Calculation of deduction for vacation upon dismissal. Calculation and accounting of withholding payment for unworked vacation days upon dismissal. Under what conditions do advance days appear

produced by the employer is not always and not in full size. Why this happens and how to correctly calculate the amount of retention, you will learn from our material.

Vacation types:

• next paid;
• additional (paid);
• study leave;
• pregnancy and childbirth, etc.

In our case, only one type of vacation is considered - the next one. The amount of paid vacation pay can be represented by the formula:

Average daily earnings (SDZ) * Number of vacation days (ColD).

The main task here is to calculate SDZ. To calculate it, the accrued salary for 12 months before the vacation is taken, divided by the number of days worked.

If the employee's length of service in the organization is less than a year, the ratio of the number of months from the date of admission to the actual hours worked (number of days) is taken.

The amount of accrued salary includes all payments included in the wage system. That is, everything social payments, compensation for travel or meals, do not participate in the calculation of average earnings for the period.

AT general view The vacation pay formula looks like this:

In the case when the employee has worked all the days for the period in full, the formula for calculating the number of working days looks much simpler: the average number of calendar days is 29.3 times 12 months.

Under what conditions can unworked vacation days appear

The Labor Code determines that the opportunity to receive annual paid leave for each employee arises only after he has been working in the company for at least 6 months. And he can immediately take the full period. However, if in the future he has a desire to make a dismissal, then he will be required to return cash, which were issued for unworked rest days.

The law obliges each employer to draw up and put into effect a vacation schedule for the future period before the start of the new year. If an employee goes on vacation immediately at the beginning of the year, then a precedent may be created that the vacation will actually be accrued in advance for the entire next year.

Indeed, before letting the employee go to rest, the personnel officer calculates the date by which the vacation time is provided. In this case, the rule applies that each full month entitles you to 2.33 days of paid rest.

In addition to the main period, additional leave may still be granted by law or internal regulations.

Since the employee has already been granted rest, but in fact these days have not yet been worked out, upon dismissal, the accountant will have to make withholding vacation pay upon dismissal used in advance.

When unearned vacation pay appears: an example

The following example will help to understand the mechanism for the appearance of unearned vacation pay:

Graduate technical university Ptichkin P. N. got a job at a helicopter plant on 07/01/2017, and in January 2018 he received the right to go on vacation (paragraph 2 of article 122 of the Labor Code of the Russian Federation) and took advantage of this opportunity. The duration of his vacation was 28 calendar days (Article 115 of the Labor Code of the Russian Federation).

Learn more about the provision of leave and its duration from the article "Annual paid leave under the Labor Code (nuances)".

During his vacation, he received more profitable proposition about work and immediately after leaving the vacation he quit the factory.

Thus, by the time of his dismissal, Ptichkin P.N. 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 by the time of dismissal (28 - 14).

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

The right to leave 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 holidays completed according to the approved schedule.

Cases when leave can be granted to an employee in advance

Such a situation may arise, for example, when an employee has just come to work in an organization, and he is granted leave before he has worked in it for six months. According to the Labor Code of the Russian Federation, general rule leave is granted six months after the start of the employee's work in the company, however, if the employer does not mind, leave can be granted earlier. Obviously, in this case, the employee has not yet completed his vacation days, so if he quits before he does, the employer will be in the red.

In addition, if a trusting relationship has developed between the employee and the employer, the employee, if desired, can receive leave in advance immediately for the next year. In this case, the employer reasonably expects that the employee will work for him next year and there won't be any problems. Accordingly, if an employee quits, which he can do at any time, this also creates problems.

Withhold for non-worked days or not

To deduct previously issued vacation pay from the salary is a right, and not a mandatory action for the employer.

When dismissing such an employee, the administration has the right to decide not to deduct extra amounts from him.

At the same time, the format of this decision is not regulated. You can simply tell the employee that you do not need to return extra vacation pay. But since in the event of a disagreement, a verbal agreement cannot be confirmed in any way, it is better to document such a decision. For example, you can sign a bilateral agreement that the company forgives the employee's debt to him for paid vacation pay.

In addition, in such a document it is also desirable to show the amount that is “forgiven” to the employee, as well as the number of vacation days for which it is accrued. At the end of the agreement, the details of each party, signature and seal (if any) must be affixed.

