For most employees, the duration of annual basic leave is 28 calendar days, for minor workers – 31 days, for disabled workers – at least 30. Moreover, at least one part of the leave must be at least 14 calendar days. The remaining days can be divided into any parts (Articles 123, 125 of the Labor Code of the Russian Federation). But such “fragmentation” requires agreement between the employee and the employer; the intention to divide the vacation must be recorded in the schedule. The document is mandatory for the employer (Part 2 of Article 123 of the Labor Code of the Russian Federation).
All organizations are required to draw up a vacation schedule, regardless of the number of staff. Only individual entrepreneurs can avoid doing this, but it is better for them to draw up such a document in order to avoid disagreements with employees (Article 305 of the Labor Code of the Russian Federation).
The schedule is drawn up once a year. For 2018, the vacation plan had to be approved no later than 14 calendar days before the new calendar year, that is, December 17, 2017, since the deadline falls on a weekend (Article 123 of the Labor Code of the Russian Federation). Employees must be familiarized with the approved schedule against signature.
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It is possible to take into account insurance premiums from vacation pay for tax purposes in full, even when the vacation income itself does not reduce, and it must be distributed among quarters if the vacation is “transitionable” (clause 1 of Article 264 of the Tax Code of the Russian Federation).
Labor legislation does not regulate what to do if employees were hired after the schedule had already been approved. It follows from the norms of the Labor Code that the right to go on vacation for the first time at a new job arises for a specialist after six months of continuous service. Newly hired employees can go on vacation earlier, but only with the permission of the manager (Article 122 of the Labor Code of the Russian Federation).
Providing leave
The employer must notify the employee of the granting of leave no later than two weeks before it begins. The specialist must be given a notice or notification drawn up in any form. At the same time, the employee does not have to write an application for leave, since it is granted on the basis of the schedule (even if the employee refuses to go on leave). An order is sufficient, with which the employee must be familiarized with his signature. The application is required only when providing annual paid leave to employees who “go away” on vacation for the first time without having worked for the organization for six months (Article 122 of the Labor Code of the Russian Federation).
Vacation calculation
The calculation period for vacation is 12 months preceding the start of the vacation. For example, if an employee goes on vacation from January 9, 2018, the calculation period for vacation pay is the period from January 1, 2017 to December 31, 2017. If the vacation begins on the first working day of January, vacation pay must be paid in the previous month - in December. In this regard, if the vacation begins at the beginning of the next month, vacation pay will have to be calculated when the last month has not yet been fully worked. If the exact salary is unknown, vacation pay can be calculated based on the salary, and then, if the amount changes, vacation pay must be recalculated and the difference must be paid. The amount of vacation pay is determined by multiplying the average daily earnings, calculated in accordance with Article 139 of the Labor Code of the Russian Federation and Regulation No. 922 of December 24, 2007 on the specifics of the procedure for calculating average wages by the number of calendar days of vacation (clause 9 of Regulation No. 922).
Average daily earnings for vacation pay are determined by the formula:
Vacation base: 12: 29.3 (part 4 of article 139 of the Labor Code of the Russian Federation, clause 10 of the Regulations).
The base includes wages and other payments provided for by the remuneration system. At the same time, the time when the employee was on any vacation, sick leave, on a business trip, or for other reasons was released from work while maintaining average earnings, in accordance with the legislation of the Russian Federation, is excluded from the billing period. If the month is not fully worked, the average daily earnings are calculated by dividing the amount of wages for the billing period by 29.3 and multiplying by the number of complete calendar months and the number of calendar days in incomplete calendar months. The number of days in an incomplete month is equal to the ratio of the number of days worked to the number of days of the month, multiplied by 29.3 (clause 10 of the Regulations).
Days not worked
If the entire billing period consists of excluded days, the preceding 12 months in which the employee had days worked are taken as the billing period. For a specialist who did not have any days worked in previous periods, the calculation period will be from the 1st day of the month of the start of the vacation to the date preceding the first day of the start of the vacation. For example, if a salaried employee did not have actual accrued wages or days worked for the billing period and before the start of the period (for example, she was on maternity leave), but had wages in the month she went on vacation (she returned from vacation this month and worked several days), then the average salary for vacation pay is calculated by dividing the wages accrued for days worked in a month by the estimated number of calendar days in that month. If, before the day she went on vacation, the employee had no payments included in the calculation of average earnings or days worked, the average daily earnings are calculated by dividing the tariff rate established for her by 29.3.
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Vacations that are not used for several years do not “burn out” in any case, although not providing them is a violation of the law. And since the employer is still obliged to give a person a rest, vacation pay for “accumulated” vacations is taken into account in full in tax expenses.
The calculation of vacation pay and the procedure for its payment is affected by whether holidays fall on holidays. Difficulties may arise if the holiday starts at the end of December or immediately after the New Year holidays, or during public holidays in February or March. There are many non-working holidays in Russia in January. There are eight of them in total: New Year holidays and Christmas. If these days fall on vacation, they are not considered rest days and do not need to be paid for.
At the same time, the amount of vacation pay for the employee will not be less, since non-working holidays are not taken into account when calculating days of rest. In the application, the employee will indicate the number of vacation days for which he will be paid. In this case, the rest time must be increased by eight days. New Year's holidays and Christmas are non-paid days. The same should be done when calculating vacation pay that falls on February, March 8, or May holidays.
Personal income tax and contributions
Personal income tax from vacation pay must be withheld when paying income and transferred to the budget no later than the last day of the month in which the amounts were paid (clause 7 of article 6.1, clause 6 of article 226 of the Tax Code of the Russian Federation, letter of the Ministry of Finance of Russia dated January 17, 2017 No. 03 -04-06/1618). If the payment of vacation pay and the start of vacation fall on different reporting periods, then vacation pay must be “showed” in the calculation for the period in which it was paid. Vacation pay issued in December is reflected only in Section I of the 6-NDFL report for 2017. The date of receipt of such income is the day of payment to the employee (subclause 1, clause 1, article 223 of the Tax Code of the Russian Federation). You need to fill out lines 020, 040 and 070. And these vacation pay will not be included in section 2 of the 6-NDFL report for the year; the company will reflect them in 6-NDFL for the first quarter of 2018, even if it paid tax last month.
