Is it possible to pay an advance on the last day of the month
Moreover, such an obligation is not made dependent on the presence of the employer's fault. Such rules are established by article 236 of the Labor Code of the Russian Federation. This is also confirmed by paragraph 55 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2. Before stopping work (if the salary is delayed for more than 15 days), you need to notify the employer (head of the organization or entrepreneur) in writing about this.Online magazine for an accountant
From the advance paid on the last day of the month, it is necessary to calculate and withhold personal income tax (Definition of the Aircraft of 05/11/2019 No. 309-KG16-1804, Letter of the Federal Tax Service of 03.24.2019 No. BS-4-11 / 4999). if the "salary" day is set directly to the 15th day, then the advance payment for the current month will have to be set on the 30th day of the same month. This means that personal income tax will need to be transferred to the budget both from the salary and from the advance, if there are 30 or less days in a month. if there are 31 days in a month, then personal income tax can only be withheld from the salary. We do not recommend setting the payday on the 15th day.How to set the timing of salary and other payments
In the local act of a beauty salon (for example, in the Regulations on Remuneration for Labor), clear terms for the issuance of an advance payment and salary at the end of the month must be spelled out. Specific dates must be indicated - for example, the 20th, and not from the 20th to the 25th (letter of the Ministry of Labor of Russia dated November 28, 2013 No. 14-2-242). The salary must be paid at least twice a month, or rather, every fortnight. Therefore, the interval should be approximately equal, that is, about 15 days. There are no restrictions on specific dates for the issuance of both parts of the salary in labor law.From 01.01.2019, insurance premiums in case of temporary disability and in connection with maternity must be paid to the IFTS. And for reimbursement of benefits, as before, you must contact the FSS. The Labor Code obliges the employer to pay wages to employees every fortnight, that is, twice a month (Art. 136 of the Labor Code of the Russian Federation). The first of these payments is traditionally called an advance. Let's see when to pay personal income tax from an advance. The Tax Code obliges the employer-tax agent to withhold personal income tax from the income of employees when they are actually paid, and then transfer the tax to the budget (clause 4 of article 226 of the Tax Code of the Russian Federation)
Prepayment salary
Better yet, state your request in an official letter and bring it to the bankers a few days before the planned cash withdrawal. Although the Central Bank allows banks to issue "salary" money before the holidays (which is usually reported in New Year's telegrams), this does not mean that they are obliged to do so. So if you do not inform your bank in advance, you have every chance of being left without money.New payroll dates from October 2019
In order not to transfer income tax to the budget twice, it is advisable to set an earlier date for the final wages. The new edition of the legal norm of the Labor Code requires the establishment of a specific date for the payment of wages in the internal regulations, labor or collective agreement. Therefore, now the formulations that establish the period of payment of money (for example, from the 16th to the 20th and from the 1st to the 5th day of each month) are unacceptable, and they will have to be clarified. For officials, such a fine is from 10,000 to 12,000 rubles, again - from 20,000 to 30,000 rubles; For legal entities from 30,000 to 50,000 rubles, repeatedly - from 50,000 to 100,000 rubles; for individual entrepreneurs from 1,000 to 5,000 rubles, repeatedly - from 10,000 to 30,000 rubles. Dear readers, if you see an error or typo, help us fix it! To do this, select the error and press the "Ctrl" and "Enter" keys simultaneously.Early payment of December salary
If the advance is paid before the end of the month, the date of actual receipt of income has not yet come. This means that the employer cannot form a base for personal income tax and, accordingly, calculate the amount of tax (see letters of the Ministry of Finance of Russia dated 28.10.2019 No. 03-04-06 / 63250, dated 22.07.2015 No. 03-04-06 / 42063). The situation is different if the advance is paid on the 30th day, which is the last day of the month. In this case, the date of the actual receipt of income and the date of the advance payment coincide.Personal income tax from salary advance
In this case, wages for the first half of the month (advance) and the rest of the wages are paid in the month following the reporting month. It should be noted that this procedure for the payment of wages may lead to a violation of the requirements of Art. 136 of the Labor Code of the Russian Federation in relation to specific employees, in particular, newly recruited employees. So, for example, if an employee got a job on the 1st, he will receive his first salary no earlier than the beginning of the next month, that is, at least 30-31 days later, which directly contradicts labor legislation (see also the letter of the Ministry of Health and Social Development of Russia dated February 25, 2009 No. 22-2-709; Question: In accordance with the collective agreement, wages are paid on the 15th and 30th day of the month following the reporting month; thus, an employee who starts work in this organization receives wages in a month and a half.The procedure and terms for payment of personal income tax to the budget
Penalty 1/300 of the refinancing rate for each day of delay. All this will be counted for you only if there is an on-site check. If it is not there during this period, then there will be no interest or fine. in 2013, they underpaid 3000r. Personal income tax (accrued and withheld from the employee, but not transferred to the budget), this amount surfaced only in February 2014 and was immediately paid, please tell me in the 2-personal income tax forWhat are the terms to pay advance and salary to employees
The Ministry of Social Policy also indicated similar dates in a letter dated 09.12.2010 No. 912/13 / 155-10. Why can't an advance be paid on the 23rd? And all because the payment must be made no later than the 7th day following the first half of the month, and after the 15th day the 7th day falls on the 22nd day. The specific terms for the advance payment and salary must be prescribed in the collective agreement or other normative act of the employer, for example, in the Regulations on Remuneration.December salary in December: personal income tax and contributions
In addition, the FTS, in its letter dated 01.12.2019 No. ЗН-4-1 /, gave recommendations to its territorial divisions to warn banks that payments for contributions from January 1, 2019 will only be accepted with the details of the tax authorities. That is, it indirectly recommended that taxpayers “round off” their relationship with the FIU back in 2019. In November 2019, the FIU directly]]\u003e reported]]\u003e. that in order to complete settlements with the fund and avoid mistakes, the arrears must be paid by December 25, 2019, and insurance premiums by the end of the year.The advance payment for the first half of the month is transferred to the employee minus the income tax, but the personal income tax from the entire amount of the monthly salary is transferred to the budget on the 15th day, together with the issuance of the final payroll. In accordance with paragraph 2 of Art. 223 of the Tax Code of the Russian Federation, the date of actual receipt of income taxed with personal income tax is the last day of the month for which these premiums were charged.