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

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

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

The employee may decide at will to return the amount in excess of the amount received by him. In this situation, the accountant will not have to deduct for unworked vacation days upon dismissal.

When does the holiday pay ban apply?

Unnecessarily paid vacation pay for vacation received in advance can be withheld by the employer from wages retiring employee, except in a few cases. So, according to par. 4 hours 2 tbsp. 137 of the Labor Code, withholding upon dismissal for leave provided in advance cannot be made if the employee leaves due to:

• refusal to transfer to another job for medical reasons or because the employer does not have such an opportunity;
• downsizing of the employer or its liquidation, as well as a change of ownership, which led to the dismissal of the company's management;
• reinstatement by a court decision (labor inspectorate) of an employee who previously worked in this position;
• conscription for military service (including alternative);
• recognition of an employee as disabled for medical reasons;
• force majeure recognized Russian government as such and not allowing to continue working;
• death of the employer.

If at least one of the above grounds takes place, the employer is not entitled to withhold for leave upon dismissal. If the employee leaves for other reasons, then the employer has every reason to make a deduction for the used vacation from his salary upon dismissal. Withholding, according to part 3 of Art. 137 of the Code, must be made within a month after the expiration of the period determined for the employee to repay the debt that has arisen in the form of overpaid vacation pay.

It is also not allowed to withhold compensation for unused vacation upon dismissal, for example, in the event of a subsequent reinstatement of an employee in a position, since neither the Labor Code nor any other normative act does not contain such grounds for deduction from wages. Moreover, previously paid compensation does not give the employer the right to refuse to grant leave to the reinstated employee.

Methodology for calculating advance vacation pay

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

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

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

KDno \u003d KDio - [KDo / 12 months. × KM],

KDno and KDio - the number of days of vacation, unworked and used, respectively;

KDo - the 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 “bilateral” vacation pay: past period(15 days) and advance for the unfinished current year (10 days). In this situation, the employer, instead of withholding for unworked vacation days, is obliged to issue compensation to the employee for unused days.

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

We clarify information about earnings and calculate unearned vacation pay.

This stage is connected not only with calculations, but also with the clarification of the available information. The accountant will have to raise information about the average daily earnings, based on which the employee was paid vacation days.

The amount of vacation pay for the unworked vacation period (∑Ond) is calculated based on the number of days of unworked vacation (KDno) and average daily earnings (SZ) using the formula:

∑Ond \u003d KDno × SZ.

Additional adjustments will be needed if during the rest period of the employee all employees of the company have increased salaries. The date of this event is of particular importance - the vacation period is counted from it, the payment for which will have to be adjusted by a multiplying factor.

The sequence of actions in this situation is as follows: unworked days are counted from the vacation end date, and it is determined how many days fall on 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 an adjustment factor.

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

∑Ond = KD0 × SZ0 + KD1 × SZ1,

KD0 and KD1 - unworked vacation days before and after the salary increase;

СЗ0 and СЗ1 - average daily earnings calculated for vacation pay and increased by a coefficient, respectively.

An example of calculating advance vacation pay

The manager of Breeze LLC Gavrilov R.N. is resigning, having used a vacation of standard duration (28 days) this year. At the time of the break labor relations with an employee, the accountant of Breeze LLC had the following information:

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

Additional terms:

• while the employee was on vacation in the company, salaries increased - the increase occurred on May 20 and affected the entire workforce;
• the end of the vacation of Gavrilov R.N. fell on May 30;
• the employee's salary before and after the increase amounted to 25,000 and 28,000 rubles. respectively.

The accounting specialist began the calculation by determining the unworked vacation days that fall on the period after the increase in salaries. Of the 12 advance vacation days, 11 days fell on the period after the increase (from May 20 to May 30), 1 day (12 to 11) falls on unworked rest days paid without taking into account the increasing coefficient.

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

∑ Ond \u003d 1 day × 1,120 rubles. + 11 days × = RUB 14,918.40

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

How to keep overpaid vacation pay upon dismissal: features

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

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.