Vacation pay is subject to insurance contributions, including contributions for injuries (Article 420 of the Tax Code of the Russian Federation, Article 20.1 of Law No. 125-FZ). Contributions from vacation pay amounts must be calculated in the month in which they were paid, and reflected in the reporting in the same period, even if the vacation begins in a different period (clause 1 of Article 424 of the Tax Code of the Russian Federation). Therefore, if the vacation falls in January 2018, and vacation pay was issued in December 2017, then contributions should have been calculated in December and reflected in the calculation of insurance premiums and 4 - Social Insurance Fund for 2017 (letter from the Ministry of Labor of Russia dated June 17, 2015. No. 17-4/V-298, dated September 4, 2015 No. 17-4/Vn-1316, dated June 30, 2016 No. 17-3/OOG-994, dated September 4, 2015 No. 17-4/ B-448). The Ministry of Finance of Russia, in a letter dated November 16, 2016 No. 03-04-12/67082, allowed for the time being to be guided by the explanations given earlier.
20172016Personal income tax Since 2016, personal income tax on vacation pay can be transferred until the end of the month. Until 2016, it was necessary on the day vacation pay was issued. However, compensation for unspent vacation must still be paid no later than the day following the dismissal. Data entry (all free!):Comparison with minimum wageThe average daily earnings cannot be lower than the minimum wage calculation for the month in which the employee goes on vacation. Federal minimum wage (in the month when the employee goes on vacation): (if an employee works part-time, then the minimum wage must also be divided in half) Number of calendar days (in the month when the employee goes on vacation): Result...The calculation in case of absence of days worked is very simple:
this one (there is accounting there). The issue price is 1000 rubles per month. But for this price you can calculate and submit all 25 reports for employees via the Internet. Examples of using the calculatorThe employee goes on vacation on August 15, 2018 for 20 days. He has been working since November 6, 2016 (earning 9,500 rubles). In December 2017, he received (officially) a New Year's bonus of 2,000 rubles (earnings of 12,000 rubles). In January 2017, I was sick for 7 days (earning 8,000 rubles). Salary 10,000 rubles. The billing period, in this case, will be from August 2017 to July 2018 (inclusive), but since If the employee has worked for this organization for less than a full year, then the period will be from November 5, 2017 to July 31, 2018 (i.e., 3 months will be “net” in the earnings column).
92346.94 (amount of earnings) / 261 (sum of settlement days) = 353.82 rubles Vacation pay calculation: 353.82 20 (vacation days) = 7076.39 rubles The employee goes on vacation on May 25, 2018 for 7 days. He has been working since May 2, 2018 (earning 7,720 rubles). The billing period, in this case, will be only one month. We exclude 1 day of start of work and 7 days, because the month was not fully worked out (i.e. 11 months will be “net” in the earnings column).
Average daily earnings will be: 8140.14 (amount of earnings) / 23 (sum of settlement days) = 353.92 rubles Vacation pay calculation: 353.92 (average daily earnings) * 7 (vacation days) = 2477.43 rubles RulesFrom April 2, 2014 (and in 2014), a new coefficient for calculating vacation pay is in effect - 29.3 (previously it was 29.4). What to do if your vacation started in one month and ended in another. All insurance premiums and personal income tax must be paid in full no later than three days before the start of the vacation. If there are deductions, then the personal income tax base is reduced by the entire amount of deductions due to the employee for the first month. There is no need to distribute deductions between months. Personal income tax Since 2016, personal income tax on vacation pay can be transferred until the end of the month. Until 2016, it was necessary on the day of issuance of vacation pay. An employee is entitled to compensation for 28 days of vacation if he has worked from 10.5 to 12.5 months (according to the rules of the People's Commissariat of Labor of the USSR dated April 30, 1930 No. 169). Calculation of vacation pay in 2018 Amount of vacation pay: The amount of vacation pay is equal to the product of the average daily earnings by the number of paid calendar days of vacation. Average daily earnings: Average daily earnings are equal to earnings (salary, official bonuses) for the 12 months (payroll period) preceding the month the vacation began, divided by the number of calendar days in the payroll period. Calculation of vacation pay in 2018 with excluded days. Example: An employee’s salary from June 1, 2017 to May 31, 2018 is 5,000 rubles. From June 1, 2017, the employee takes 28 days of vacation. The employee was ill for 10 calendar days - from March 14 to March 23 (in March 31 days of which 21 were worked) of 2018 inclusive Vacation pay = salary: 29.3 days. *(M + 29.3 days : Kdn1 * Kotr1) * D Vacation pay = salary [for 12 months. 5000*12=60 000] : days *(M + 29.3 days: Kdn1 * Kotr1 * D) = 4,893.45 rub. D - number of calendar days of vacation. M is the number of fully worked months in the billing period; Kdn1... - the number of calendar days in months not fully worked; Kotr1... - the number of calendar days in “incomplete” months falling on the time worked: According to such a complex (but legal) scheme in small businesses, few people consider it; they often simply give vacation pay = salary and that’s it. Days an employee works that are excluded from the calculation of vacation pay. This is when the employee was absent from the workplace:
In the case where an employee had no accrued salary for 12 months of the pay period or do they consist entirely of excluded periods? Then, to determine the average earnings, you need to take a period equal to the calculated one - 12 months that precede the excluded time. Easier to use for calculations. The issue price is 1000 rubles per month. But for this price you can calculate and submit all 25 reports for employees via the Internet. General rules for granting leave and paying compensation An employee is entitled to paid leave every year. This refers to the working year, not the calendar year. The working year is also 12 full months. But unlike the calendar, it does not start on January 1, but when the person was enrolled in the state. For example, an employee started working on April 1, 2013. This means that his first working year will end on March 31, 2014. The second working year is the period from April 1, 2014 to March 31, 2016, etc. The employee did not work out the vacation taken in advance. In the first year of work, the right to leave arises for the employee after six months of continuous service in the given company. At the same time, he can take the entire annual vacation, that is, all 28 calendar days at once (this is the standard vacation). But a person can quit without working for a year. Then he will have to return part of the vacation pay received to the company - Article 137 of the Labor Code of the Russian Federation insists on this. Although there are exceptions to this rule - in particular, dismissal due to staff reduction. The employee did not take the required vacation. If a person quits without using his legal leave, he is entitled to compensation. Money is paid for each day that the employee does not take time off. But without dismissal, you can replace with money only that part of the annual leave that exceeds 28 calendar days. Let's assume that every year an employee is entitled to a vacation of 35 calendar days. Then he can take 28 days off and receive compensation for the remaining 7. If the employee did not use 7 of the 28 days of rest due to him, then he will not be able to receive money instead. Example. The employee was hired on November 17, 2014, and left on June 30, 2015. During this period he was on vacation for 14 calendar days. In total, the employee is entitled to 28 days of main leave and 7 days of additional leave. The employee worked a full 7 months and an additional 14 days in November. This is less than half a month, so they are excluded