Personal income tax is not withheld from the advance.
Protection of labor rights
Clause 7 of Article 81 of the Labor Code of the Russian Federation stipulates that an employment contract can be terminated by the employer in cases of guilty actions by an employee who directly serves monetary or commodity values, if these actions give rise to a loss of confidence in him. Those employees whose position is included in a special list are considered materially responsible. Ekaterina Aleksandrovna Semyannikova: “An employee must be a financially responsible person and work directly with monetary or other values.When to pay salary income tax?
Do I need to pay personal income tax when paying an advance? If he is paid before the end of the month he contacts, then it is not necessary. An advance payment is not yet a salary, but a payment against the amount that will be calculated only on the last day of the month. The point of view that it is not necessary to transfer personal income tax from the advance is confirmed by the letter of the Federal Tax Service of Russia dated May 26, 2014 No. BS-4-11 / The situation with the advance payment, the date of payment of which coincides with the last day of the month (i.e.Personal income tax with advance payment or personal income tax in advance
Now the Labor Code of the Russian Federation requires that the salary be paid twice a month, for example, based on the time actually worked in each period. Following this amendment, several clarifications came out. We will figure out whether it is necessary to withhold personal income tax from each payment, which is calculated upon completion.
And as a contrast, another example is given: from the funds transferred to repay the loan, the previously calculated personal income tax cannot be withheld, since the amount returned to the loan is not an individual's income. So this letter is not at all about calculating personal income tax from the "advance", but about withholding personal income tax, previously calculated from other income.
According to TC, there is always a salary
As already mentioned, the Labor Code requires that wages be paid twice a month. In Art. The Labor Code of the Russian Federation says that a salary is not only the amount that an employee receives in the final calculation at the end of the month; this includes any payments to an employee, the basis for which is the performance of labor functions. This means that for the purposes of labor legislation, there is simply no “advance payment” on salaries: the payment in the middle of the month is exactly the salary. And since we are talking about wages, then it should reflect the actually fulfilled labor standard, as required by Art. Labor Code of the Russian Federation.
But in practice, this is often not the case: the amount of payment for the first half of the month is determined by calculation as a part of the salary that all employees receive, regardless of their actual output. This discrepancy between practice and the letter of the Labor Code of the Russian Federation was even the subject of consideration by Rostrud, whose specialists, in letters dated 20.05.2011 No. 1375-6-1 and dated 24.12.2007 No. 5277-6-1, confirmed that there is an internal contradiction in the Labor Code of the Russian Federation, when salary is also called payment, which may not be related to actual work. And in this case, it is more correct to speak not about the payment of wages, but about the payment of part of the wages.
However, these letters were issued prior to the amendment of Art. Of the Labor Code of the Russian Federation, where a direct relationship has now been established between the date of payment of the salary (and not part of the salary) and the period for which it was charged. That is, the legislator clearly requires the calculation of wages for a certain period. Therefore, it is no longer possible to use the logic set forth in the letters of Rostrud above. This means that companies need to switch to a different principle of forming payments and even pay salaries for the first half of the month based on the time actually worked in this period.
And in taxes - "advance"
Moreover, the tax in this situation needs to be calculated from the entire salary for this month, and not only from the amount of the "advance", but withhold - only in proportion to the "advance" paid (letter of the Ministry of Finance of Russia dated 03.13.1997 No. 04-04-06 ). In this case, the amount of tax is determined taking into account the rounding rules established by clause 6 of Art. Tax Code of the Russian Federation.
The company accrued wages in the amount of RUB 32,389 for the first half of September and paid it on September 30, 2017. The salary for the second half of September was accrued in the amount of RUB 20,611 and paid on 10/14/2017. The employee has no right to deductions.
As of September 30, 2017, the organization needs to calculate personal income tax from the entire salary for September: (32,389 ₽ + 20,611 ₽) × 13% \u003d 6,890 ₽. You need to keep this amount in proportion to payments rounded off according to the general rules (up to 50 kopecks is discarded, 50 or more is rounded to the full ruble).