In the event that the amount of overpayment of vacation pay when making the final settlement with the employee upon dismissal exceeds the maximum allowable amount, he can voluntarily pay off the debt that has arisen. The refund can be made by depositing cash through the company's cash desk or transferring it to its current bank account.

If the dismissed employee does not do this, the employer will be able to claim the resulting debt from him only through the courts. Judicial practice on the issue of collecting debt from an employee due to the inability to deduction for leave upon dismissal upon dismissal is very contradictory.

It should be noted that in addition to advance vacation pay, the employee may have other obligations (under writ 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, there are no problems - advanced vacation pay can be withheld in full.

For the reporting period when the employee was on vacation, submit an updated calculation of insurance premiums. Do not reflect the recalculation amount in the current reporting period. Such clarifications are in the letter of the Federal Tax Service of October 11, 2017 No. GD-4-11 / 20479.

In such cases, the fund does not require submitting an updated calculation in the form 4-FSS. After all, in this situation, vacation pay contributions were calculated correctly. This position is expressed in the letter of the FSS dated November 17, 2011 No. 14-03-11 / 08-13985. In the calculation of 4-FSS for the reporting period (for example, six months, nine months) in which the dismissal occurred, reduce the total amount of assessed contributions by the amount of the reversed contributions.

If the employee took a walk last year and all reporting has already been submitted, then it is necessary to submit clarifications on personal income tax.

In the updated certificate in the form 2-NDFL, reflect the amount of vacation pay minus overpaid vacation pay for unworked vacation days. In the help lines dedicated to the calculated, withheld and listed personal income tax, indicate the indicators after the recalculation. Such clarifications are in the letter of the Federal Tax Service of September 13, 2012 No. AC-4-3 / 15317.

Upon dismissal, the date of receipt of income is the last day of work (clause 2 of article 223 of the Tax Code). Therefore, reflect the last salary of an employee in the form of 2-NDFL for the current year in the month of dismissal (in the amount actually accrued, without reducing the amount of vacation pay withheld).

Return the personal income tax to the employee who was withheld from overpaid vacation pay

When paying vacation pay, they were withheld and transferred to the personal income tax budget. Therefore, personal income tax accrued and withheld from the amount of overpaid vacation pay must be returned to the employee in accordance with the provisions of Article 231 of the Tax Code.

For the year in which the employee was on vacation, submit an updated calculation of insurance premiums. Do not reflect the recalculation amount in the current reporting period. Such clarifications are in the letter of the Federal Tax Service of October 11, 2017 No. GD-4-11 / 20479.

In such cases, the fund does not require submitting an updated calculation in the form 4-FSS. Indeed, in this situation, vacation pay contributions were calculated correctly (FSS letter dated 11/17/2011 No. 14-03-11 / 08-13985). In the calculation for the period (for example, I quarter, six months, nine months) in which the dismissal occurred, reduce the total amount of assessed contributions by the amount of the canceled contributions.

If the employee does not agree to return the money used in advance

If the amount to be deducted from the salary of the person who wants to quit is not enough, then you can ask the employee to contribute the missing money on a voluntary basis. If the latter does not agree to return the funds paid to him for the unworked period, you can go to court. However, here the opinions of lawyers differ.

The employer also has the right to refuse to withhold unearned funds if the employee quit and refused to voluntarily pay the debt.

Refusal to withhold must be justified by the head in case of tax audits. The justification may be the lack of the amount to be returned from the salary.

Video: Calculation of vacation pay upon dismissal

Under what circumstances does the right to withholding for leave arise upon dismissal

Six months after the start labor activity from a specific employer (and sometimes even earlier - by agreement of the parties or on the basis of part 3 of article 122 of the Labor Code of the Russian Federation), the employee receives the right to his first annual leave. According to Art. 115 of the Code, the duration of paid leave cannot be less than 28 days.

Advance leave upon dismissal before working for 12 months gives the employer the right to withhold for leave upon dismissal. After all, vacation pay is calculated for the entire period, that is, for 28 days, which are due to the employee once a year, but in this case the year has not been worked out, although the vacation has already been used.

When does the holiday pay ban apply?