from the calculation. Thus, he “earned” 20.42 days of vacation (35 days: 12 months x 7 months). Consequently, he is entitled to compensation for 6.42 days (20.42 – 14). If you went on vacation on the first day of work? Vacation will be the rate per shift multiplied by vacation days (quantity) (letter of the Ministry of Labor of Russia dated May 5, 2016 No. 14-1/B-429). Holidays Since holidays are not included or paid in the number of days of annual leave, there is no need to exclude them from the calculation. Let's say an employee was on vacation from February 16 to March 1, 2015. Meanwhile, February 23 is not included in the number of vacation days, like a holiday and a day off. And it must be taken into account when calculating calendar days attributable to time worked. Therefore, it is necessary to exclude the periods from February 16 to 22 and from February 24 to March 1. Holiday non-working days that fell on the employee’s previous vacation must be included in the calculation of the current vacation (letter of the Ministry of Labor of Russia dated April 15, 2016 No. 14-1/B-351). How long can a vacation last? In Russia, a regular vacation, according to labor law, lasts 28 calendar days. In this case, the rest can be divided into parts, one of which must be at least 14 days. The remaining parts can be of any length. That is, the employee has the right to take 5 days (from Monday to Friday). Another option common in enterprises is not prohibited - a vacation of 9 days (from Saturday of one week to Sunday of another). In this case, non-working holidays are not included in the number of calendar days of vacation and are not paid. Let’s say an employee is going to rest for 6 calendar days starting from June 8, 2015. This means that the last day of vacation will be June 14th. After all, June 12 is a holiday. What is the billing period? As a general rule, vacation pay is calculated based on the employee’s average earnings over the last 12 calendar months. That is, if a person plans to go on vacation in June 2015, then the calculation period for average earnings is from June 1, 2014 to May 31, 2015. A different billing period may be established in the following cases. If the employee has not yet worked for the company for 12 months. In this case, the calculation period will be the period of time during which the person is registered in the organization. For example, an employee joined the company on December 8, 2008. Since July 6, 2015, he has been granted annual leave. The billing period is from December 8, 2014 to June 30, 2015. If a person got a job and took a vacation in the same month. Then the calculation period is the actual time worked. Let’s assume that an employee joined the organization on July 6, 2015 and asked for leave starting July 20. The billing period begins on July 6 and ends on July 19. If the employee did not actually work during the last 12 months and was not paid a salary. Here we must take into account the last 12 calendar months during which the employee was paid a salary. Let's say that since March 14, 2012, a woman was first on maternity leave and then on parental leave. In March 2015, without going to work, she wrote an application for a two-week leave. The standard billing period - 12 months before vacation - falls on maternity leave, when there was no income. Therefore, you need to take the period from March 1, 2011 to February 28, 2012. If it is more convenient for the company to establish a special billing period. However, in such a situation, each vacation pay will have to be calculated twice (for 12 months and for the established billing period) and the results must be compared. The fact is that vacation pay cannot be less than the amount calculated on the basis of annual earnings. Which periods are taken into account when calculating length of service for vacation, and which are not? Experience includes: Time of actual work; Intervals when a person did not work, but a place was reserved for him; Forced absenteeism due to illegal dismissal or suspension from work and subsequent reinstatement; Days when an employee could not work because he failed to undergo a mandatory medical examination through no fault of his own. Let's say an employee quit in July 2015. By this time, he had been with the company for nine full months. But he was ill for six of them in total. Despite this, compensation for unused vacation must be calculated for all nine months. After all, during an illness, average earnings are maintained. Thus, the employee is entitled to compensation for 21 days (28 days: 12 months x 9 months). Please note: the period when a woman, while on maternity leave, works part-time is included in her vacation experience. The fact is that working part-time does not affect either the duration of annual leave or the calculation of seniority. This is indicated by Article 93 of the Labor Code of the Russian Federation. Experience does not include: The time an employee is absent from work without good reason (including due to suspension from work under Article 76 of the Labor Code of the Russian Federation); Thus, the beginning of the second working year is delayed by 32 days (46 – 14). Hence the second working year for which vacation is due is from December 18, 2008 to May 15, 2015 inclusive (date of dismissal). From January 11 to January 20, the employee was on leave without pay for 10 days. This period is fully included in the length of service. In total, it turns out that the employee worked for 4 months and 28 days, which is rounded up to 5 months. Thus, for the time worked in the second working year, the employee is entitled to compensation for 11.67 calendar days (28 days: 12 months x 5 months). And in just 39.67 calendar days (28 + 11.67). If the employee quits before the end of his first working year, the calculation will be as follows. Example. The employee was hired on February 2, 2015. From May 6 to June 7 inclusive, he was on leave without pay, and on June 15 he resigned. Annual paid leave in the company is standard 28 calendar days. The period from February 2 to May 1 inclusive, this is three full months, was fully worked by the employee. In the period from May 2 to June 15 (the date of dismissal), the employee worked for 12 days. Plus, you need to include 14 days of vacation at your own expense in the calculation. The total is 26 days, which are rounded up to a full month. Thus, compensation is due for 4 months or 9.33 days. (28 days: 12 months x 4 months). It’s easier to use for calculations (without used) or this one (there is accounting there). The issue price is 750 rubles per month. But for this price you can calculate and submit all 25 reports for employees via the Internet. Who is entitled to paid study leave? A company is required to provide an employee with paid study leave if the following several conditions are met. First: the educational institution has state accreditation. Second: employee receives education at this level for the first time. Third: the employee studies correspondence or evening departments. And fourth: successful studies(that is, the employee has no debts in the disciplines studied). At the same time, the employer has the right to provide for paid study leave in the employment or collective agreement in other situations. For example, for workers receiving a second higher education or studying at a university without state accreditation. How long can study leave last? The duration of educational leave is determined based on the summons certificate issued by the educational institution. This period is set in calendar days and depends on what kind of education the employee receives - higher or secondary. Types of paid study leaves (correspondence and evening studies)