Therefore, upon payment on September 30, 2017, RUB 4,211 will be withheld (with a transfer date on 10/02/2017), and upon payment on 10/14/2017 - RUB 2,679 with a transfer date on 10/16/2017.
Early tax
So, we figured out the rules for withholding personal income tax: the tax on wages paid not in connection with dismissal is calculated only on the last day of the month for which this salary was charged. Accordingly, the assessed tax is withheld from any income paid on or after that date. What to do if personal income tax was calculated by mistake and withheld when paying an "advance" before the end of the month?
Unfortunately, this issue is bypassed by both the regulatory authorities and the judicial practice. Although the legal bases easily contain letters stating the inadmissibility of transferring personal income tax "in advance", before the date of actual receipt of income (letters of the Federal Tax Service of Russia dated 09.29.2014 No. BS-4-11 / [email protected] and BS-4-11 / [email protected] , The Ministry of Finance of Russia dated 09.16.2014 No. 03-04-06 / 46268 and dated 09.01.2014 No. 03-04-06 / 43711). But when studying them, it turns out that a completely different situation is considered there: the budget includes amounts that were not withheld from individuals when paying income, which is directly prohibited by paragraph 9 of Art. Tax Code of the Russian Federation. That is, these letters are not about the tax withheld from the "advance", but about the amounts that, under the guise of personal income tax, were transferred to the budget even before any money was paid to employees at all.
Therefore, we will rely solely on the norms of the Tax Code of the Russian Federation. There are two options.
Option one - return the withheld
Return the withheld until the date of actual receipt of income in the form of a salary (until the last day of the month), and then, on the last day of the month, calculate personal income tax and withhold it in the future when paying any income to this employee. Then the formalities of Art. There is no need to comply with the RF Tax Code.
In this case, the employer cannot be accused of either illegal non-transfer of personal income tax to the budget, or illegal deduction from the employee's salary. After all, we recall that the cases when the employer has the right to make deductions from wages are exhaustively named in Art. Labor Code of the Russian Federation. And by keeping personal income tax in a situation that is not directly provided for by the Tax Code of the Russian Federation, the employer violates this procedure, for which he may be held liable under paragraph 6 of Art. 5.27 of the Administrative Code of the Russian Federation.
Please note that in this case, the procedure for the return of personal income tax, established by Art. Tax Code of the Russian Federation, not applicable. Until the end of the month for which the salary was accrued, the withheld amount still, in principle, cannot be considered tax, since the obligation to calculate personal income tax has not yet arisen. And since the amount of tax has not been calculated, then the tax cannot be withheld. Thus, until the date of actual receipt of income in the form of a salary (until the last day of the month), the deduction made from the interim payment, according to formal criteria, cannot be qualified exactly as personal income tax. If you manage to return the withheld before the date of actual receipt of income in the form of wages (before the last day of the month), the employer does not need to notify the employee about the excessive withholding, wait for his application and transfer the tax to the employee's bank account.
Option two - transfer tax to the budget
If for some reason it is impossible to return the "personal income tax from advance" to the employee, then this tax must be transferred to the budget no later than the working day following the day of withholding. Otherwise, the organization faces a fine of 20% of this amount under Art. Tax Code of the Russian Federation.
The deadlines for transferring the withheld personal income tax to the budget are set in clause 6 of Art. Tax Code of the Russian Federation. In this case, the general term applies, since this article does not establish any exceptions for "early" personal income tax.
Nor will it be possible to appeal to the fact that this amount is not taxed by the end of the month. Indeed, the withheld amount will acquire the status of personal income tax only when the last day of the month comes. But on this date, the deadline for transferring this amount to the budget will have already been skipped! After all, he, according to paragraphs 4 and 6 of Art. Tax Code of the Russian Federation, is counted precisely from the date of payment of the money from which the tax was withheld. So if the next working day does not transfer the withheld to the budget and does not return this amount to the employee by the end of the month, then the organization may be fined.
Alexey Krainev, tax lawyer
Material provided by the magazine "I am an accountant"
Issue No. 35
" № 7/2016
Commentary to the RF Armed Forces Definition No. 309-KG16-1804 dated May 11, 2016.
In the RF Armed Forces Ruling No. 309-KG16-1804 of May 11, 2016, the judges concluded that the commercial organization was lawfully held liable under Art. 123 of the Tax Code of the Russian Federation for the fact of non-transfer of personal income tax amounts within the prescribed period.
The circumstances of the case are as follows. The organization paid employees wages twice a month: on the 30th day - advance payment for the given month, on the 15th day of the next month - the final payment. The inspectors disagreed about whether it was necessary to transfer personal income tax from the amounts of the advance paid to employees on the last day of the calendar month.
Which of the two positions is correct?