Unnecessarily paid vacation pay for vacation received in advance, the employer may withhold from the salary of the resigning employee, with the exception of a few cases. So, according to par. 4 hours 2 tbsp. 137 Labor Code, withholding upon dismissal for the leave provided in advance cannot be made if the employee leaves for the reason:

• refusal to transfer to another job for medical reasons or because the employer does not have such an opportunity;
• downsizing of the employer or its liquidation, as well as a change of ownership, which led to the dismissal of the company's management;
• reinstatement by a court decision (labor inspectorate) of an employee who previously worked in this position;
• conscription for military service (including alternative);
• recognition of an employee as disabled for medical reasons;
• force majeure, recognized by the Russian government as such and not allowing to continue working;
• death of the employer.

If at least one of the above grounds takes place, the employer is not entitled to withhold for leave upon dismissal. If the employee leaves for other reasons, then the employer has every reason to make a deduction for the used vacation from the employee’s salary upon dismissal . Withholding, according to part 3 of Art. 137 of the Labor Code, must be made within a month after the expiration of the period determined for the employee to repay the debt that has arisen in the form of overpaid vacation pay.

If we talk about deduction for unused vacation upon dismissal, then it is not made, because vacation pay in this case was not paid to the employee. Moreover, before dismissal, the employee is provided with appropriate compensation, calculated according to the rules on regular and additional holidays, approved by the People's Commissariat of Labor of the USSR on April 30, 1930 No. 169 (hereinafter referred to as the Rules).

According to Art. 28 of the Rules, compensation is paid:

1. For a whole vacation, if the employee worked for 11 or more months or worked for more than 5.5 months and was fired due to the liquidation of the employer company, conscription for military service, or recognition as unfit for medical reasons.
2. Proportional to actual hours worked.

That is, when calculating compensation for vacation that was not used before dismissal, overpayment of vacation pay is not obtained, because they were not previously paid, while compensation payments are calculated according to actual data.

IMPORTANT! Also not allowed withholding compensation for unused vacation upon dismissal, for example, in the event of a subsequent reinstatement of an employee in a position, since neither the Labor Code nor any other regulatory act contains such grounds for deduction from salary. Moreover, previously paid compensation does not give the employer the right to refuse to grant leave to the reinstated employee.

The procedure for withholding vacation pay upon dismissal

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Withholding for unworked vacation days upon dismissal must be made by the employer, subject to the restrictions established by Art. 138 of the Labor Code of the Russian Federation. According to part 1 of the article, their amount should not exceed 20% of the amount of wages paid, even if the employee himself does not object to the deduction of a larger amount.

In the event that the amount of overpayment of vacation pay when making the final settlement with the employee upon dismissal exceeds the maximum allowable amount, he can voluntarily pay off the debt that has arisen. The refund can be made by depositing cash through the company's cash desk or transferring it to its current bank account.

If the dismissed employee does not do this, the employer will be able to claim the resulting debt from him only through the courts. Judicial practice on the issue of collecting debt from an employee due to the impossibility of making a withholding for unworked vacation days upon dismissal is very contradictory.

Don't know your rights?

Thus, some judges believe that deduction for unworked leave upon dismissal cannot be made dependent on whether the employee has sufficient income to cover such debts in the form of wages paid before dismissal (appeal ruling Supreme Court Republic of Karelia dated January 11, 2013 No. 33-111/2013).

Others are sure that if upon dismissal it is not possible to withhold the entire amount paid for unworked vacation, then the employer cannot demand repayment of such a debt from the dismissed employee. Unless, of course, we are talking about a counting error in the calculation or dishonesty of the employee himself - in these cases, the employer has such a right by virtue of Part 2 of Art. 137 of the Labor Code (decree of the Presidium of the Rostov regional court dated September 15, 2011 No. 44g-109).

How to calculate the amount of overpaid vacation pay upon dismissal

The calculation of deduction for leave upon dismissal is made using the following formula:

UDNO = (DFO - DOS) × WHSD,

UDNO - deduction for the days of unused vacation;

DFO - the number of actually taken vacation days;

DOS - the number of vacation days laid down in accordance with the vacation experience;

WHSD is the average daily earnings calculated at the time of payment of vacation pay.