When study leave is granted in accordance with internal company documents, a summons certificate is not required. In this case, the duration of the vacation is determined by agreement of the parties. Please note: the company must pay for all calendar days of study leave, including non-working holidays. Let’s say an employee is granted study leave from May 22 to June 30, 2015 inclusive. This means that you need to pay for all 40 calendar days, including the holiday - June 12. Otherwise, study leave is paid according to the same rules as annual leave. What the billing period may be, see above in the description of a regular vacation LawsArticle 114. Annual paid holidays Employees are provided with annual leave while maintaining their place of work (position) and average earnings. Article 115. Duration of annual basic paid leave Annual basic paid leave is provided to employees for 28 calendar days. Annual basic paid leave of more than 28 calendar days (extended basic leave) is provided to employees in accordance with this Code and other federal laws. Article 116. Annual additional paid leave Annual additional paid leave is provided to employees engaged in work with harmful and (or) dangerous working conditions, employees with a special nature of work, employees with irregular working hours, employees working in the Far North and equivalent areas, as well as in other areas. cases provided for by this Code and other federal laws. Employers, taking into account their production and financial capabilities, can independently establish additional leaves for employees, unless otherwise provided by this Code and other federal laws. The procedure and conditions for granting these leaves are determined by collective agreements or local regulations, which are adopted taking into account the opinion of the elected body of the primary trade union organization. The annual additional paid leave of at least 7 calendar days specified in Article 117 of this Code must be provided to all employees engaged in work with harmful and (or) dangerous working conditions, including those whose professions, positions or work performed are not provided for by the List of productions, workshops , professions and positions with hazardous working conditions, work in which gives the right to additional leave and a shortened working day, but whose work under conditions of exposure to harmful and (or) dangerous factors of the production environment and the labor process is confirmed by the results of certification of workplaces for working conditions (Definition Constitutional Court of the Russian Federation dated 02/07/2013 N 135-O). Article 117. Annual additional paid leave for employees engaged in work with harmful and (or) dangerous working conditions Annual additional paid leave is provided to employees engaged in work with harmful and (or) dangerous working conditions: in underground mining and open-pit mining in open-pit mines and quarries, in zones of radioactive contamination, and in other work associated with the adverse effects on human health of harmful physical, chemical, biological and other factors. The minimum duration of annual additional paid leave for employees engaged in work with harmful and (or) dangerous working conditions, and the conditions for its provision, are established in the manner determined by the Government of the Russian Federation, taking into account the opinion of the Russian Tripartite Commission for the Regulation of Social and Labor Relations. Article 118. Annual additional paid leave for the special nature of work The list of categories of employees for whom annual additional paid leave is established for the special nature of the work, as well as the minimum duration of this leave and the conditions for its provision are determined by the Government of the Russian Federation. Article 119. Annual additional paid leave for employees with irregular working hours Employees with irregular working hours are provided with annual additional paid leave, the duration of which is determined by a collective agreement or internal labor regulations and which cannot be less than three calendar days. The procedure and conditions for granting annual additional paid leave to employees with irregular working hours in organizations financed from the federal budget are established by the Government of the Russian Federation, in organizations financed from the budget of a constituent entity of the Russian Federation - by the authorities of the constituent entity of the Russian Federation, and in organizations financed from local budget - local government bodies. Article 120. Calculation of the duration of annual paid leave The duration of the annual main and additional paid leaves of employees is calculated in calendar days and is not limited to a maximum limit. Non-working holidays falling during the period of annual main or annual additional paid leave are not included in the number of calendar days of leave. When calculating the total duration of annual paid leave, additional paid leave is added to the annual main paid leave. Article 121. Calculation of length of service giving the right to annual paid leave The length of service that gives the right to annual basic paid leave includes: actual work time; the time when the employee did not actually work, but in accordance with labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, an employment contract, he retained his place of work (position), including the time of the annual paid leave, non-working holidays, days off and other rest days provided to the employee; time of forced absence due to illegal dismissal or suspension from work and subsequent reinstatement to the previous job; the period of suspension from work of an employee who has not undergone a mandatory medical examination (examination) through no fault of his own; the time of unpaid leave provided at the request of the employee, not exceeding 14 calendar days during the working year. The length of service that gives the right to annual basic paid leave does not include: the time the employee is absent from work without good reason, including due to his removal from work in the cases provided for in Article 76 of this Code; time of parental leave until the child reaches the legal age; The length of service that gives the right to annual additional paid leave for work with harmful and (or) dangerous working conditions includes only the time actually worked in the relevant conditions. Article 122. Procedure for granting annual paid leave Paid leave must be provided to the employee annually. The right to use vacation for the first year of work arises for the employee after six months of continuous work with this employer. By agreement of the parties, paid leave may be granted to the employee before the expiration of six months. Before the expiration of six months of continuous work, paid leave at the request of the employee must be granted: for women - before maternity leave or immediately after it; employees under eighteen years of age; employees who adopted a child (children) under the age of three months; in other cases provided for by federal laws. Leave for the second and subsequent years of work can be granted at any time of the working year in accordance with the order of provision of annual paid leave established by a given employer. The order of granting paid leave to employees of FIFA, FIFA subsidiaries, FIFA counterparties, confederations, national football associations, the Russian Football Union, the Organizing Committee "Russia-2018", its subsidiaries, whose labor activities are related to the implementation of activities for the preparation and conduct of sports in the Russian Federation competitions - the 2018 FIFA World Cup and the 2017 FIFA Confederations Cup, is determined annually in accordance with the vacation schedule approved by the employer, taking into account the action plans of the relevant organizations for the preparation and holding of sports competitions (Part 5 of Article 11 of the Federal Law of 06/07/2013 N 108-FZ). Article 123. Sequence of granting annual paid leave The order of provision of paid vacations is determined annually in accordance with the vacation schedule approved by the employer, taking into account the opinion of the elected body of the primary trade union organization no later than two weeks before the start of the calendar year in the manner established by Article 372 of this Code for the adoption of local regulations. The vacation schedule is mandatory for both the employer and the employee. The employee must be notified of the start time of the vacation by signature no later than two weeks before it begins. Certain categories of employees, in