Many accountants believe that it is not necessary to calculate and transfer personal income tax from the amount of the advance paid. This is confirmed by numerous letters from officials and tax officials.
| Letter details |
Conclusion of officials |
|---|---|
Letter of the Ministry of Finance of the Russian Federation dated October 27, 2015 No. 03-04-07 / 61550 |
On the last day of the month for which the taxpayer was accrued income in the form of wages, the tax amounts are calculated. Until the end of the month, income in the form of wages cannot be considered as received by the taxpayer. Accordingly, until the end of the month can not be calculated and withheld. Thus, withholding from the taxpayer the amount of tax calculated at the end of the month is made by the tax agent from the income when it is paid at the end of the month in which the income was received, which is taken into account when determining the tax base on an accrual basis, that is, on the last day of the month or in the next month |
Letter of the Ministry of Finance of the Russian Federation dated 01.02.2016 No. 03-04-06 / 4321 |
Situation: payment of wages at the enterprise is carried out on the 20th day of the current month (advance payment) and on the 5th day of the next month (final settlement). When paying wages on the 5th day of the month following the calculated one, it is necessary to withhold the tax calculated for the previous month and transfer the tax amounts to the budget no later than the day following the day the income is paid to the taxpayer. Consequently, the transfer of funds towards the payment of personal income tax by the tax agent in advance, that is, before the date of the actual receipt by the taxpayer of income, ch. 23 of the Tax Code of the Russian Federation is not provided. The officials explained that the transfer to the budget of the calculated amount of personal income tax in the case under consideration should be made no later than the 6th day of the month following the reporting one (once) |
Letter of the Federal Tax Service of the Russian Federation of 15.01.2016 No. BS-4-11 / 320 |
The tax agent must calculate, withhold and transfer personal income tax from the salary (including for the first half of the month) to the budget once a month when finalizing the employee's income based on the results of each month for which income was accrued. Thus, an organization - a tax agent is not obliged to withhold and transfer personal income tax when paying an advance |
However, this opinion is only partially true. Please note that in the letters of the Ministry of Finance mentioned above, a situation is considered when an advance is paid to employees before the end of the current month. Officials correctly note that in this case, the personal income tax should not be transferred to the budget from the amount of the advance payment, since before the expiration of the month, income in the form of wages cannot be considered received by the taxpayer. (A similar position is set out in the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 07.02.2012 No. 11709/11: before the end of the month, it is impossible to determine the income received in the form of monthly wages and to calculate the tax subject to withholding and transfer to the budget when paying wages for the first half of the month.)
In the Letter of the Federal Tax Service of the Russian Federation No. BS-4-11 / 320 (the third in the above table), a general recommendation is given: an organization - a tax agent is not obliged to withhold and transfer personal income tax when paying an advance. This wording may lead to misinterpretation of tax legislation and, accordingly, to tax disputes.
The fact is that clause 2 of Art. 223 of the Tax Code of the Russian Federation established: the date of actual receipt of income in the form of labor remuneration is the last day of the month for which income was accrued to the taxpayer (employee). That is, if the advance payment for the past month is paid on the last day of the month (the 30th (31st) day), the tax authorities may well recognize this date as the date the taxpayer receives income in the form of wages.
In accordance with paragraph 4 of Art. 226 of the Tax Code of the Russian Federation, tax agents are required to withhold the accrued tax amount directly from the taxpayer's income when they are actually paid, and transfer it to the budget no later than the day following the day the income is paid to the taxpayer.
In the commented definition of the Armed Forces of the Russian Federation, such a case was considered, and in it the judges supported the tax authorities: when paying income in the form of wages on the last day of the month, it is necessary to transfer personal income tax to the budget (a similar position is set out in the Decision of the Armed Forces of the Russian Federation dated 05/10/2016 No. 309- KG16-1806).
Thus, we conclude:
A different interpretation of tax legislation can lead to tax disputes.
Within the framework of this commentary, we will consider another interesting case regarding the taxation of personal income tax on the amounts of advances paid (Resolution of the AU ZSO dated 07.07.2015 in case No. A27-11510 / 2014).
Upon written application of employees, they were paid an advance payment in an increased amount (until the end of the current month). Accordingly, according to the established rules, personal income tax from the advance amounts was not transferred to the budget.
During the tax audit, the inspectors discovered cases when, after calculating the salary, it was repeatedly found that the amount of the advance exceeded the amount of the accrued salary. Subsequently (upon payment of wages for the next month), the overpaid amounts were withheld from the employees.
The tax authorities considered that payments to employees in excess of the amount of accrued wages are not part of it, cannot be qualified as advances on wages, since they are not related to the time actually worked by workers, but are payments subject to personal income tax in accordance with paragraphs. 1 p. 1 of Art. 223 of the Tax Code of the Russian Federation.
When income is received in cash, the date of actual receipt of income is determined as the day of payment of income, including the transfer of income to the taxpayer's accounts in banks (subparagraph 1 of paragraph 1 of article 223 of the Tax Code of the Russian Federation).
In other words, the tax authorities considered that in this case, personal income tax should have been transferred to the budget directly upon payment of income.
The arbitrators did not agree with this interpretation. In their opinion, the disputed amounts were paid as part of wages, therefore, the date of the actual receipt by the taxpayer of income is the last day of the month for which income was accrued for fulfilled labor duties in accordance with the employment contract.
