If a citizen resigns, the employer makes a full settlement with him. The law allows you to receive compensation for unused vacation.

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However, the rule also applies in the opposite direction. If a citizen goes on vacation without working required amount days, a deduction for vacation upon dismissal may be made.

To understand all the features of the procedure, it is worth familiarizing yourself with the latest information on the topic in advance.

General information

After working for six months in one workplace, a person receives the right to go on annual paid leave.

According to the standards enshrined in, the duration of rest cannot be less than 28 days.

In some situations, you can go on vacation earlier. Paid vacation is provided until the end of six months by agreement of the parties. This possibility is enshrined in Part 3 of Article 122 of the Labor Code of the Russian Federation.

If the leave was granted in advance before working for 12 months, upon dismissal the employer has the right to withhold part of Money.

The fact is that vacation pay paid to a specialist before a vacation is accrued throughout the year.

Legislation

The procedure for granting leave and all issues related to it is regulated by the Labor Code of the Russian Federation. According to the provisions enshrined in current regulations, leave can be granted at any time if this does not contradict production needs.

By general rule To obtain the right to the next paid leave, you must work for at least six months.

However, having gone on vacation after certification of the required 6 months, the specialist worked only 2 weeks of paid rest. The specialist must work the second part during the remaining six months. The entire vacation can be worked within 11 months.

Current legislation does not prohibit granting leave earlier than 6 months. In subsequent years, vacations may be scheduled at the beginning of the year or another period.

If a person leaves a position before working the previously paid time, the employer can recover the money provided as vacation pay. A similar possibility is enshrined in .

It should be remembered that withholding compensation for vacation upon dismissal is the employer’s right, not an obligation. Only he can make the decision. The employee's opinion is not taken into account.

When does the ban apply?

If the employee decides to stop working with the company, the employer has the opportunity to return money for unworked days.

However, according to current legislation, there are special cases in the event of which it is impossible to withhold. They depend on.

It will not be possible to return money for vacation if the employee leaves the company due to:

• or termination of the activities of the individual entrepreneur;
• conscription into the ranks of the RF Armed Forces or the beginning of alternative service;
• impossibility of continuing activities due to the presence of a medical certificate;
• death of one of the parties to the contract;
• change of owner of the organization.

There are other reasons prohibiting deduction for vacation upon dismissal. You can find out the exact list by referring to the current legislation.

Deduction for vacation upon dismissal

The procedure may have a number of features depending on the nuances of the current situation.

To know how to proceed, it is worth familiarizing yourself with a number of typical cases during which vacation deductions can be made.

Compensation for unused

In practice, situations are possible when deduction occurs upon dismissal. This usually happens if funds were credited to the employee in excess.

Current legislation does not prohibit a company from asking an employee to return capital.

However, according to the rules, the money must be deposited voluntarily into the company's cash desk.

For unspent

Deduction for vacation upon dismissal is carried out taking into account the restrictions established in Article 138 of the Labor Code of the Russian Federation.

According to the provisions of the regulatory legal act, the amount of withholding cannot exceed 20% of the wages provided.

The rule applies even if the employee himself agrees to contribute a larger amount.

However, the law allows a specialist to voluntarily pay more by depositing money into the company's cash register or depositing funds into the company's bank account.

If the employee does not want to do this on his own, the employer can try to claim the funds through the court. However arbitrage practice very controversial on this issue.

For studying

There is no prohibition in the law to avoid withholding funds for student leave. Typically, the procedure is performed if the employee decides to quit during his studies. It is believed that in this situation there is inappropriate use of study leave.

The employer receives the right to demand the voluntary return of vacation pay from the employee. In case of refusal, the employer may go to court.

However, getting the money back during the proceedings is quite problematic. The verdict depends on the individual nuances of the current situation.

However, statistics show that in most cases the government agency takes the employee’s side.

The fact is that the Labor Code only stipulates the possibility of deduction for annual paid leave. Information on vacations provided in connection with studies is available in legal act absent.

How to calculate the amount of overpaid funds?

The procedure for calculating the amount of deduction is not complicated. Initially, the period that the employee did not work is determined.

The procedure is carried out according to the formula: Od = 28 / 12 x Ms, where:

• Od – number of vacation days worked;
• Ms is the number of months worked to achieve the vacation period.

Then the size of the deduction itself is determined. To complete the procedure, you need to know the average daily salary of the employee with whom cooperation is being terminated.

The indicator should be the same as when calculating other payments upon dismissal. There is no need to separately calculate it specifically to determine retention.

The calculation period is 12 months before the vacation. If they are not fully worked out, the average daily earnings are determined based on the actual period during which the employee worked.

Taxes

If withholding for leave upon termination is made, all mandatory payments and fees must be paid.

The employer must contribute funds to pay:

• social insurance contributions;
• income tax;
• contributions to the Pension Fund;
• personal income tax;

If the employer fails to make one or more payments, it will be considered a violation.

How to do without withholding?

According to current legislation, in 2019, withholding for unearned vacation is a right, not an obligation, of the employer.

If he does not want to return the money, he can terminate cooperation with the employee under standard conditions.

What to do if the employee does not agree to return?

Statistics show that sometimes disputes with the employee arise during the retention process. The basis for them is usually the amount that the company wants to return.

E.A. Shapoval, lawyer, PhD. n.

How to calculate and take into account an employee’s debt for unworked vacation days upon dismissal

It happens that an employee quits before the end of the working year, for which he has already taken vacation in advance. In most cases, you will be able to withhold from the resigning employee the amount of vacation pay for days not worked. And Art. 137 Labor Code of the Russian Federation. To do this, it is sufficient for the manager to deduct this amount from the money due to the employee upon final payment. The employee's consent is not required for this.

But there is a limitation - you can withhold no more than 20% of the amount paid to the employee in person s Art. 138 Labor Code of the Russian Federation. If the employee’s debt is greater, he can pay it off voluntarily.

If he does not agree to return overpaid vacation pay, which cannot be withheld upon dismissal, you can try to recover it in court. e Art. 1102, art. 1109 Civil Code of the Russian Federation. Or forgive the employee the debt and not withhold anything from him.

We calculate the amount of debt

STEP 1. Determine the number of unworked vacation days

* If the employee worked the last working month for less than half, then such month does not need to be taken into account, and if he worked half or more than half of the month, then such month is rounded up to a full month A clause 35 of the Rules on regular and additional leaves, approved. NKT USSR 04/30/30 No. 169; Art. 423 Labor Code of the Russian Federation.

Keep in mind that the number of unworked vacation days you end up with can be rounded to the nearest whole number. This is not prohibited by the Labor Code of Russia F Letter of the Ministry of Health and Social Development of Russia dated December 7, 2005 No. 4334-17. But you can only round in favor of the employee, and since you are making deductions, for example, 2.33 is rounded to 2 calendar days th Articles 8, 9 of the Labor Code of the Russian Federation.

STEP 2. Calculate the amount of unearned vacation pay

When calculating, you will need information about the average earnings based on which you paid the employee for vacation. You already have this information.

When calculating, you cannot take the average daily earnings at the time of dismissal.

If it turns out that the employee has more unworked vacation days than the duration of the last vacation (for example, there are 10 such days, and the last vacation lasted 7 days), then you need to raise information about average earnings for the previous vacation. And accordingly, part of the employee’s debt (for 7 days) is calculated based on the average earnings during the last vacation, and the part (for 3 days) is calculated based on the average earnings during the previous vacation.

The situation will become somewhat more complicated if, during the employee’s vacation, the organization as a whole (or the structural unit) wages increased. In this case, part of the vacation pay is increased by an increasing factor from the moment of increase until the end of the vacation A clause 16 of the Regulations on the specifics of the procedure for calculating average wages, approved. Decree of the Government of the Russian Federation dated December 24, 2007 No. 922.