cases provided for by this Code and other federal laws, are granted annual paid leave at their request at a time convenient for them. At the request of the husband, he is granted annual leave while his wife is on maternity leave, regardless of the time of his continuous work with this employer. Article 124. Extension or postponement of annual paid leave Annual paid leave must be extended or postponed to another period determined by the employer taking into account the wishes of the employee in the following cases: temporary disability of the employee; the employee performs state duties during his annual paid leave, if the labor legislation provides for exemption from work for this purpose; in other cases provided for by labor legislation and local regulations. If the employee was not promptly paid for the period of annual paid leave or the employee was warned about the start time of this leave later than two weeks before its start, then the employer, upon a written application from the employee, is obliged to postpone the annual paid leave to another date agreed with the employee. In exceptional cases, when the provision of leave to an employee in the current working year may adversely affect the normal course of work of an organization or individual entrepreneur, it is allowed, with the consent of the employee, to transfer the leave to the next working year. In this case, the leave must be used no later than 12 months after the end of the working year for which it is granted. It is prohibited to fail to provide annual paid leave for two years in a row, as well as to not provide annual paid leave to employees under the age of eighteen and employees engaged in work with harmful and (or) dangerous working conditions. Article 125. Division of annual paid leave into parts. Review from vacation By agreement between the employee and the employer, annual paid leave can be divided into parts. Moreover, at least one part of this leave must be at least 14 calendar days. Recall of an employee from vacation is permitted only with his consent. The part of the vacation unused in this regard must be provided at the employee’s choice at a time convenient for him during the current working year or added to the vacation for the next working year. Employees under the age of eighteen, pregnant women and employees engaged in work with harmful and (or) dangerous working conditions are not allowed to be recalled from vacation. Article 126. Replacement of annual paid leave with monetary compensation Part of the annual paid leave exceeding 28 calendar days, upon written application of the employee, can be replaced by monetary compensation. When summing up annual paid leave or transferring annual paid leave to the next working year, monetary compensation can be replaced by a part of each annual paid leave exceeding 28 calendar days, or any number of days from this part. It is not allowed to replace with monetary compensation annual basic paid leave and annual additional paid leave for pregnant women and employees under the age of eighteen, as well as annual additional paid leave for employees engaged in work with harmful and (or) dangerous working conditions, for work in appropriate conditions (with the exception of payment of monetary compensation for unused vacation upon dismissal). Article 127. Exercise of the right to leave upon dismissal of an employee For information on the procedure for paying compensation for unused vacation, see the Rules on regular and additional vacations, approved. NKT USSR 04/30/1930 N 169. Upon dismissal, the employee is paid monetary compensation for all unused vacations. The employer, in order to properly fulfill the obligation established by the Labor Code of the Russian Federation to formalize the dismissal and pay the dismissed employee, must proceed from the fact that the last day of work of the employee is not the day of his dismissal (the last day of vacation), but the day preceding the first day of vacation (Definition of the Constitutional Court of the Russian Federation dated January 25, 2007 N 131-О-О). Upon written request from the employee, unused vacations may be granted to him with subsequent dismissal (except for cases of dismissal for guilty actions). In this case, the day of dismissal is considered the last day of vacation. Upon dismissal due to the expiration of the employment contract, leave with subsequent dismissal may be granted even when the vacation time completely or partially extends beyond the term of this contract. In this case, the day of dismissal is also considered the last day of vacation. When granting leave with subsequent dismissal upon termination of the employment contract at the initiative of the employee, this employee has the right to withdraw his resignation letter before the start date of the leave, unless another employee is invited to take his place by transfer. Article 128. Leave without pay For family reasons and other valid reasons, an employee, upon his written application, may be granted leave without pay, the duration of which is determined by agreement between the employee and the employer. The employer is obliged, based on a written application from the employee, to provide leave without pay: participants of the Great Patriotic War - up to 35 calendar days a year; for working old-age pensioners (by age) - up to 14 calendar days per year; parents and wives (husbands) of military personnel, employees of internal affairs bodies, the federal fire service, authorities for control of the circulation of narcotic drugs and psychotropic substances, customs authorities, employees of institutions and bodies of the penitentiary system, who died or died as a result of injury, concussion or injury, received while performing the duties of military service (service), or as a result of an illness associated with military service (service) - up to 14 calendar days a year; for working disabled people - up to 60 calendar days per year; employees in cases of the birth of a child, marriage registration, death of close relatives - up to five calendar days; in other cases provided for by this Code, other federal laws or a collective agreement. Article 139. Calculation of average wages For all cases of determining the amount of average wages (average earnings) provided for by this Code, a uniform procedure for its calculation is established. To calculate the average salary, all types of payments provided for by the remuneration system and applied by the relevant employer are taken into account, regardless of the sources of these payments. In any mode of operation, the average salary of an employee is calculated based on the salary actually accrued to him and the time he actually worked for the 12 calendar months preceding the period during which the employee retains his average salary. In this case, a calendar month is considered to be the period from the 1st to the 30th (31st) day of the corresponding month inclusive (in February - to the 28th (29th) day inclusive). Average daily earnings for vacation pay and compensation for unused vacations are calculated for the last 12 calendar months by dividing the amount of accrued wages by 12 and by 29.3 (the average monthly number of calendar days). The average daily earnings for payment of vacations granted in working days, in cases provided for by this Code, as well as for payment of compensation for unused vacations, are determined by dividing the amount of accrued wages by the number of working days according to the calendar of a six-day working week. A collective agreement or local regulatory act may provide for other periods for calculating average wages, if this does not worsen the situation of employees. The specifics of the procedure for calculating average wages established by this article are determined by the Government of the Russian Federation, taking into account the opinion of the Russian Tripartite Commission for the Regulation of Social and Labor Relations. Show/hide: Decree of the Government of the Russian Federation of December 24, 2007 N 922 “average wages” with the latest amendments and additions. GOVERNMENT OF THE RUSSIAN FEDERATION RESOLUTION ABOUT THE FEATURES OF THE ORDER OF CALCULATION AVERAGE SALARY (as amended by Resolutions of the Government of the Russian Federation dated November 11, 2009 N 916, dated March 25, 2013 N 257) In accordance with Article 139 of the Labor Code of the Russian Federation, the Government of the Russian Federation decides: 1. Approve the attached Regulations on the specifics of the procedure for calculating average wages. 