Stages of calculation of intermediate indicators:

1. To calculate the DOS indicator, it is necessary to divide by 12 the number of vacation days required by law or an employment contract for a working year (minimum - 28 days). Then the resulting value should be multiplied by the number of actually worked months. If the received number of days turned out to be a fractional number, then it is rounded in favor of the employee (letter of the Ministry of Health and Social Development "On the procedure for determining the number of vacation days ..." dated 07.12.2005 No. 4334-17).
2. WHSD is calculated in the manner specified in Part 4 of Art. 139 of the Code, taking into account the adjustment for the hours actually worked, if it does not reach 12 months (clause 6 of the regulation, approved by the government decree “On the features of the procedure for calculating the average wage” dated December 24, 2007 No. 922).

So, the deduction for used in advance, but unworked leave is made in the amount of no more than 20% of the earnings paid upon dismissal. The amount of debt that exceeds the amount of actual deduction is repaid by the dismissed person on his own or collected by the employer through the court. It is important to remember that in some cases there is a ban on deductions upon dismissal (for example, due to the liquidation of the employer).

Labor legislation guarantees every worker the right to an annual rest from his labor activity. Leave must be granted to an employee in the amount of at least 28 days per 1 working year.

How holidays appear in advance

As a general rule, a new employee is provided. But by agreement with the employer, this period can be reduced. That is, an employee who has not worked for 1 year, for which a vacation is due, receives paid rest in advance.

As a result, if an employee has taken vacation in advance and leaves, he must return the vacation pay received.

The same situation may arise in subsequent years of work, when the law does not at all regulate the period of necessary work for the year to receive full leave. As a result, after a month of work in the reporting year, the employee can go on paid full leave. In some cases, when there is a trusting relationship between the employee and the employer, it is possible to grant leave even for the next year.

What is dangerous for the employer vacation in advance

The employer takes a risk by giving the employee leave in advance. The fact is that an employee can exercise his right to quit during or immediately after the vacation, while the employer paid him all the vacation days provided for the whole year of work.

In accordance with Article 137 of the Labor Code, the employer has the right to withhold from an employee who quit before the end of the full working year for which he received vacation pay, overpaid money. At the same time, withholding upon dismissal for leave provided in advance occurs with some difficulties.

Article 138 of the Labor Code prohibits deductions from an employee in excess of 20% of his salary. These requirements also apply to final settlement with the employee upon his dismissal. That is, if the amount of vacation pay is more than 20% of the calculated one, the employer runs the risk of not getting it back.

This issue can be resolved in two ways.

• The employee voluntarily returns to the employer the remaining amount of vacation pay for unworked vacation days. The employer cannot put pressure on the employee or threaten him with refusal to dismiss if the remaining part of the vacation pay is not paid, as this is the right, but not the obligation of the employee.
• The employer applies to the court for the deduction of the rest of the vacation pay. This can only be done under the following circumstances:
  1. When calculating holiday pay for an employee a mistake was made, due to which he received a larger amount than he was supposed to;
  2. The employee is recognized judicial order guilty of downtime of the company;
  3. Excessive vacation pay was accrued to the employee through his fault.

In other cases, the calculation upon dismissal, if the vacation is used in advance, is carried out in accordance with the general procedure with a deduction of a maximum of 20% of the total amount of payments upon termination employment contract.

When there is no deduction for vacation granted in advance

The law provides for cases when the employer cannot make deductions for unworked rest days at all. These include the following grounds for dismissal of an employee:

1. Refusal to transfer to another position, which is necessary for him for medical reasons;
2. Termination of the organization or individual entrepreneur;
3. Reducing the number or staff of employees;
4. For the director, chief accountant of the organization - change of the owner of the company;
5. Dismissal in connection with conscription into the army;
6. Reinstatement by a court decision or the CCC at the workplace of an employee who previously held this position;
7. Disability of the employee or other disease that makes him unable to work (confirmed by a medical document);
8. Death of an employee or employer - an individual.

Step-by-step instruction

To deduct for the vacation used in advance upon dismissal, the employer must complete the following steps.

• Determine the amount of overpaid vacation pay. To do this, you need to determine how many full months for which the employee is entitled to leave, he worked in the company. The result should be an integer, so if a person has worked less than 14 days of the month, he is discarded, and if more, they are rounded up to a whole month. The resulting number is multiplied by 2.33 (28 days / 12 months). The result will be equal to the number of rest days that the employee has earned. Read more about calculating vacation for an incomplete month worked - read here.