The internal regulations of the organization establish that the advance payment for labor is paid in the first days of the month following the billing month. Experts from the GARANT Legal Consulting Service answered the question: should an organization withhold and transfer personal income tax from such an advance on wages?
11.04.2016According to part six art. 136 Labor Code of the Russian Federation, wages are paid at least every half month on the day established by the internal labor regulations, collective agreement, labor agreement. Other terms of payment of wages may be established for certain categories of employees by federal law (part seven art. 136 Labor Code of the Russian Federation). Thus, the Labor Code of the Russian Federation establishes a requirement for the maximum allowable interval between salary payments when regulating the issue of specific timing of its payment in local regulation, collective agreement, labor agreement... It follows from this requirement that the interval between payments should not exceed half a month, while there is no link to the calendar month, and the ability to pay all employees wages more often than the corresponding interval is not limited (clause 3 of the letter of the Ministry of Labor of Russia dated November 28, 2013 No. 14- 2-242).
The nuances of the salary payment procedure
In this case, wages for the first half of the month (advance) and the rest of the wages are paid in the month following the reporting month. It should be noted that such a procedure for the payment of wages may lead to a violation of the requirements art. 136 Labor Code of the Russian Federation in relation to specific employees, in particular, newly hired. So, for example, if an employee got a job on the 1st, he will receive his first salary no earlier than the beginning of the next month, that is, at least after 30-31 days, which directly contradicts labor legislation (see also letter Ministry of Health and Social Development of Russia dated February 25, 2009 No. 22-2-709; Question: In accordance with the collective agreement, wages are paid on the 15th and 30th day of the month following the reporting month; thus, an employee who joins this organization receives wages in a month and a half. Is it legal? // "Tax Bulletin", No. 8, August 2004). In this regard, we will also cite the decision of the Penza Regional Court dated 05/15/2015 in case No. 7-94 / 2015, which considered the situation when the organization set the terms for payment of wages: no later than the 30th day of the current month and the 15th day following the calculated one. According to the court, the specified deadlines for the payment of wages no later than the 30th and 15th of the day grossly violate the requirements h. 6 art. 136 Labor Code of the Russian Federation.
Thus, an employee who has been working since the beginning of the current month will receive his salary for the first half of the month (advance payment) not in the middle of the current month, but on the 30th, when the month has been fully worked. In fact, the salary in the current month will be paid 1 time at the end of this month.
Calculation and withholding of personal income tax
According to clause 2 of Art. 223 The Tax Code of the Russian Federation, upon receipt of income in the form of labor remuneration, the date of actual receipt by the taxpayer of such income is the last day of the month for which income was accrued to him for fulfilled labor duties in accordance with the labor agreement (contract).
Clause 1 of Art. 226 The Tax Code of the Russian Federation established that Russian organizations, from which or as a result of relations with which the taxpayer received income, are obliged to calculate, withhold from the taxpayer and pay the amount of personal income tax.
In accordance with clause 3 of Art. 226 Tax Code of the Russian Federation (as amended from January 1, 2016), tax amounts are calculated by tax agents on the date of actual receipt of income, determined in accordance with art. 223 Of the Tax Code of the Russian Federation, on an accrual basis from the beginning of the tax period in relation to all incomes in respect of which the tax rate is applied. clause 1 of Art. 224Tax Code of the Russian Federation, accrued to the taxpayer for a given period, offsetting the tax amount withheld in the previous months of the current tax period.
That is, on the last day of the month for which the taxpayer received income in the form of wages, the tax agent calculates the tax amounts. Until the end of the month, income in the form of wages cannot be considered as received by the taxpayer.
Based clause 4 of Art. 226 Tax Code of the Russian Federation, tax agents are required to withhold the accrued tax amount directly from the taxpayer's income when they are actually paid.
Thus, withholding from the taxpayer the amount of tax calculated at the end of the month is made by the tax agent from the income only when they are actually paid after the end of the month for which this amount of tax was calculated.
By virtue of the first paragraph clause 6 of Art. 226 Of the Tax Code of the Russian Federation, tax agents are required to transfer the amounts of calculated and withheld tax no later than the day following the day the income is paid to the taxpayer.
Based on the foregoing, when paying wages in the month following the calculated month, it is necessary to withhold the tax calculated for the previous month and transfer the tax amounts to the budget no later than the day following the day the income is paid to the taxpayer.
According to clause 9 of Art. 226 Tax Code of the Russian Federation payment of tax at the expense of tax agents is not allowed.
Withholding from the taxpayer the amount of tax calculated at the end of the month is made by the tax agent from the income only when they are actually paid after the end of the month for which this amount of tax was calculated. Consequently, the transfer of funds towards the payment of personal income tax by a tax agent in advance, that is, before the date of actual receipt of income by the taxpayer, Chapter 23 "Personal Income Tax" of the Tax Code of the Russian Federation is not provided ( letter Ministry of Finance of Russia from 01.02.2016 No. 03-04-06 / 4321).