2. The Ministry of Labor and Social Protection of the Russian Federation shall provide clarifications on issues related to the application of the Regulations approved by this Resolution. (as amended by Decree of the Government of the Russian Federation dated March 25, 2013 N 257) 3. Decree of the Government of the Russian Federation of April 11, 2003 No. 213 “On the specifics of the procedure for calculating average wages” (Collected Legislation of the Russian Federation, 2003, No. 16, Art. 1529) shall be declared invalid. Chairman of the Government Russian Federation Approved Government Decree Russian Federation POSITION ABOUT THE FEATURES OF THE ORDER OF CALCULATION AVERAGE SALARY 1. This Regulation establishes the specifics of the procedure for calculating average wages (average earnings) for all cases of determining its size provided for by the Labor Code of the Russian Federation (hereinafter referred to as average earnings). 2. To calculate average earnings, all types of payments provided for by the remuneration system and applied by the relevant employer are taken into account, regardless of the sources of these payments. Such payments include: a) wages accrued to the employee at tariff rates, salaries (official salaries) for the time worked; b) wages accrued to the employee for work performed at piece rates; c) wages accrued to the employee for work performed as a percentage of revenue from sales of products (performance of work, provision of services), or commission; d) wages paid in non-monetary form; e) monetary remuneration (monetary allowance) accrued for hours worked to persons holding government positions in the Russian Federation, government positions in constituent entities of the Russian Federation, deputies, members of elected local government bodies, elected officials of local government, members of election commissions operating on a permanent basis; f) salary accrued to municipal employees for time worked; g) fees accrued in editorial offices of mass media and art organizations for employees on the payroll of these editorial offices and organizations, and (or) payment for their labor, carried out at the rates (rates) of author's (production) remuneration; h) wages accrued to teachers of primary and secondary vocational education institutions for hours of teaching work in excess of the established and (or) reduced annual teaching load for the current academic year, regardless of the time of accrual; i) wages, finally calculated at the end of the calendar year preceding the event, determined by the remuneration system, regardless of the time of accrual; j) allowances and additional payments to tariff rates, salaries (official salaries) for professional excellence, class, length of service (work experience), academic degree, academic title, knowledge of a foreign language, work with information constituting state secrets, combination of professions (positions) , expanding service areas, increasing the volume of work performed, team management and others; k) payments related to working conditions, including payments determined by regional regulation of wages (in the form of coefficients and percentage bonuses to wages), increased wages for hard work, work with harmful and (or) dangerous and other special conditions labor, for night work, payment for work on weekends and non-working holidays, payment for overtime work; l) remuneration for performing the functions of a class teacher to teaching staff of state and municipal educational institutions; m) bonuses and rewards provided for by the remuneration system; o) other types of wage payments applicable to the relevant employer. 3. To calculate average earnings, social payments and other payments not related to wages (material assistance, payment for the cost of food, travel, training, utilities, recreation, etc.) are not taken into account. On including the time of a strike in the calculation period for calculating average earnings, see letter of the Ministry of Labor of the Russian Federation dated January 23, 1996 N 149-KV. 4. The calculation of the average salary of an employee, regardless of his mode of work, is based on the salary actually accrued to him and the time actually worked by him for the 12 calendar months preceding the period during which the employee retains his average salary. In this case, a calendar month is considered to be the period from the 1st to the 30th (31st) day of the corresponding month inclusive (in February - to the 28th (29th) day inclusive). Average daily earnings for vacation pay and compensation for unused vacations are calculated for the last 12 calendar months. 5. When calculating average earnings, time is excluded from the calculation period, as well as amounts accrued during this time, if: a) the employee retained his average earnings in accordance with the legislation of the Russian Federation, with the exception of breaks for feeding the child provided for by the labor legislation of the Russian Federation; b) the employee received temporary disability benefits or maternity benefits; c) the employee did not work due to downtime due to the fault of the employer or for reasons beyond the control of the employer and employee; d) the employee did not participate in the strike, but due to this strike he was not able to perform his work; e) the employee was provided with additional paid days off to care for disabled children and people with disabilities since childhood; f) the employee in other cases was released from work with full or partial retention of wages or without payment in accordance with the legislation of the Russian Federation. 6. If the employee did not have actually accrued wages or actually worked days for the billing period or for a period exceeding the billing period, or this period consisted of time excluded from the billing period in accordance with paragraph 5 of these Regulations, the average earnings are determined based on from the amount of wages actually accrued for the previous period, equal to the calculated one. 7. If the employee did not have actually accrued wages or actually worked days for the billing period and before the start of the billing period, the average earnings are determined based on the amount of wages actually accrued for the days actually worked by the employee in the month of occurrence of the event that is associated with the retention average earnings. 8. If the employee did not have actually accrued wages or actually worked days for the billing period, before the start of the billing period and before the occurrence of an event associated with maintaining the average earnings, the average earnings are determined based on the tariff rate established for him, salary (official salary ). 9. When determining average earnings, average daily earnings are used in the following cases: to pay for vacations and pay compensation for unused vacations; for other cases provided for by the Labor Code of the Russian Federation, except for the case of determining the average earnings of workers for whom summarized recording of working time is established. The average employee's earnings are determined by multiplying the average daily earnings by the number of days (calendar, working) in the period subject to payment. Average daily earnings, except in cases of determining average earnings for vacation pay and payment of compensation for unused vacations, are calculated by dividing the amount of wages actually accrued for days worked in the billing period, including bonuses and remunerations taken into account in accordance with paragraph 15 of these Regulations, by the number of days actually worked during this period. 