  Then, the resulting number is subtracted from the actually provided vacation days. This determines the number of days for which you need to keep vacation pay. The amount of deduction is determined based on the average daily earnings of the employee.

• Issuing a hold order. The document must reflect the employer's order to withhold a specific amount from the employee for unprocessed vacation days upon dismissal. Since, according to the law, the employee’s consent to such withholding is not required, the corresponding mark for the employee in the order is not needed. However, he must be familiar with the document against signature.
• Make recalculations in reporting documents. If an employee took vacation in advance and quits, then overpayment of vacation pay is not a mistake of the organization, so there is no need to make changes to tax reporting. The income tax declaration is filled out taking into account the fact that overpaid vacation pay is classified as non-operating income.

  In the report on UST and pension contributions, the tax base of the period when vacation pay was withheld is reduced by the amount of deductions.

Ask your questions in the comments to the article and get an answer from a specialist

12.02.2020

Upon dismissal, the employer is obliged to make payments to the employee for the period worked, as well as for all unused vacations.

Upon dismissal before the end of his working year with the vacation period already spent, the manager needs monetary compensation from the worker for days not worked. In what cases can you withhold vacation pay issued in advance from an employee, and how to do this?

Can I withhold payment for unworked vacation days upon dismissal?

This is a justified and lawful action, since the payment given in advance for rest to an employee will not be worked out until the end of the working year upon termination of the employment contract.

When can overpaid vacation pay be refunded?

If the employee does not agree to return the money used in advance

If the amount to be deducted from the salary of the person who wants to quit is not enough, then you can ask the employee to contribute the missing money on a voluntary basis. If the latter does not agree to return the funds paid to him for the unworked period, you can go to court. However, here the opinions of lawyers differ.

The Labor Code does not provide for the recovery of overpaid vacation pay in court.

At the same time, some experts argue that if it is possible to prove the unlawful actions of the resigned, it is possible to recover the damage caused to the entrepreneur in accordance with articles 391 of the Labor Code.

The employer also has the right to refuse to withhold unearned funds if the employee quit and refused to voluntarily pay the debt.

Waiver of withholding must be justified by the manager in case of tax audits. The justification may be the lack of the amount to be returned from the salary.

2020 payroll deduction calculation example

Example conditions:

The employee was registered at the enterprise on December 1, 2019. His work year ends on November 30, 2020.

During the year, the employee was sent on annual basic paid leave for 28 calendar days.

The average salary during the vacation amounted to 755 rubles. On July 31, 2020, the employee submitted a voluntary resignation letter.

There are four unfinished months left.

Upon dismissal, the employer wants to hold and return money for unworked time.

Calculation:

Calculate the number of unworked calendar days of vacation:

1. 28 k.d. / 12 months * 8 months of work at the enterprise (2.3 * 8 = 18.4).
2. 28 vacation days - 18.4 = 9.6

We round the result in favor of the employee - 9 unworked calendar days of vacation.

Let's calculate the amount of overpaid vacation pay = 9 days * 755 rubles = 6795 rubles.

In this case, the head of the enterprise has the right to return the money and deduct it from the salary upon dismissal in the amount of 6,795 rubles.

Answers to questions from readers

? Question 1 from Vladimir: Can an overpayment for vacation be deducted from my salary in advance without my consent? Or do I have to agree in writing first?

Answer: Yes, the employer can make a withholding, your consent is not required for this. But the amount withheld should not exceed 20% of the calculation due upon dismissal (after deduction of personal income tax). The employer does not have the legal right to arbitrarily withhold more than 20%.

? Question 2 from Anna Nikolaevna: Upon dismissal, they deducted vacation pay from the employee for vacation used in advance in the amount of 20% of the calculation amount payable. But this is not enough, the employee owes us. How to return money? Does it make sense to sue? please point me to a piece of law that I can refer to.

Answer: It makes no sense to go to court, usually employers lose such cases. The legislation does not contain provisions that allow you to legally return an overpayment for vacation. The only way for a refund is to persuade the dismissed person to voluntarily return the money to the organization.