That is, according to the calendar from last day vacation, you need to count the number of unworked vacation days and determine how many days fall in the period after the day of the salary increase, and how many - before this date (if there are such days). For example, the employee had a vacation from July 18 to August 7. Unworked days - 12. The salary increase took place on August 1. Then the number of unworked vacation days after the promotion is 7.

Reflected in tax accounting and reporting

Personal income tax was withheld from the amount of vacation pay previously paid to the employee; insurance premiums to extra-budgetary funds. The amount of vacation pay itself was included in expenses for income tax purposes. And now it turns out that part of the vacation pay was paid to the employee in excess. What to do with taxes and contributions? How can I correct them?

In some cases listed in the Labor Code of the Russian Federation, deduction of vacation pay for unworked vacation days is prohibited. For example, upon termination employment contract in connection with the employee's conscription for military service at clause 1 part 1 art. 83, Art. 137 Labor Code of the Russian Federation.

Let us say right away that the debt to the employer for unworked vacation days arises not because the vacation was granted to the employee in violation of the law, but because the employee quits before the end of the working year for which he was granted vacation To Articles 122, 123 of the Labor Code of the Russian Federation. Consequently, at the time the vacation was granted, vacation pay was paid lawfully - there was no error. And no corrections during the vacation period in tax accounting no need to do it. All adjustments that arise in connection with the deduction of unearned vacation pay from the employee now or the forgiveness of these amounts will be taken into account during the dismissal period.

Closing the debt

First, let's consider a situation where either you withhold the debt from the employee's salary during the final settlement, or he himself deposits this amount into the organization's cash desk.

Then both the amount of vacation pay that the employee returned and the amount of insurance premiums that were excessively accrued on it must be included in non-operating income in the month of the employee’s dismissal. This is what the Russian Ministry of Finance advises to take into account: And Art. 250 Tax Code of the Russian Federation; Letter of the Ministry of Finance of Russia dated December 3, 2009 No. 03-03-05/224.

What about personal income tax? After all, when paying vacation pay, more tax was withheld from the employee than necessary. It turns out that now we need to return part of the tax to him? Is this so and how to fill out a certificate of income for an individual using Form No. 2-NDFL Order of the Federal Tax Service of Russia dated November 17, 2010 No. ММВ-7-3/611@ in our situation, we were told by the Russian Ministry of Finance.

From authoritative sources

Deputy Head of the Department of Taxation of Personal Income of the Ministry of Finance of Russia

“ If the employer withholds vacation pay for unworked vacation days upon dismissal, then in the tax accounting register for personal income tax and certificate 2-NDFL, the data on the amount of vacation pay paid to the employee and the amount of personal income tax withheld from them in the month of payment of vacation pay does not need to be adjusted. And in the month of dismissal, both in the register and in the 2-NDFL certificate, you need to reflect the amount accrued to the employee during the final payment, minus the part of the vacation pay for unworked vacation days that the employer withheld. In this case, the amount of personal income tax from the last payment to the employee must be reduced by the amount of personal income tax from the part of vacation pay for unworked vacation days that the employer withheld.

After the employer has decided to withhold vacation pay X Art. 137 Labor Code of the Russian Federation, he must notify the employee in writing no later than 10 working days that personal income tax was excessively withheld from the amount of vacation pay for unworked vacation days. And the employee must write an application for the return of excessively withheld and transferred to the NDF budget L clause 1 art. 231 Tax Code of the Russian Federation.

However, there is no need to transfer the excessively withheld personal income tax to the employee’s account. By this amount, you can simply reduce the employee’s personal income tax debt, calculated from the last payment to him.”

If any deductions (standard, property) were not provided to the employee, then everything is simple.

But if the employee was provided with any personal income tax deductions, the calculation will be more complicated.

Let's look at a specific example.

Example. Calculation of the amount of debt for unworked vacation days upon dismissal

/ condition / The employee was hired on September 1, 2010. From May 3 to May 31, 2011, he was granted annual paid leave for the first year of work (28 calendar days). During his vacation, he was accrued vacation pay in the amount of RUB 19,047.62.

The salary for the second half of June 2011, accrued to the employee upon final payment, is 10,476.19 rubles.

Employee personal income tax deductions are not provided.

/ solution / The algorithm of actions is as follows.

STEP 1. We determine the number of unworked calendar days of vacation, taking into account the fact that at the time of dismissal the employee had worked in the organization for 10 months:

28 days – (28 days / 12 months x 10 months) = 28 days. – (2.33 days x 10 months) = 4.66 days.

STEP 2. We calculate the amount of debt an employee owes for unworked vacation days:

RUB 19,047.62 / 28 days x 4.66 days = 3170.07 rub.

Personal income tax on this amount is 412 rubles. (RUB 3,170.07 x 13%).

That is, the employee’s debt without personal income tax is:

RUB 3,170.07 – 412 rub. = 2758.07 rub.

STEP 3. We define size limit deductions from salary upon final payment. The amount excluding personal income tax, on the basis of which it is determined, is:

RUB 10,476.19 – (RUB 10,476.19 x 13%) = RUB 9,114.19

The maximum amount that can be withheld from an employee is:

9114.19 rub. x 20% = 1822.84 rub.

It turns out that only this amount can be withheld from the employee’s salary, although the employee’s debt (RUB 2,758.07) is greater.

The manager decided not to collect the remainder of the debt from the employee.

STEP 4. We determine the amount to be paid to the employee:

RUB 10,476.19 – 1822.84 rub. – (RUB 10,476.19 – RUB 1,822.84) x 13% = RUB 7,528.35

Now let's talk about insurance premiums. Vacation pay for an employee were paid in an amount greater than necessary. Consequently, the contribution base was overestimated. But, as we have already said, we will make all adjustments in the current period - during the dismissal period I Letter of the Ministry of Health and Social Development of Russia dated May 28, 2010 No. 1376-19.

That is, you will not have to recalculate insurance premiums during the holiday pay period.

Due to the withholding of unearned vacation pay, the employee will receive less money in the final settlement. And it is on this reduced amount that you will charge the insurance premium. s clause 1 art. 11, art. 17 of the Federal Law of July 24, 2009 No. 212-FZ “On insurance premiums...”.

So, in the example discussed above, the base for calculating insurance premiums will be 8653.35 rubles. (RUB 10,476.19 – RUB 1,822.84). It is on the basis of this amount that the amount of accrued contributions for June 2011 must be shown in personalized reporting on form SZV-6-2 for the first half of 2011.

But if the amount of payments accrued to the employee in the dismissal quarter is less than the amount owed for unworked vacation days, then you will have to adjust personalized reporting that's why the employee at Letter of the Pension Fund of 05/19/2011 No. 08-26/5404. The Pension Fund told us how to do this correctly.

From authoritative sources

Deputy Manager of the Branch of the Pension Fund of the Russian Federation for Moscow and the Moscow Region

“If in the billing (reporting) period the employer withholds vacation pay for unworked vacation days that were accrued in previous reporting periods, then a negative amount of additional accruals may result.

In this case, corrective information is generated in forms SZV-6-1 or SZV-6-2 for the period in which the employee was granted leave, and they are submitted to the Pension Fund of the Russian Federation along with the initial information of personalized accounting for the reporting period in which unearned vacation pay was withheld from the employee.

In this case, the amount indicated in the ADV-6-2 form must be equal to the amount taken into account in the last calculation in the RSV-1 form approved By Order of the Ministry of Health and Social Development of Russia dated November 12, 2009 No. 894n, submitted to the Pension Fund. There is no need to make changes to the previously submitted calculation for insurance premiums RSV-1.”