10. Average daily earnings for payment of vacations provided in calendar days and payment of compensation for unused vacations are calculated by dividing the amount of wages actually accrued for the billing period by 12 and by the average monthly number of calendar days (29.3). If one or more months of the billing period are not fully worked out or time is excluded from it in accordance with paragraph 5 of these Regulations, the average daily earnings are calculated by dividing the amount of actually accrued wages for the billing period by the sum of the average monthly number of calendar days (29.3) , multiplied by the number of complete calendar months, and the number of calendar days in incomplete calendar months. The number of calendar days in an incomplete calendar month is calculated by dividing the average monthly number of calendar days (29.3) by the number of calendar days of this month and multiplying by the number of calendar days falling on the time worked in this month. 11. Average daily earnings for payment of vacations provided in working days, as well as for payment of compensation for unused vacations, are calculated by dividing the amount of actually accrued wages by the number of working days according to the calendar of a 6-day working week. 12. When working on a part-time basis (part-time, part-time), the average daily earnings to pay for vacations and pay compensation for unused vacations are calculated in accordance with paragraphs 10 and 11 of these Regulations. 13. When determining the average earnings of an employee for whom a summarized recording of working time has been established, except for the cases of determining the average earnings for paying for vacations and paying compensation for unused vacations, the average hourly earnings are used. Average hourly earnings are calculated by dividing the amount of wages actually accrued for hours worked in the billing period, including bonuses and remunerations taken into account in accordance with paragraph 15 of these Regulations, by the number of hours actually worked during this period. Average earnings are determined by multiplying average hourly earnings by the number of working hours according to the employee’s schedule in the period subject to payment. 14. When determining the average earnings for payment of additional educational leaves, all calendar days (including non-working holidays) falling during the period of such leaves provided in accordance with the educational institution’s certificate are subject to payment. 15. When determining average earnings, bonuses and remunerations are taken into account in the following order: monthly bonuses and rewards - actually accrued in the billing period, but not more than one payment for each indicator for each month of the billing period; bonuses and remunerations for a period of work exceeding one month - actually accrued in the billing period for each indicator, if the duration of the period for which they are accrued does not exceed the duration of the billing period, and in the amount of the monthly part for each month of the billing period, if the duration of the period for which they are accrued exceeds the duration of the billing period; remuneration based on the results of work for the year, a one-time remuneration for length of service (work experience), other remuneration based on the results of work for the year, accrued for the calendar year preceding the event - regardless of the time the remuneration was accrued. If the time falling within the billing period is not fully worked or time is excluded from it in accordance with paragraph 5 of these Regulations, bonuses and remunerations are taken into account when determining average earnings in proportion to the time worked in the billing period, with the exception of bonuses accrued for actually worked time in the billing period (monthly, quarterly, etc.). If an employee has worked an incomplete working period for which bonuses and rewards are accrued, and they were accrued in proportion to the time worked, they are taken into account when determining average earnings based on the amounts actually accrued in the manner established by this paragraph. 16. When tariff rates, salaries (official salaries), and monetary remuneration increase in an organization (branch, structural unit), the average earnings of employees increase in the following order: if the increase occurred during the billing period, payments taken into account when determining average earnings and accrued in the billing period for the period of time preceding the increase are increased by coefficients that are calculated by dividing the tariff rate, salary (official salary), monetary remuneration established in the month of the last increasing tariff rates, salaries (official salaries), monetary remuneration, by tariff rates, salaries (official salaries), monetary remuneration established in each month of the billing period; (as amended by Decree of the Government of the Russian Federation dated November 11, 2009 N 916) (see text in the previous edition) if the increase occurred after the billing period before the occurrence of an event that is associated with maintaining the average earnings, the average earnings calculated for the billing period increase; if the increase occurred during the period of maintaining average earnings, part of the average earnings is increased from the date of increase in the tariff rate, salary (official salary), monetary remuneration until the end of the specified period. If, when an organization (branch, structural unit) increases tariff rates, salaries (official salaries), monetary remuneration, the list of monthly payments to tariff rates, salaries (official salaries), monetary remuneration and (or) their amounts changes, average earnings increase by coefficients that are calculated by dividing the newly established tariff rates, salaries (official salaries), monetary remuneration and monthly payments by the previously established tariff rates, salaries (official salaries), monetary remuneration and monthly payments. (paragraph introduced by Decree of the Government of the Russian Federation dated November 11, 2009 N 916) When increasing average earnings, tariff rates, salaries (official salaries), monetary remuneration and payments established to tariff rates, salaries (official salaries), monetary remuneration in a fixed amount (interest, multiple), with the exception of payments established to tariff rates, are taken into account. salaries (official salaries), monetary remuneration in a range of values (percentage, multiple). When average earnings increase, payments taken into account when determining average earnings, established in absolute amounts, do not increase. 17. The average earnings determined to pay for the time of forced absence are subject to increase by a coefficient calculated by dividing the tariff rate, salary (official salary), monetary remuneration established for the employee from the date of actual start of work after his restoration to his previous job, by the tariff rate, salary (official salary), monetary remuneration established in the billing period, if during the forced absence in the organization (branch, structural unit) tariff rates, salaries (official salaries), monetary remuneration were increased. At the same time, in relation to payments established in a fixed amount and in an absolute amount, the procedure established by paragraph 16 of these Regulations applies. 18. In all cases, the average monthly earnings of an employee who has worked the full working hours during the billing period and fulfilled labor standards (job duties) cannot be less than the minimum wage established by federal law. 19. For persons working part-time, the average earnings are determined in the manner established by these Regulations. Of the paid services, I can recommend (without used) or this one (it has accounting). It easily includes all taxes and fees; generate payments, reports 4-FSS, SZV-M, Unified Settlement, submit any reports via the Internet, etc. (from 250 rubles/month). 30 days free, with the first payment () three months free. | ||||||||||||||||||||||||||||||||||||||||||||||
How to determine the calculation period for accrual of vacation pay?
What should you consider when calculating your average daily earnings?
Non-standard situations when calculating compensation for unused vacation: how to get out of the situation?