Thus, if the advance is paid in the current month, then when the salary is paid to the employee in the next month, the tax agent deducts and transfers to the budget of personal income tax once upon the final calculation of the employee's income based on the results of each month for which income was accrued to him, within the time frame, established clause 6 of Art. 226 Tax Code of the Russian Federation (see, for example, letters Of the Ministry of Finance of Russia from 03.07.2013 No. 03-04-05 / 25494, dated 18.04.2013 No. 03-04-06/13294 , dated 15.08.2012 No. 03-04-06/8-143 ).
That is, until the last day of the month (until the 31st (up to the 30th)), personal income tax is not withheld from the paid salary and is not transferred to the budget even if for the given month part of the salary (in the form of a "planned" advance) was paid in during this month. For example, when paying wages for the current month on the 15th day of the same month and the 1st day of the next month, the entire amount of personal income tax (from 100% of the salary) is calculated on the 31st (30th) day and transferred to the budget within the time frame established clause 6 of Art. 226 Tax Code of the Russian Federation (1st day).
In this case, the payment of wages for the first half of the month (advance) is made not in the month for which this part of the wages was charged, but already in the next month.
IN letter The Ministry of Finance of Russia dated April 18, 2013 No. 03-04-06 / 13294 explains that in case of payment of income to an individual in parts several times per month, the tax agent calculates, withholds and transfers to the budget personal income tax from wages once a month at the final calculation of income employee at the end of each month for which he was credited with income, within the time frame established clause 6 of Art. 226 Tax Code of the Russian Federation. This position is set out in letters FTS of Russia dated 15.01.2016 No. BS-4-11 / 320, dated 26.05.2014 No. BS-4-11 / [email protected] , The Ministry of Finance of Russia dated 03.07.2013 No. 03-04-05 / 25494, resolution of the Federal Antimonopoly Service of the North-Western District dated 22.03.2011 in case No. A26-1553 / 2010.
Formally, in your situation, despite the fact that the advance is paid the next month after the worked month, the payment of wages takes place twice (for the first half of the month (advance) and then the rest is paid). At the same time, it cannot be denied that upon payment of the "second part" of wages, the final settlement with the employee takes place according to the results of the previous month. Before these events happened based on the norms clause 2 of Art. 223 Tax Code of the Russian Federation, clause 3 of Art. 226 Tax Code of the Russian Federation on the last day of the month for which the taxpayer was charged income in the form of wages, the tax agent calculates the tax amounts. It turns out that by withholding and transferring personal income tax once a month, upon final settlement with the employee, that is, upon payment of wages for the second half of the month next month, the organization will fulfill the recommendations of the Ministry of Finance.
Risks and their leveling
In our opinion, despite the conclusion that withholding and transferring personal income tax once a month (at the final settlement) allows not to withhold and transfer personal income tax from income in the form of an advance, the risk is that on the date of payment in the form of an advance payment the employee's income calculated as of the last day of the previous month is already known ( clause 2 of Art. 223 Tax Code of the Russian Federation, clause 3 of Art. 226 Tax Code of the Russian Federation), which does not happen with the "generally accepted" procedure for transferring an advance to an employee, that is, when it is paid within the current month (when the employee's income has not yet been determined on the date of payment of the advance). At the same time, it is not excluded that it is these, let us call them standard, cases and related to the explanation of the tax and financial authorities about the "one-time" withholding and transfer of personal income tax. In other words, the fact that, on the date of the advance payment, the amount of personal income tax from the income in the form of wages for the previous month has already been calculated by the tax agent, but upon payment it is not withheld and is not transferred to the budget, may cause a dispute over the issue of non-transfer of tax to the budget.
It should be noted that the Tax Code of the Russian Federation does not say anywhere that the amount of personal income tax should be transferred only once in the final settlement with the employee, such explanations are given in the letters of the Ministry of Finance of Russia. That is, formally, following the logic of the legislator, we can conclude that after the salary is calculated and the amount of tax is determined (on the last day of the month), the transfer of personal income tax should be made with each salary (payment of income), and such there can be not only two, but also more (if the employer, for example, pays off the debt in several stages).
It turns out, in order to protect itself, if "both parts" of the salary for the current month are paid in the next month (as in the situation under consideration), and personal income tax is calculated on the 31st (30th) day, the organization can withhold and transfer the tax on each date of issue cash to employees. It is in this case that the norms of the Tax Code of the Russian Federation ( item 6 and clause 9 of Art. 226 Tax Code of the Russian Federation) will not be violated.
Given the ambiguity of the current situation, in order to make the right decision, we recommend using your right to be a taxpayer and apply for written explanations on the application of the legislation of the Russian Federation on taxes and fees to the Ministry of Finance of Russia ( nn. 2 p. 1 art. 21, clause 1 of Art. 34.2 Tax Code of the Russian Federation). The presence of the clarifications received, in the event of a dispute with the tax authority, will be considered a circumstance excluding the fault of the taxpayer in the commission of a tax offense ( nn. 3 p. 1 of Art. 111 Tax Code of the Russian Federation).