Please note that only accrued contributions to the Pension Fund need to be adjusted in the period when the employee took vacation in advance. No adjustment is required for contributions paid.

Example. Reflection in personalized reporting of a negative amount of additional accruals for insurance contributions to the Pension Fund when deducting a debt from an employee

The rate of pension contributions to finance the insurance part of the labor pension is 26%.

Simonov A.A. took a vacation in advance in the first quarter of 2011. The insurance premiums accrued and paid for it during this period amounted to 15,000 rubles. By order of the manager, upon dismissal, it is necessary to withhold from him the amount of vacation pay for unworked vacation days.

The salary for 1 day worked in July was 1000 rubles, unearned vacation pay was 1500 rubles. That is, as a result of withholding the debt from the employee, the amount of additional contributions for it for July will be negative: –130 rubles. ((1000 rub. – 1500 rub.) x 26%).

For all other employees (except A.A. Simonov) in the third quarter of 2011, insurance premiums in the amount of 25,000 rubles were accrued. And 24,870 rubles were paid in the third quarter. (25,000 rubles – 130 rubles).

/ solution / The original form SZV-6-2 for 9 months of 2011 will look like this.

R E E S T R
information on accrued and paid insurance contributions for compulsory pension insurance and the insurance length of the insured persons

Information type:

The corrective form SZV-6-2 for the first quarter of 2011 will be filled out as follows.

Insurance premiums for the last three months (six months in 2010) of the reporting period for insured persons

Information about corrective (cancelling) information:

When filling out personalized reporting in this way, information about contributions accrued for the third quarter according to ADV-6-2 (accrued 25,000 rubles, negative corrective additional accrual - 130 rubles) will coincide with the information in the RSV-1 form.

We forgive the debt

Tax officials consider expenses in the form of amounts of unearned vacation pay to be economically unjustified And Art. 252 Tax Code of the Russian Federation; Letter of the Federal Tax Service of Russia for Moscow dated June 30, 2008 No. 20-12/061148. Therefore, if you do not want to argue with them, then you need to reduce the income tax base during the dismissal period by the amount of unearned vacation pay. At the same time, neither personal income tax, nor insurance premiums, nor reporting on them need to be adjusted. In addition, insurance premiums accrued on payments not taken into account for profit taxation can be taken into account in tax expenses X Letter of the Ministry of Finance of Russia dated April 23, 2010 No. 03-03-05/85.

It is always necessary to calculate the amount of debt if the employee has unworked vacation days at the time of dismissal. But if the debt is not very large and you don’t want to collect it from the employee (if only for the reason that you don’t want to make any adjustments in accounting), you can do this. For a while, you just need to forget about the debt. That is, it should not be collected from the employee, but the debt should not be forgiven either. And after 3 years, this debt can be written off as hopeless th Art. 196, paragraph 1, art. 1102 Civil Code of the Russian Federation, and you won’t have to adjust anything anymore.

The time for vacations is already behind us, but problems associated with them may arise later - for example, if the resigning employee took his vacation “in advance.” In this case, the employer has the right to withhold the amount for unworked vacation days. The problem is that the current legislation (tax and labor) does not fully regulate this issue. In this regard, at present there are directly opposite points of view both on the procedure for collecting withheld amounts and on related taxation issues. L.P. understands the problem. Fomicheva, auditor, member of the Chamber of Tax Consultants of the Russian Federation ( [email protected]), and methodologists from 1C tell us how to reflect the corresponding operations in 1C:Enterprise.

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Providing the next vacation in advance

The relationship between employee and employer is regulated by the Labor Code of the Russian Federation. The right to use vacation for the first year of work arises for the employee after six months of his continuous work in this organization.

Leave for the second and subsequent years of work can be granted at any time of the working year in accordance with the order of provision of annual paid leave established in a given organization (Article 122 of the Labor Code of the Russian Federation). Read more about granting vacations and their registration. An employee's vacation pay should be calculated according to the general rules established in Article 139 of the Labor Code of the Russian Federation. Without dwelling in detail on the rules for calculating average earnings for vacation pay, we only note that in accordance with the new edition of the Labor Code of the Russian Federation, from October 6, 2006, new order its calculation. The billing period will be 12 calendar months preceding the vacation (now three), and the average monthly number of working days will be 29.4 (now 29.6). 12 calendar months (Article 139 of the Labor Code of the Russian Federation) preceding the vacation calculation period will be taken before the 1st day of the month of going on vacation.

Read more about changes in labor legislation.

So, an employee can receive vacation not for the time actually worked, but “in advance.” And part of the vacation pay paid to him will be an advance for upcoming work In the organisation.

The employer's right to withhold debt for unworked vacation

Upon termination of an employment contract with an employee, the employer is obliged to pay the employee all amounts due to him on the day of his dismissal, including for all unused vacations (Articles 140 and 127 of the Labor Code of the Russian Federation).

At the same time, if the employee has a debt to the employer, the latter has the right to withhold, firstly, amounts to which the employee agreed to be withheld, and secondly, amounts that can be withheld without the employee’s consent, that is, on the basis of the “letter of the law”. If an employee quits before the end of the working year for which he has already received annual paid leave in advance, the employer has the right to withhold from his salary the amount for unworked vacation days, with the exception of certain cases(Article 137 of the Labor Code of the Russian Federation).

Deductions for these days are not made if the employee is dismissed for a number of reasons provided for by the Labor Code of the Russian Federation.

The purpose of withholding vacation pay from the employee’s salary is to pay off his debt to the employer, because these amounts are not earned by the employee. They were issued to the employee with the condition of their subsequent completion, but the employee this condition did not comply. Since he, having received unearned money, became unjustly enriched, and the employer who issued it suffered a loss.

The general provisions of Article 138 of the Labor Code of the Russian Federation limit deductions in order to provide the employee with guaranteed means of subsistence. It states that it is inadmissible to exceed 20 percent of deductions for each salary payment. This rule will apply only to wages, and other payments not related to remuneration for labor and accompanying accruals of compensatory and incentive nature will not be subject to this restriction.

In the opinion of the author, the restrictions provided for by this norm when deducting for unworked vacation should not be applied. The legislator, as follows from paragraph 5 of part 2 of Article 137 of the Labor Code of the Russian Federation, does not limit the employer to any percentage limit, but clearly indicates the permissibility of withholding the debt in the amount of all unworked days. That is, the special norm of paragraph 5 of part 2 of Article 137 of the Labor Code of the Russian Federation applies, and not the general one (Article 138 of the Labor Code of the Russian Federation).

But the last word, naturally, remains with the courts. Perhaps, according to this issue an official clarification will be issued competent authority states.

Repayment of a resigning employee's debt to the employer is possible from all payments, except for funds from which deduction is not made in accordance with the norms of the Labor Code of the Russian Federation or other laws. Such payments include various benefits for social insurance, amounts of compensation for harm caused to the employee and other targeted payments not directly related to the quantity, quality and working conditions of the employee.

In the event of a dispute about the amount of amounts due to the employee upon dismissal, the employer is obliged to pay the amount not disputed by the employee on the day of dismissal (Part 2 of Article 140 of the Labor Code of the Russian Federation). A comparison of the text of paragraph 5 of part 2 of Article 137 of the Labor Code of the Russian Federation and part 3 of Article 137 of the Labor Code of the Russian Federation does not make it possible to make a decision on the possible retention periods. Therefore, in practice, in terms of deductions for vacation, the provisions of Part 3 of Article 137 of the Labor Code of the Russian Federation do not apply.