? Question 3 from Semyon: I was hired on January 10, 2020, and fired on July 18, 2020 due to a reduction, during this time I took 28 days of vacation. The employer wants to withhold extra vacation pay from me. Does he have the right to do so?

Answer: No, if the official reason for terminating the employment contract is a reduction (clause 2 of article 81 of the Labor Code of the Russian Federation), then deduction is not allowed.

If you have any questions about this topic, please ask them in the comment form below, and we will answer them as soon as possible.

The employer can use this right, but it is not his obligation.

The company may not collect funds. Then the parties draw up an agreement on forgiveness of the debt for overpaid vacation pay, in which they indicate:

• full name of the organization;
• Names of the parties and positions;
• the number of unworked days;
• the amount of the debt;
• number of the accounting document confirming the debt.

One copy is received by the employee, the other by the employer.

If a decision is made to withhold part of the vacation pay, the employer must issue an order and notify the debtor.

The total amount that can be withheld for various reasons should not exceed 20% of the employee's income(according to paragraph 1 of article 138 of the Labor Code of the Russian Federation) minus tax deductions. In the cases stipulated federal laws, it reaches 50%. And 70%, if he is engaged in corrective labor, pays alimony, compensates for harm caused to the health of another person by criminal acts or harm that ended in the death of the breadwinner.

In what cases is it not allowed to withhold funds from an employee?

The Labor Code of the Russian Federation deprives the employer of such a right if:

In other cases, the employer has the right to withhold part of the funds, but it should not exceed 20% of the direct salary. That is, withholding cannot be carried out at the expense of other payments.

How do I get a vacation pay refund?

AT labor law there is no clear procedure for drawing up an order to withhold.

The order, written in free form, contains:

1. Full name of the employee;
2. their position;
3. the number of unworked days;
4. the amount to be retained by the employer;
5. the type of payment from which the funds are withheld.

The employer must certify the familiarization and consent of the employee with his signature. This will help them avoid litigation in the future.

Step-by-step instructions for calculating the debt of an employee who took an advance payment

The following mechanism is used:

personal income tax and tax contributions

If an employee received vacation pay for a larger amount than he actually worked, then the base of his tax deductions was overestimated. Further adjustments in the documentation depend on the decision made by the company.

If the parties sign a debt forgiveness agreement, personal income tax and employee insurance premiums are not recalculated.

The employer adjusts the income tax base by deducting the “forgiven” amount from the payroll costs(according to paragraph 1 of article 252 and paragraph 49 of article 270 of the Tax Code of the Russian Federation). Otherwise, it risks falling into economically unjustified expenses.

If the employer decides to withhold funds, then this reduces personal income tax and contributions in the month when the employee returns the unearned amount to the company. Correction of documents is carried out on the day of dismissal.

In 2-personal income tax indicate how much the employee received on the day of the final settlement. From this, the retained amount is subtracted.

Having made the decision to keep the organization is obliged to notify the employee in writing within 10 days that part of the personal income tax is withheld from his vacation pay for unworked vacation. Then he writes an application for the return of the amount of overpaid tax (clause 1, article 231 of the Tax Code of the Russian Federation).

You can find more information about vacation-related payments and their taxation with insurance premiums.

What to do if the amount withheld is not enough to return the debt?

Sometimes the amount of withholding is more than the 20% that the organization has the right to recover from him by law.

Then the employer has 3 options:

1. forgive the rest of the debt and draw up an appropriate agreement;
2. ask the resigning employee to repay it of their own free will through the company's cash desk or its bank account;
3. go to court to order the employee to return the money.

However the employee is not required to comply. Employer's attempts not to give work book to the maturity of the debt or influence it in other ways will be regarded as a violation.

Because of the ambiguity judicial practice on this issue, a decision can be made in favor of both the employee and the employer.

Every employee can get 28 days paid leave after 6 months of activity to the current employer. If he quits before the end of the calendar year, it turns out that he did not work part of this vacation. Upon dismissal, the organization has the right to recover from him payment for unworked vacation days, but not more than 20% of the amount of the payment.

Cases where funds cannot be withheld by law are defined by Art. 81 of the Labor Code of the Russian Federation.

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