For your information
Note that today, in the absence of appropriate regulatory regulation, the issue of the relationship between the end date of the worked period and the date of payment of wages for such a period causes numerous disputes. So, in judicial practice, there is a fairly common position according to which the employer, in principle, is not entitled to postpone the date of payment of wages for a particular month to the month following the worked one. This approach leads the courts to the conclusion that it is necessary to pay wages for the first half of the month immediately after the first half of the current working month, and for the second half of the work - immediately after the last day of work in the month (see, for example, the decisions of the Primorsky Regional Court of 10.06. 2015 No. 33-4749 / 2015, dated 08.07.2014 No. 33-5801, dated 09.09.2014 No. 33-7994, dated 03.09.2014 No. 33-7896, Penza Regional Court dated 02.06.2015 No. 33-1474 / 2015, the Supreme Court of the Komi Republic dated 30.10.2014 No. 33-5328 / 2014, Voronezh Regional Court dated 01.04.2014 No. 33-1807, the Supreme Court of the Udmurt Republic in case No. 33-4144, decisions of the Ulyanovsk Regional Court dated 01.04.2014 No. 7-80 / 2014, Saratov Regional Court dated 13.03.2015 No. 21-275 / 2015).
At the same time, the letters of the Ministry of Labor of Russia and Rostrud indicate the absence in part six art. 136 Labor Code of the Russian Federation "bindings to the calendar month". The explanations on this issue, given on the official portal of Rostrud "Online Inspection.RF", are extremely controversial.
But, even if we proceed from the assumption that the employer has the right to set a specific date for the payment of wages later than the end of the period for which it is paid, it is obvious that many employers abuse this right by making payment of wages after half a month or more from the end of the worked period. ... Such actions of the employer, in our opinion, cannot be considered as consistent with the general legal principles of rationality and fairness. As we have already said above, the violation of the employee's rights taking place in such a situation is also indicated in letter Ministry of Health and Social Development of Russia dated February 25, 2009 No. 22-2-709. The courts, without even expressing an opinion about the need to pay wages strictly after the end of the worked period, also find it illegal to have a situation in which the payment of wages for the first half of the month occurs only in the month following the worked one (see, for example, the decision of the Presidium of the Krasnoyarsk Regional Court dated 17.11.2015 No. 4G-2016/2015). As you can see, the need for legislative consolidation of a reasonable period from the end of the worked period, during which the employer will be obliged to calculate and pay wages, is long overdue.
Currently, the State Duma has received a government bill providing for the introduction of significant amendments to the legislation aimed at ensuring the employee's right to receive timely wages (Draft Federal Law No. 983383-6 "On Amendments to Certain Legislative Acts of the Russian Federation on Increasing the Responsibility of Employers for violation of legislation in the part related to remuneration "). It is planned, among other things, to make changes to art. 136 Labor Code of the Russian Federation. Part six of this article is proposed to be stated in the following wording: “Salaries are paid at least every half month. The specific date of payment of wages is established by the internal labor regulations, collective agreement, labor agreement no later than 10 calendar days from the end of the period for which it was charged. As you can see, this wording contains an extremely important innovation: it establishes a restriction for the employer in terms of choosing the date for payment of wages, providing for the need to make such payments no later than 10 calendar days from the end of the period for which the wages were calculated. If such amendments in art. 136 The Labor Code of the Russian Federation will be adopted, the deadline for payment of wages, including for the first half of the month, will actually be set by the legislator.
Advance payment is a legislative obligation of the employer, enshrined in the Labor Code of the Russian Federation. We will tell you what an advance is, what are the terms, procedure and amount of its payment in various situations.
Advance payment and terms of its payment
The Labor Code of the Russian Federation does not contain a definition of the term “advance payment”. However, the analysis of Art. 129 and 136 of the Labor Code of the Russian Federation allows us to conclude that the advance is the salary for the first half of the month.
According to the law, wages are paid every half month, and the period between the date of accrual and the date of payment of wages cannot exceed 15 days (Article 136 of the Labor Code of the Russian Federation).
This means that the employee must receive a salary for the first half of the month on any of the days between the 16th and 30th (31st) of the current month. Conditionally, this will be considered an advance payment. For the second half of the month, the employer is obliged to pay the employee from the 1st to the 15th day of the next month.
The specific date for the issuance of wages must be established and fixed in a local regulatory act, collective or labor agreement. In order to plan financial flows, organizations can set different days for the payment of wages for employees of various structural divisions (for example, workers are paid on the 13th and 28th, and administrative personnel - on the 10th and 25th).
The employer must pay the advance payment no later than the last day of the paid month (Article 136 of the Labor Code of the Russian Federation, letter from the Ministry of Labor dated February 14, 2017 No. 14-1 / OOG-1293, Rostrud letter dated September 26, 2016 No. ТЗ / 5802-6-1).
If the period between payments exceeds 15 days due to the fact that the deadline for settlement falls on public holidays, this will not be considered a violation.
Example
The organization has set the term for the advance payment - the 27th day of the settlement month and the deadline for payment of wages - the 12th day of the next month
Consequently, workers' wages for October should be paid on the last working day before the holidays, that is, November 9, 2018.
At the same time, the organization will pay the advance on wages on November 27, 2018, 18 days after the payment of wages.
Since, in this case, the organization has settled with employees in compliance with all the requirements of the law, a deviation from the frequency of payment cannot be considered a violation of the Labor Code of the Russian Federation.