At the same time, there may be cases when the withholding of unearned vacation pay from an employee is theoretically permissible, but practically impracticable - for example, when the employee does not have the amounts due for payment or there are insufficient amounts. This is where the opinions of experts diverge diametrically. Some argue that collecting amounts overpaid to an employee through the courts in such cases is unacceptable. To confirm that they are right, supporters of this point of view refer to paragraph 3 of Article 2 of the Rules on regular and additional vacations, approved by the People's Commissar of the USSR on April 30, 1930 (hereinafter referred to as the Rules on Vacations). It says that " if the employer, having the right to withhold, was actually unable to make it at all or partially during settlement (for example, due to insufficient amounts due during settlement), then further collection (through the court) is not made".

This provision was declared invalid on the territory of the Russian Federation by order of the Ministry of Health and Social Development of Russia dated March 3, 2005 No. 190. However, the order itself was returned without consideration by the Russian Ministry of Justice (see letter of the Russian Ministry of Justice dated March 31, 2005 No. 01/2337-VYA). Therefore, the order was not published in " Rossiyskaya newspaper". And on the basis of paragraph 10 of the Decree of the President of the Russian Federation of May 23, 1996 No. 763, the document in this case is considered an act that has not entered into force. Unfortunately, the Ministry of Health and Social Development of Russia or the Ministry of Labor of Russia did not bother to give an official explanation on such an ambiguous norm of labor legislation.

However, the reference to the Vacation Rules in this case is unlawful, because they are applied to the extent that does not contradict the Labor Code of the Russian Federation (Part 1 of Article 423 of the Labor Code of the Russian Federation). The priority of the Labor Code of the Russian Federation over other norms of legislation is established by Article 5 of the Labor Code of the Russian Federation.

Other lawyers believe that if the illegality of the actions of an employee who quit and did not reimburse the organization for unworked vacation days is proven, recovery of these amounts through the court is quite possible. Indeed, in accordance with Part 2 of Articles 248 and 391 of the Labor Code of the Russian Federation, damages caused to the employer may be recovered from the employee in court. And the employee’s refusal to voluntarily return these amounts can be considered illegal behavior and causing material damage and harm to the employer. By the way, the concept of harm as a special term is not disclosed in the Labor Code of the Russian Federation, and the Labor Code of the Russian Federation does not allow analogies with other branches of law. Therefore, to determine it, you should refer to explanatory dictionaries Russian language.

We draw attention to the wording of Article 137 of the Labor Code of the Russian Federation, according to which deductions by the employer “may be made” and not “must be made.” This is the employer's right, not his responsibility. Therefore, if the amount for deduction is insufficient, the employer either makes reimbursement of the amounts through the courts or refuses to make deductions.

The new version of Article 240 of the Labor Code of the Russian Federation states that the owner of an organization’s property or the legislator can limit the employer’s right to refuse to recover damages from an employee (Article 240 of the Labor Code of the Russian Federation). But no changes were made to Article 137 of the Labor Code of the Russian Federation regarding the rights of employers.

Will the employer, in practice, recover overpaid vacation through the courts? The employer, with the current practice of paying “gray” salaries, has other ways to retain the debt.

And with the current work of the courts, in the case of payment of “white” wages, the employer will most likely exercise his right not to collect amounts unreimbursed by the employee in court.

Summarizing what has been said, when deciding whether to withhold from the resigning employee’s salary the amounts of vacation pay received for unworked vacation days, the employer should be guided by the following.

1. An employee has the right to 28 days of basic paid leave only if he works for an employer during the working year continuously or cumulatively (Article 121 of the Labor Code of the Russian Federation). Consequently, if an employee goes on vacation “early” in accordance with Article 122 of the Labor Code of the Russian Federation (i.e., when he goes on vacation not for the time actually worked, but earlier), part of the vacation pay paid to him will be an advance for the upcoming work in the organization. This advance in case of dismissal of an employee before the end of the working year for which he has already used annual leave, returnable.

2. If the employee is not entitled to anything or the accrued earnings are not enough to pay off the debt, he should be officially invited to voluntarily reimburse the excess amount received.

An employee cannot be forced to deposit amounts of cash into the organization’s cash desk, including by delaying the issuance work book, registration of dismissal, etc. For any delays in completing the dismissal procedure, the employer bears financial responsibility in accordance with Article 234 of the Labor Code of the Russian Federation.

If an employee voluntarily (but without coercion) is ready to deposit cash into the organization’s cash desk, then they are reflected in accounting in the order specified in the letter of the Ministry of Finance of Russia dated October 20, 2004 No. 07-05-13/10 (see below).

3. If the employee refuses to voluntarily repay the debt, the employer may refuse to collect the debt or take legal action.

The employer's refusal to make deductions in each specific case must be justified. In case of a claim tax audits In terms of understating the tax base for income tax, you should protect yourself by the employer’s right to withhold, and the justification of the refusal (for example, due to insufficient amounts and reluctance to get involved in legal proceedings).

At first glance, everything is clear. But difficulties begin for the accountant during the calculation procedure already under point 1. In order to find out how much the employee must return to the employer, it is necessary to determine the number of days that he used in advance (i.e., without having work experience entitling him to vacation ). Vacation days can be calculated in different ways. After all, we have already said that an employee’s right to vacation arises after 11 months of work; the twelfth month of work is the vacation itself. For example, at the time of dismissal, the employee had worked 5 months of the working period. Agree that (28 - 28 / 12 x 5) is not at all equal to (28 - 28 / 11 x 5). And then 28/12 is it 2.33 or 2 days?

For an accountant and an employee, this is specific money and costs. Since the legislator did not consider it necessary to provide any details in this regard in the Labor Code of the Russian Federation, and the Rules for calculating average earnings only talk about calculating the daily amount, we will be guided by an old and well-drafted document, namely the Rules on Vacations. And although the effect of this document itself, as we have already said, raises some doubts, no one prevents you from using the methodology developed in it and consolidating it in your own accounting policy.

Firstly, paragraph 29 of the Vacation Rules states that proportional compensation for unused vacation is paid for a vacation lasting 24 working days and for a monthly vacation - in the amount of two days' average earnings for each month. Of course, this rule was in effect when vacation was calculated in working days, but on the other hand, these rules also applied when vacation was monthly. Now vacation is calculated in calendar days (Article 115 of the Labor Code of the Russian Federation). But we can simply talk about rounding rules, 2.33 is 2 if rounded to the nearest whole number.

Secondly, paragraph 28 of the Leave Rules states that employees dismissed for any reason who have worked for a given employer for at least 11 months, subject to credit towards the period of work giving the right to leave, receive full compensation. Therefore, if an employee has 11 months of work, it should be considered that his right to vacation arose in full size, and you don’t need to withhold anything for 1 unworked month. Actually, Article 121 of the Labor Code of the Russian Federation states that the time of the next vacation is included in the employee’s length of service. this enterprise and is taken into account when calculating vacation pay.

Does it follow from of this rule, that the denominator in the calculations should be 11 months? No, paragraph 29 of the Vacation Rules provides an example of calculating compensation for unearned vacation, from which it follows that the denominator should be 12 months of work. And in part 2 of clause 29 there is an example of calculating deductions, from which it also follows that the denominator for withholding should also include 12 months:

Thirdly, paragraph 35 of the Leave Rules stipulates that when calculating the full months for which an employee is entitled to leave, the month not fully worked is rounded up. Remaining days in excess of full months are rounded to full months according to the rounding rules:

• surpluses amounting to less than half a month are excluded from the calculation,
• surpluses amounting to at least half a month are rounded up to the nearest full month.

