, it is recommended to consume milk or other equivalent food products, approved by Order of the Ministry of Health of the Russian Federation dated March 28, 2003 No. 126. The facts of the company's purchase of milk and its distribution to employees are confirmed by relevant documents.

However, according to the inspectorate, the transfer of milk to employees is recognized as an operation subject to VAT. Having assessed the evidence presented in the case file, the courts came to the conclusion that the company’s distribution of milk to employees was carried out within the framework of relations to provide guarantees and compensation caused by exposure to harmful factors during the performance of work duties, and therefore is not subject to VAT.

In addition, in paragraph 12 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 30, 2014 No. 33 “On some issues that arise in arbitration courts when considering cases related to the collection of VAT”, it is explained that operations of free provision to their employees are not subject to taxation guarantees and compensation in kind provided for by labor legislation (for example, in the presence of harmful and (or) dangerous working conditions).

Based on this, the provision of milk to “pests” is not subject to VAT (Resolution of the Central District Administration of March 4, 2016 No. A08-831/2015).

In this case, “input” VAT is accepted for deduction subject to compliance with general conditions(Clause 1, Clause 2, Article 171, Clause 1, Article 172 of the Tax Code of the Russian Federation).

But if working conditions are considered normal based on the results of a special assessment, then the distribution of milk will be regarded as a gratuitous transfer and subject to VAT (Letter of the Ministry of Finance of the Russian Federation dated 01.08.2007 No. 03-03-06/4/104).

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