Advance amount
The amount of the advance payment is determined on the basis of the salary (wage rate) of the employee and all allowances that do not depend on the assessment of the work for the month as a whole or on the fulfillment of the monthly norm of working time and labor standards.
As a general rule, the advance should be paid to employees in proportion to the time they worked (letter from the Ministry of Labor dated 08/10/2017 No. 14-1 / B-725 and dated 08/05/2013 No. 14-4-1702).
The calculation of the advance includes remuneration for work and some of the compensation allowances. For example, payment for work at night in accordance with Art. 154 of the Labor Code of the Russian Federation, allowances for combining positions, professional skills, work experience, etc.
Incentive payments (bonuses) do not affect the amount of the advance and are charged based on the results of the employee achieving performance indicators at the end of the month.
The additional payment for overtime work, for work on weekends and public holidays (Articles 152, 153 of the Labor Code of the Russian Federation) is not included in the advance. Such an additional payment is calculated in favor of the employee upon the final calculation and payment of monthly wages. Regional coefficients, percentage allowances for northerners are also charged on the monthly salary. Therefore, in general, the listed compensation payments do not affect the amount of the advance.
Example of calculating the amount of advance payment
Let's say the salary of an accountant is 40,000 rubles, the bonus for work experience is 2,000 rubles.
In the billing period, the accountant replaced the cashier during the vacation, the additional payment for the combination was 5,250 rubles per month. The accountant worked overtime for one working day.
The salary advance for November is 15,750 rubles ((40,000 + 2,000 + 5,250): 21 x 7).
Advance as a percentage of salary and fixed advance
The Labor Code of the Russian Federation does not prohibit employers from paying an advance as a percentage of wages. Moreover, this method of advance payment is the most convenient. With it, the accountant does not need to process the time sheet, and the employee knows in advance the amount he will receive for the first half of the month.
Often, employers pay employees an advance in the amount of 40% of their monthly wages, which makes it possible to achieve even payments in favor of the employee.
However, in some cases, this method of payment of an advance is not applicable. For example, when the employee did not work in full for the first half of the month (due to sick leave, vacation, time off, etc.).
Payment of an advance payment as a percentage of salary in such cases will lead to the fact that the advance will exceed the employee's real earnings. Moreover, if for the second half of the month there are no accruals in the payroll, then the accountant will not be able to withhold personal income tax from the amount paid before the end of the month of the advance.
As for the fixed monthly advance, it is best to avoid using it.
According to the controllers, the payment of an advance to employees in a fixed amount is discrimination in the labor sphere and a violation of the rights of employees to receive wages in full (letter of the Ministry of Labor No. 14-1 / B-725 dated 10.08.2017, letter of the Ministry of Finance dated 29.03.2016 No. 02-07-05 / 17670).
Therefore, even if the level of remuneration for all employees in the enterprise is approximately the same, the payment of a fixed advance is illegal.
Advance payment to newly hired employees
Labor inspectors in the regions believe that in relation to the newly hired employee, the general rules of Art. 136 of the Labor Code of the Russian Federation on the timing of salary payments. Otherwise, the employer may be held liable under Part 6 of Art. 5.27 of the Administrative Code of the Russian Federation.
Therefore, if a new employee has worked in the billing period for at least one day, it must be paid without fail. Moreover, it is best to pay advances in such cases in proportion to the time worked.
Example
The organization has the following terms of wages: advance payment - 30 (31) of the settlement month; salary - on the 15th of the month following the calculated one.
According to the production calendar, there are 23 working days in October 2018.
Let's calculate the amount of advance payment to M.V. Makarov. in proportion to the time worked in the first half of the month. It will be 4,000 rubles. The employee will receive this amount on October 31, 2018.
In addition, in relation to newly hired employees, special terms and procedure for the payment of advances can be established in the local acts of the employer. For example, determine the amount of the advance payment as a percentage of the salary, depending on the interval of dates of the employee's hiring.
Example
The local act establishes the days of payment of wages: wages for the last month - on the 10th, advance payment for the current month - on the 25th.
The employee was hired on the 2nd. The accounting department has no reason to pay the new employee a salary on the 10th, because he did not work last month. Before receiving an advance payment, according to the general rules, on the 25th, the employee has to work 24 days.
For such cases, the following rules can be set in a local act:
- if the first day of work falls on the period from the 25th to the 30th (31st) of the previous month, then the wages for the hours worked are paid on the 10th;
- if the first day of work falls on the period from 1 to 9 of the current month, then an advance in the amount of 10% of the salary is paid on the 10th;
- if the first day of work falls on the period from the 10th to the 17th of the current month, then an advance payment of 20% of the salary is paid on the 25th;
- if the first day of work falls on the period from the 18th to the 24th of the current month, an advance in the amount of 10% of the salary is paid on the 25th.
Earnings paid in advance are taken into account in further calculations of wages at the end of the month.
Since the problem of the term of the first payment of wages to a new employee has not been legally solved, in our opinion, the best way out is to calculate the advance in proportion to the hours worked, regardless of the date of the conclusion of the employment contract.