Of course, half a month is not entirely accurate. A month can have 28, 30 and 31 days. So take an average of 30 or 31 days per month? The problem will arise after 15 days worked by the employee. If we take a 30-day month, then the month will be rounded to 1, if 31, then to 0.

Fourthly, is it necessary to calculate the current one when withholding unworked vacation? average earnings at the time of dismissal or should the daily average that was received when calculating leave at the time of its provision be applied?

According to the author, the new average earnings are not calculated.* The moments when it is applied are listed in the Labor Code of the Russian Federation. In particular, calculus average salary(Article 139 of the Labor Code of the Russian Federation) is provided for when paying for vacations and paying compensation for unused vacation. In this case, deduction is made (Article 137 of the Labor Code of the Russian Federation) of amounts received in advance, the right to which the employee did not have. Therefore, the amount of overpaid money is determined based on the average earnings on the basis of which vacation pay was previously calculated.

Note:
* According to the methodologists of the 1C company, the new average earnings should be calculated because this is a new event, and not a recalculation of the “old” vacation pay, which was calculated and accrued quite reasonably.

Taxation of amounts withheld for unworked vacation

The most difficult issue for an accountant when deducting for unworked vacation is the issue of recalculating personal income taxes (NDFL) and the unified social tax (UST).

Let's figure out whether personal income tax needs to be recalculated.

Personal income tax

The object of personal income tax taxation is income received by the taxpayer (Article 209 of the Tax Code).

According to Article 53 of the Tax Code of the Russian Federation, the tax base is a cost, physical or other characteristic of the object of taxation. When determining the tax base for personal income tax, all income of the taxpayer is taken into account. If any deductions are made from the taxpayer’s income by order, by decision of a court or other authorities, such deductions do not reduce the tax base (clause 1 of Article 210 of the Tax Code).

This is where expert opinions begin to diverge. The legislator did not specify what deductions are meant by order of the taxpayer or authorities.

According to the author, legislators meant by order of a court or other authorities situations when an employee must pay alimony, compensation for material damage caused to the employer, etc. from his net income. Such payments, naturally, do not reduce the employee’s taxable income. That is, the text talks about deductions by order of the employee himself or authorized bodies. And the employer is not a body, he is tax agent according to personal income tax.

On the other hand, deductions for unworked vacation are also called deductions in Article 137 of the Labor Code of the Russian Federation. By the way, it also says that the employer has the right to withhold debt on unpaid advances issued on account of wages; unspent and unreturned advance payment for a business trip.

No one doubts that in the event of non-repayment of the debt, the amounts will become the employee’s income; personal income tax was withheld from them in a timely manner. Are advance amounts returned to the employer considered employee income? After all, if we go from the very definition of the concept of income received and the wording of paragraph 1 of Article 210 of the Tax Code that these amounts are not withheld by order of the employee or authorized bodies.

Despite the fact that the employee had the right to use vacation, in fact the vacation was not worked out by him. This means that part of the vacation pay was received by the employee in advance and the amount of income should be adjusted. The employer, by deducting excess unearned vacation pay from the employee’s last salary, reduces his taxable income received. Personal income tax should not be withheld from the returned amount; tax must be withheld from the amount of income remaining after deduction. Following this logic, it is necessary to adjust the personal income tax at the time of dismissal of the employee.

If the latest accruals are not enough to withhold the overpayment, and the employee voluntarily repays the debt, then he must deposit the amount of the debt minus the personal income tax attributable to the cash desk. In this situation, we recommend that the employee fill out an application addressed to the head of the organization with the consent to return the excessively withheld amounts of personal income tax from the income he did not receive (clause 1 of Article 231 of the Tax Code of the Russian Federation).

Is it necessary to recalculate income in the period when the employee was paid vacation pay in advance? No no need. When an employee receives income in the form of wages, the date of his actual receipt of income is recognized as the last day of the month for which the income was accrued (clause 2 of Article 223 of the Tax Code). Therefore, at the time of payment of vacation pay, the organization correctly withheld and transferred to the personal income tax budget the entire amount of vacation pay accrued and received by the employee in this reporting period.

Thus, in both cases, the organization (tax agent) withholds personal income tax from the employee (taxpayer) in the amount of the income he received in a specific period on an accrual basis.

UST

Should withholding for unworked vacation days reduce the tax base under the UST? The object of taxation for organizations that make payments to employees are payments and other remunerations accrued under an employment contract (clause 1 of Article 236 of the Tax Code of the Russian Federation). This amount of payments is the tax base (clause 1 of Article 237 of the Tax Code of the Russian Federation). Exceptions from the tax base are stipulated in Article 238 of the Tax Code of the Russian Federation, among which we draw attention to compensation for unused vacation upon dismissal of an employee (subclause 1, clause 1, Article 238 of the Tax Code of the Russian Federation).

There are two points of view on the issue of calculating the unified social tax for the amount of the returned vacation advance. Each of them is associated with a direct interpretation of the term “withholding” (as in the situation with personal income tax). That is, the choice of the accountant will depend on what decision he makes in the dilemma: what income or payment the employee received - in the full amount or truncated by deductions. So, two options to choose from:

1. Withholding reduces the unified social tax base.
2. Withholding does not reduce the tax base, since they are not directly named in Article 238 of the Tax Code as an exception to the tax base.

The UST accrued on previously received payments (as well as insurance contributions for compulsory pension insurance) must be recalculated (restored, offset against current payments). Initially, the organization had to pay the unified social tax on the day the payments were accrued (Article 242 of the Tax Code of the Russian Federation) from the entire amount of vacation pay accrued to the employee in advance for unworked time.

When calculating the last salary of a resigning employee, the organization must also accrue UST on the entire salary amount for the reporting period, minus any deductions made. She has the right to charge UST on a smaller amount of payments and thereby adjust the tax base. The UST adjustment is made as follows:

• the difference is determined between the amount of tax calculated on the basis of the tax base, calculated on an accrual basis from the beginning of the tax period until the dismissal of the employee (taking into account deduction from wages for unworked vacation days), and the amount of monthly advance payments paid for this period;
• if the difference is positive, then the corresponding amount of tax must be paid on time;
• if the difference is negative, then the overpaid amount is counted against upcoming tax payments.

This version, to which most experts are inclined, is also supported by the exclusion from the tax base under the Unified Social Tax of amounts accrued to the employee for unused vacation. After all, deduction for unused vacation is mirrored in relation to the situation of calculating compensation for unused vacation.

If the unified social tax is not adjusted, but the debt is withheld, it turns out that the employee is “gifted” with unified social tax and insurance contributions for compulsory pension insurance, accrued on the amount of income actually not received (as a result of withholding). An overpayment under the unified social tax is generated, the amount of which is written off as expenses that reduce the organization’s profit. When adjusting the Unified Social Tax, no overpayment of tax and arrears of income tax are generated.

Accounting for deductions for unworked vacation days

The Russian Ministry of Finance explained in letter No. 07-05-13/10 dated October 20, 2004 how to reflect the operation of withholding debt for vacation in accounting. It was devoted to considering the situation when an employee deposits a debt into the cash register voluntarily. In the letter, the Ministry of Finance provided a link to paragraph 11 of the Instructions on the procedure for drawing up and submitting financial statements, approved by order of the Ministry of Finance of Russia dated July 22, 2003 No. 67n, as if applying error correction rules to adjusting costs. The issue of tax revision was not considered.

Debit 20, 23, 25, 26, 44 and other production cost accounts Credit 70.

The expense account used is the one in which previously accrued vacation pay was taken into account.

The amount of funds contributed by the employee to the cash register should be reflected:

Debit 50 Credit 70.

The Ministry of Finance drew attention to the date on which the error is corrected in accounting. In a normal situation, entries to correct an error are made in the month of the reporting period in which it is discovered. If adjustments relate to the previous year, they should be reflected in entries on December 31 of the previous year if last year's accounts have not yet been submitted.

From the point of view of accounting methodology, the position of the Russian Ministry of Finance regarding the adjustment of costs seems correct. But the analogy with error correction is questionable. The excess money accrued at the time of vacation was no one’s fault; the employee had the right to receive it; he received it in advance according to the general rule of law. Most likely, the Russian Ministry of Finance would like employers to more correctly formulate the amount of expenses within the reporting year.

Let’s imagine that an employee quits in March, the balance sheet for last year has not yet been submitted, why is it necessary to adjust last year’s vacation expenses with entries on December 31? After all, in January, February and March, the employee was still earning seniority, which gave him the right to vacation. Breaking down deductions into adjustments for the previous year and 3 months of the current year is, of course, ideal from the point of view of accounting for expenses, but labor-intensive for an accountant. Therefore, the accountant will most likely reverse the entire cost amount in March from the cost accounts. However, in the author’s auditing practice, he also encountered “aerobatics” from an accountant.

Let's look at the calculation of deductions using a digital example.

Example

The employee quits on August 26, 2006 at will. In May 2006, he used annual leave of 28 calendar days for the working year from November 12, 2005 to November 11, 2006. His average daily earnings to pay for vacation in May amounted to 900 rubles.
For the days worked in August 2006, the employee was accrued wage in the amount of 20,000 rubles.
On the day of dismissal, Yakovlev worked in the working year (from November 12, 2005 to August 26, 2006) for 9 months and 15 days. According to rounding rules, this is 10 months giving the right to vacation (if the average month is considered 30 days).

We calculate unworked “vacation” days.

If the employee had worked for 11 months in rounded terms, the employer would not have collected anything from him. The employee worked for 10 months, we calculate the proportion, the denominator of which will be 12 working months.

Calculation of vacation days earned by an employee:

28 calendar days: 12 months in a working year x 10 months of work = 23.33 or 23 calendar days.

Withholding must be made 5 days in advance (28 - 23).

We multiply the unworked 5 days by the average daily earnings at the time of calculating the full vacation of 900 rubles. We reverse the amount received from the costs:

Debit 20 or other expense account Credit 70 - 20,000 rub. - wages accrued for August; Debit 20 Credit 70 - 4,500 rub. (red reversal) - advance payment for unworked vacation is withheld (5 days x 900).

Now imagine that in our example the employee quits in February. The balance sheet for last year has not yet been submitted. The employee’s last salary is calculated for February and on this date the debt for unworked vacation days is withheld from him. So what, reflect this operation through 91 accounts or December 31 last year? It turns out how many decisions an accountant has to make during a seemingly ordinary operation. There are so many possible answers to the questions that arise in the absence of clarity in current legislation. And how many possible claims from workers and inspectors there are.

There is only one way out - to describe the calculation algorithm used in a given organization and attach it either to the accounting policy or to the local regulatory act of the organization on this issue.

Accounting in 1C:Enterprise for deductions for unworked vacation

Let's look at examples of how operations for the return of unearned vacation pay are formalized in the economic programs of the 1C company using the example of "salary" configurations for 1C:Enterprise versions 7.7 and 8. Note that the methodologists of the 1C company adhere to the point of view according to which when When determining the tax base for personal income tax, the amount of deduction for unworked vacation days is not taken into account, and taxes (personal income tax, unified social tax) are not recalculated. By using the standard mechanisms of the program, you are insured against claims from the tax authorities. Thus, the programs are aimed at “cautious” taxpayers. But those who are ready to defend their position in court will be able to reflect their tax refund using “manual” operations. We will also talk about how to do this further.

"1C: Salary and Personnel Management 8"

Example 1

On May 22, 2006, employee N.N. Nikolaev was dismissed at his own request. From March 6 to March 20, 2006, he was granted leave for a period of 14 calendar days “in advance.”
N.N. Nikolaev was hired by the organization on January 17, 2006 and worked for 4 months and 5 days on the date of dismissal, using 14 (out of 28) calendar days of the next paid leave in March.

To calculate the deduction for unworked vacation days in the “Salary and Personnel Management” configuration, use the document “Calculation upon dismissal of an employee of an organization” (see Fig. 2).

We will make deductions for used but unworked vacation days.

The number of unworked vacation days is determined as follows:

• until the end of the year for which the vacation was used, there are 7 months and 25 days left (from 05/23/06 to 01/16/07), which is rounded up to 8 months;
• the number of vacation days attributable to unworked time will be 28 / 12 x 8 = 19 days;
• excluding unused days vacation, we get a used but unworked vacation period of 19 days. - 14 days = 5 days

When the "Retain for used advance" checkbox is checked, we will indicate the "Calculation procedure" "by calendar days" and the number of days - 5.

Based on the results of salary calculation for May 2006, we will create a pay slip for the dismissed employee (see Fig. 3).

In the “Individual UST Card”, deduction for unworked vacation days also does not affect the accrual base.

In column 2 in May 2006, the base will be equal to 18,190 rubles.

If the user decides to return the amounts of withheld personal income tax and considers that deductions for unworked vacation days reduce the tax base under the Unified Social Tax, then in the standard configuration the previously entered document “Accrual of vacation to employees of organizations” should be reversed. And then enter a new one, with a changed number of vacation days. The new vacation accrual amount will be generated taking into account unworked vacation days.

"1C: Salary and Personnel 7.7"

In "1C: Salary and Personnel 7.7", when dismissing an employee, you must create a document "Dismissal Order" and check the box in the "Deduction for non-negotiable leave" attribute.

Based on the document “Dismissal Order”, we will enter the document “Vacation Accrual”, with the calculation type “Deduction for unworked vacation days”.

According to the pay slip for May 2006, from the income of employee N.N. Nikolaev was deducted for unworked vacation days, which does not affect the amount of calculated personal income tax.

In the “Individual UST Card” the accruals for May were not reduced by the amount of deduction for unworked vacation.

If the user decides to return the amounts of withheld personal income tax and considers that deductions for unworked vacation days reduce the tax base for the Unified Social Tax, then in the standard configuration the previously entered “Vacation Accrual” document should be used and using the “Correct” button in the correction document, set the end date of the vacation taking into account the unworked period.

After completing the calculation in the tax card "1-NDFL", the tax debt owed to the tax agent will be the amount of the recalculated personal income tax.

At the same time, in the “Individual UST Card” the accrual base is also calculated taking into account the adjustment of the document.

In conclusion, I would like to once again draw the attention of readers to the fact that currently there are several points of view on the problems discussed in this article, since there are no corresponding explanations from the authorized bodies. Therefore, having accepted this or that point of view, you must be ready to defend it - and now you have arguments.

Before we begin to consider the issue of deduction for unworked vacation days upon dismissal, I would like to clarify what is meant by days not worked, how they are considered and what rights and obligations the employer has.

So, according to Part 2 of Art. 122 Labor Code Russian Federation, the initial right to annual leave accrues to an employee whose work experience at a given enterprise is 6 months.

For certain categories of employees, this right arises earlier than the specified 6 months. For example, the spouse of a military man can take leave simultaneously with the leave of her spouse, despite the number of months she has worked (Clause 11, Article 11 of the Law “On the Status ...” of May 27, 1998 No. 76-FZ). For information on situations where leave is provided in advance, see the article Duration of annual basic paid leave.

There may be a situation where an employee who worked part-time used his entire vacation against him and then quit. In this case, he has unworked but paid days, for which the employer has the right to withhold payment.

The basis for this statement is:

1. Paragraph 5 hours 2 tbsp. 137 of the Labor Code of the Russian Federation, according to which the employer has the right to withhold for vacation used in advance upon dismissal.
2. Clause 28 of the rules, approved. NKT of the USSR dated April 30, 1930 No. 169 (hereinafter referred to as rules No. 169), which established the procedure for paying unused vacation days to a resigning employee. According to this norm, full payment occurs after working for 11 months. If the length of service is less, the calculation is made in proportion to the months worked.

How to calculate advance holiday pay

The procedure for calculating vacation pay and compensation for unused vacation is set out in the regulations approved. Decree of the Government of the Russian Federation dated December 24, 2007 No. 922.

The calculation schemes for these payments are similar: they have the same variables, the value of which is determined by the same terms (for example, the average earnings in both cases include all salaries and bonuses received from a given employer).

Advance vacation pay is those that were received in excess of those required by length of service, those that are subject to return. They are calculated using the following formula:

Dr = (Dio - Dpo) × SDZ,

where: Dr is the employee’s debt;

Dio - vacation days used;

Dpo - vacation days to which the employee is entitled due to his length of service;

SDZ - average daily earnings.

Example

Ivanov I.I., who began performing his labor duties on April 3, 2017, after 7 months went on a full 28-day vacation, during which he wrote a letter of resignation of his own free will.

How many days of vacation did he receive in advance, for how many days does the employer have the right to demand a refund of vacation pay? Let's calculate:

1. At the time of going on vacation, Ivanov I.I. had 7 months of work experience. Theoretically, if he had not used the vacation, the employer would have to pay compensation for 7× 2.33 = 16.31 days. That is, Ivanov has an unconditional right to 16.31 paid days.
2. The remaining days are calculated as follows: 28 - 16.31 = 11.69. These days were provided in advance. The employer has the right to make a deduction upon dismissal for the vacation provided in advance in the amount of 11.69 days.

Deduction for vacation used in advance upon dismissal: features

The specifics of deducting debt from an employee arising in connection with advance leave include the following:

1. This situation is the basis for issuing an order to withhold wages to close the debt. The employee’s written consent to this is not necessary, but there should not be his disagreement with the making of such deductions (Part 3 of Article 137 of the Labor Code of the Russian Federation).
2. No more than 20% of the total amount is taken from the salary (Part 1 of Article 138 of the Labor Code of the Russian Federation). The remaining part of the debt can be paid by the employee voluntarily to the company’s cash desk (appeal ruling of the Lipetsk Regional Court dated April 3, 2013 in case No. 33-810/2013).

At the same time, there is a judicial position according to which it is allowed to deduct more than 20% from wages to pay off debt (appeal ruling of the Chelyabinsk Regional Court dated March 31, 2015 in case No. 11-3194/2015).

1. Such deduction can be made if the dismissal occurred at the request of the employee, by agreement of the parties, due to the expiration of the contract and in other situations not specified in paragraph. 4 hours 2 tbsp. 137 Labor Code of the Russian Federation.
2. In court, the debt (vacation pay) for vacation provided in advance is not collected (decision of the Supreme Court of the Russian Federation dated September 12, 2014 in case No. 74-KG14-3).
3. The employer can withhold 20% to repay the debt, including compensation for unused additional leave, to which the employee is entitled due to harmfulness, severity and special working conditions, since vacation pay is also a salary (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 02/07/2012 No. 11709/11).

How to keep the vacation provided in advance

Based on the above, we will formulate an algorithm for the employer’s actions to withhold vacation pay in advance upon dismissal of an employee:

1. Calculate the number of vacation days granted but not worked and, at the same time, the amount of vacation pay overpaid.
2. Warn the employee about the amount of the upcoming deduction. The extent to which this will be done, 20% or more, is decided by the head, since it was noted above that the judicial position on this issue is ambiguous.
3. Issue an order to withhold from the calculated amount in favor of repaying the debt arising as a result of vacation granted but not worked.
4. On the last working day, make a full settlement with the resigned employee.

It is possible that the withheld amount does not cover the debt completely (this is quite likely if only 20% or less was deducted from the settlement amount). Then the employer has 2 options:

• come to an agreement with former employee on his voluntary contribution of the missing amount to the enterprise’s cash desk (or to his current account);
• write off (forgive) a debt.

In what cases is it impossible to deduct for unworked vacation days?

Situations when deduction for unworked vacation is not made are listed in paragraph. 4 hours 2 tbsp. 137 Labor Code of the Russian Federation. This dismissal is a result of:

• the employee’s refusal to transfer to another job provided to him by the employer due to deteriorating health;
• the employer does not have a job that meets the requirements of a medical certificate to transfer the employee to it;
• liquidation of individual entrepreneurs, organizations;
• carrying out regular measures to reduce the number of personnel;
• change of owner of the enterprise (this rule applies only to the executive body and the chief accountant);
• conscription of an employee for military service;
• reinstatement of a former employee to this position by decision of Rostrud or the court;
• recognition by the medical board of the employee’s total disability;
• death of an employee or employer - individual entrepreneur or other individual;
• a catastrophe, natural disaster or other emergency situation.

Thus, deduction for vacation upon dismissal is not always possible. Restrictions are established based on the grounds for termination labor relations and the amount of possible deductions. It is impossible to collect the debt for vacation granted in advance through the courts.

Deduction for unworked vacation days upon dismissalis not always made by the employer and not in full. Why this happens and how to correctly calculate the amount of deduction, you will learn from our material.

During his vacation, he received a more lucrative job offer and immediately after returning from vacation, he quit the plant.

Thus, by the time of his dismissal, P.N. Ptichkin had earned only half of his legal leave: 14 days (6 months × 28 days / 12 months), and used all 28 days. There were 14 vacation days unworked at the time of dismissal (28 - 14).

Since the employee received the full amount of vacation pay before going on vacation, by the time of dismissal he had a debt to the company for the 14 days of vacation paid in advance.

IMPORTANT! The right to vacation for the first working year arises after six months of work in the organization (Article 122 of the Labor Code of the Russian Federation). Subsequent vacations are issued according to the approved schedule.

What the lack of a vacation schedule in a company can lead to, see the material .

"Vacation" rights and obligations

Upon termination of the employment relationship, the employer must perform many mandatory actions regulated by labor legislation. Among them is the obligation to give the employee everything he earned by the time of dismissal.

Vacation payments are one of the elements of the final settlement with a resigning employee. Their composition depends on how many vacation days have been accumulated and whether the employee has exercised his right to vacation in the current period (Article 127 of the Labor Code of the Russian Federation).

For information on the circumstances affecting the calculation of vacation days upon termination of an employment contract, see the material .

In addition to this obligation, the employer has the right to withhold from the resigning employee’s income the amount of advance vacation pay (Article 137 of the Labor Code of the Russian Federation).

This right may not be exercised in all cases. If the dismissal of an employee occurs on the grounds listed in Art. 137 of the Labor Code of the Russian Federation, it will not be possible to withhold overpaid vacation pay from him. For example, such a prohibition on retention applies to the situation of dismissal due to staff reduction or closure of a company, as well as in other cases provided for by law.

In addition, the employer can deal with the employee’s debt in a different way. We'll talk about this in the next section.

Is it possible to do without deductions?

You can avoid deductions by signing a debt forgiveness agreement. Forgiving an employee’s debt means not raising the issue of the existence of a debt and not demanding its repayment.

In everyday life, debt settlement between individuals by forgiving it, there are no consequences for both parties to the transaction. In a situation where one of the parties acts entity, debt forgiveness entails additional paperwork and also requires adjustments to tax obligations.

At the beginning of the procedure for forgiveness of vacation debt, you will need to draw up a document that reflects the will of the parties to repay the debt. Such a document may be an agreement on debt forgiveness for vacation overpayment.

The preparation of such a document is similar to similar agreements drawn up in the normal course of business. After the title of the document, the date and place of its preparation are indicated, followed by the parties to the agreement and its main text. It may contain the following content:

“...The employer exempts the employee from repaying the debt for 14 unworked vacation days in the amount of 10,025 (ten thousand twenty-five) rubles, which arose in connection with his dismissal under clause 3, part 1, art. 77 of the Labor Code of the Russian Federation until the end of the working year, towards which he used annual paid leave...”

The final elements of the agreement are the details and signatures of the parties.

Read about the next steps of debt forgiveness for unearned vacation pay in the next section.

Tax nuances of vacation advance forgiveness

The debt forgiveness agreement signed by the parties automatically triggers the tax adjustments associated with this event.

For the employee, recalculation of tax obligations does not lead to material losses - the tax on his income in the form of a forgiven debt has already been withheld when he was paid vacation pay. Changing the status of the amount received from vacation pay to a bonus from the employer (debt forgiveness) does not have an impact on personal income tax obligations.

What to do with personal income tax if an employee voluntarily repays the debt for advance vacation pay, see the material .

The employer's situation is different. In connection with the “act of goodwill” in relation to the employee, the income tax will have to be recalculated. In this case, it becomes necessary to exclude from expenses the amount of unearned vacation pay (clause 1 of Article 252, clause 49 of Article 270 of the Tax Code of the Russian Federation). Tax officials consider such expenses to be economically unjustified (letter from the Federal Tax Service for the city of Moscow dated June 30, 2008 No. 20-12/061148).

With regard to the amount of unearned vacation insurance premiums accrued, it should be noted that there are no grounds for their recalculation - they were accrued within the framework of the labor relationship. The legality of their inclusion in tax expenses is not disputed by officials of the Ministry of Finance (letter dated April 23, 2010 No. 03-03-05/85).

Methodology for calculating advance vacation pay

If the employer is not inclined to be generous and forgive the employee unearned amounts, the accounting department will have to work hard. The algorithm for their calculation includes the following steps:

• determining the number of unworked vacation days;
• clarification of information about average daily earnings;
• calculation of the amount of advance vacation pay.

Determine the number of days of unworked vacation. For calculation we use the formula:

CD no = CD io - [CD O / 12 months × KM],

KD no and KD io - the number of vacation days, unworked and used, respectively;

KD O— duration of the next vacation;

KM - the number of months of work at this enterprise.

For example, during his work, an employee of the company did not use part of his vacations in full, but in the working year before his dismissal, his vacation was in full accordance with the vacation schedule. As a result, at the time of his dismissal, he had “two-way” vacation pay: not paid off for the previous period (15 days) and advance pay for the unfinished current year (10 days). In this situation, the employer, instead of deducting for unworked vacation days, is obliged to give the employee compensation for unused days.

If the employee had not had incompletely used vacations in previous periods, then, based on the results of this calculation stage, the number of unworked vacation days would be 10, and to calculate advance vacation pay, the accountant would have to proceed to the next step of the calculation algorithm.

We clarify information about earnings and calculate unearned vacation pay.

This stage is associated not only with calculations, but also with clarifying the available information. The accountant will have to provide information about the average daily earnings, based on which the employee was paid for vacation days. This indicator has already been calculated earlier (before the employee went on vacation).

The amount of vacation pay for the unworked vacation period (∑O nd) is calculated based on the number of days of unworked vacation (CD no) and average daily earnings (AD) according to the formula:

∑O nd = CD but × NW.

Additional adjustments will be needed if, during the employee’s rest period, all employees of the company received a salary increase. The date of this event is of particular importance - the vacation period is calculated from it, the payment for which will have to be adjusted by an increasing factor.

The sequence of actions in this situation is as follows: unworked days are counted from the end date of the vacation, and it is determined how many days fall in the time period after the salary increase (and how many before this event). The average daily earnings for these periods will be different due to the application of the adjustment factor.

The amount of unearned vacation pay will be calculated using a complicated formula:

∑O nd = CD 0 × SZ 0 + CD 1 × SZ 1,

KD 0 and KD 1 - unworked vacation days before and after the salary increase;

SZ 0 and SZ 1 - average daily earnings, calculated for vacation pay and increased by a factor, respectively.

Example of calculating advance holiday pay

The manager of Breeze LLC, R.N. Gavrilov, resigns after using this year vacation of standard duration (28 days). At the time of the severance of the employment relationship with the employee, the accountant of Breeze LLC had the following information:

• number of vacation days received in advance from the employer - 12;
• Average daily earnings for calculating vacation pay are 1,120 rubles.

Additional terms:

• while the employee was on vacation, the company increased salaries - the increase occurred on May 20 and affected the entire work team;
• R.N. Gavrilov’s vacation ended on May 30;
• the employee’s salary before and after the increase was 25,000 and 28,000 rubles. respectively.

The accounting specialist began the calculation by determining the unworked vacation days falling during the period after the salary increase. Of the 12 advanced vacation days, the period after the increase accounted for 11 days (from May 20 to 30); unworked rest days, paid without taking into account the increasing factor, accounted for 1 day (12 - 11).

The accountant made the following calculation using the formula from the previous section:

∑O nd = 1 day × 1,120 rub. + 11 days × = 14,918.40 rub.

At the time of R.N. Gavrilov’s dismissal, this amount amounted to his debt to the employer as received, but not worked out.

We will tell you in the next section how much of this debt will be returned to the employer.

For information on how leave arrangements may change, see .

Deduction for used vacation upon dismissal

The amount of vacation pay not worked by the employee and the amount that can be withheld from his income obtained as a result of the calculation do not always coincide.

IMPORTANT! The amount of deductions is limited by law (Article 138 of the Labor Code of the Russian Federation) and amounts to 20% of the income received by the employee. In some cases, it is allowed to exceed the established limit to an amount not exceeding half of the income received.

It should be taken into account that in addition to advance vacation pay, the employee may have other obligations (under writs of execution, in connection with compensation for damage, etc.). Then they, together with advance vacation pay, should not exceed the specified limit on the amount of deduction.

The accountant needs to find out what part of the calculated amount of unearned vacation pay can be deducted from the employee’s income. If he has no other deductions, and the amount of vacation pay received in advance is less than 1/5 of the amount received upon dismissal, no problems arise - the advanced vacation pay can be withheld in full.

If established by Art. 138 of the Labor Code of the Russian Federation, the restriction does not allow the employer to reimburse the full specified amount, you can try to do the following:

• ask the employee to voluntarily repay the remaining balance of the debt;
• apply to the judicial authorities to resolve the issue of collection (Articles 382-383 of the Labor Code of the Russian Federation);
• forgive the balance of the debt.

Each of these methods has its own nuances. For example, voluntary repayment of debt entails recalculation of personal income tax, and forgiveness of debt leads to adjustment of income tax obligations.

The judicial way of resolving the issue, as practice shows, is not always in favor of the employer. For example, in the appeal ruling Supreme Court Republic of Karelia dated January 11, 2013 No. 33-111/2013, the court defended the interests of the employer, and in the resolution of the Presidium of the Rostov Regional Court dated September 15, 2011 No. 44g-109 on a similar issue, the opposite point of view was expressed.

Find out what the Labor Code of the Russian Federation establishes regarding deductions from wages from this.

Results

Deduction for unworked vacation upon dismissal is made from the final payment amounts received by the employee. In some legislative established cases such deductions are not permitted or limited.