Procedure for granting leave
When granting an employee regular leave, the following must be taken into account:
- the duration of vacation must be at least 28 calendar days, excluding holidays and non-working days;
- upon dismissal, the employee is entitled to monetary compensation for unused vacation;
- after one continuous year of work, an employee can be granted leave without having to take the six months required by law;
- accrued vacation pay is issued to employees no later than three days before the start of the vacation;
- if an employee refuses to take leave, he is entitled to compensation (issued upon the employee’s written application). It can be accrued over several calendar periods. Replace the main regular one with monetary compensation vacation is prohibited, but an additional one is possible - in cases established by the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation);
3 cases when replacing vacation with compensation is unacceptable (Article 126 of the Labor Code of the Russian Federation):
the employee is a pregnant woman;
minor;
engaged in work with harmful or dangerous working conditions.
- leave may be granted compulsorily every six months based on a written application from the employee;
- at the request of the employee, vacation can be postponed, but no more than 2 times in a row;
- vacation can be divided into several parts with the condition that one part in any case will be at least 14 calendar days in a row.
The right to the first annual leave at a new place of work arises for an employee after six months of continuous work in the company (Part 2 of Article 122 of the Labor Code of the Russian Federation). However, in agreement with management Leave can be provided in advance.
Note!
The right to leave for a duration of employment of less than 6 months must be granted to:
minors (Articles 122, 267 of the Labor Code of the Russian Federation);
women before maternity leave or immediately after it or at the end of leave related to child care (Articles 122, 260 of the Labor Code of the Russian Federation);
working people who have adopted a child under 3 months of age;
in other cases provided for by law.
Vacations are granted based on the vacation schedule. In accordance with legal requirements, the vacation schedule indicates the procedure and time for granting vacations to employees for the next year. It must be approved no later than December 17 annually.
The employee must be notified of the start time of the upcoming vacation against signature no later than two weeks before its start (Part 3 of Article 123 of the Labor Code of the Russian Federation).
Vacation pay formula
Situation 1. The billing period has been fully worked out
In this case, the formula is used to calculate vacation pay:
Amount of vacation pay = Average daily earnings × Number of calendar days of vacation.
Average daily earnings (AP avg) are calculated using the formula:
ZP av = ZPf / 12 / 29.3,
where ZP f is the amount of actually accrued wages for the billing period;
12 - the number of months that must be taken when calculating vacation pay;
29.3 is the average number of days in a month.
The coefficient 29.3 is applied only in the month that is fully worked out in the billing period.
Example 1
Let’s assume that an employee of an institution goes on another vacation from 07/01/2015 for 28 calendar days. The calculation period for vacation accrual is from 07/01/2014 to 06/30/2015. The employee worked it out completely. During this period, the employee received a salary accepted for calculation in the amount of 295,476 rubles. Let's calculate the amount of accrued vacation pay for 28 calendar days:
(RUB 295,476 / 12 months / 29.3) × 28 = RUB 23,530.51
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In fact, it rarely happens that an employee has worked the entire pay period: during the year he may be on sick leave for some time, on a business trip, regular vacation, leave without pay, etc.
Situation 2. The billing period has been partially worked out
Let's assume that the employee did not work the entire month. In this case, the number of calendar days in an incomplete calendar month must be recalculated using the formula:
D m = 29.3 / D k × D neg,
where D m is the number of calendar days in an incomplete month;
D k - the number of calendar days of this month;
D otr - the number of calendar days falling within the time worked in a given month.
To calculate the average daily earnings for vacation pay if one or more months of the billing period are not fully worked or the time when the employee was accrued average earnings was excluded from this period, the formula is used:
ZP av = ZP f / (29.3 × M p + D n),
where ZP avg is the average daily earnings,
ZP f - the amount of actually accrued wages for the billing period,
M p - number of full calendar months worked,
D n - the number of calendar days in incomplete calendar months.
Example 2
The employee went on another vacation of 28 days from 09/07/2015. In the billing period from 09/01/2014 to 08/31/2015, he was on sick leave from March 16 to 19, 2015, and from April 23 to 28, he was on a business trip.
During the billing period, the employee received a salary in the amount of RUB 324,600. (excluding sick leave and travel allowances).
Let's calculate the amount of vacation pay.
First, we determine the number of calendar days per hour worked in March and April 2015:
- in March: 29.3 / 31 × (31 - 4) = 25.52;
- in April: 29.3 / 30 × (30 - 6) = 23.44
Let's determine the average salary for vacation pay:
324,600 rub. / (29.3 days × 10 + 25.52 + 23.44) = 949.23 rubles.
The amount of accrued vacation pay will be:
RUB 949.23 × 28 days = 26,578.44 rub.
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Calculation of vacation pay in non-standard situations
Situation 3. In the month of the billing period, the employee has no income, but there are days taken into account (New Year's holidays)
Let’s assume that epidemiologist Ilyin S.A. goes on additional leave from 08/03/2015 for 14 calendar days. The billing period is from 08/01/2014 to 07/31/2015. During this period, he was already on vacation from January 9 to January 31, 2015.
The employee has no accruals in January, and the days of this month (there are 8 in our case) that were not included in the vacation period should be taken into account.
Taking into account the above, we will determine the number of calendar days for calculating additional leave.
First, let's calculate the number of calendar days in the billing period:
(29.3 × 11 months + 29.3 / 31 × 8) = 329.86.
The accrued salary for the billing period without vacation pay is RUB 296,010. Let's calculate the amount of vacation pay due:
296,010 / 329.86 × 14 = 12,563.33 rubles.
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Situation 4. An employee takes a vacation immediately after maternity leave.
According to the rules, vacation pay is calculated based on the salary for the 12 months preceding the vacation. If a woman takes another paid leave immediately after maternity leave, then, accordingly, she has no income for the last year. In this situation, to calculate vacation, you should take 12 months preceding the period that is excluded from the calculation period, that is, 12 months preceding her maternity leave (Regulation on the specifics of the procedure for calculating average wages, approved by Decree of the Government of the Russian Federation of December 24, 2007 No. 922 (in ed. dated October 15, 2014)).
If the employee has no earnings at all (for example, the employee goes on vacation immediately after being transferred from another institution), vacation pay is calculated based on the salary.
Determining the amount of vacation pay for salary increases
A salary increase affects the calculation of vacation pay if this happens:
- before or during vacation;
- in the billing period or after it.
If the salary was increased for all employees of the institution, then before calculating the average salary, its rate and all allowances should be indexed to the rate that was set at a fixed amount.
The period of salary increases affects the indexation order. Payments are usually indexed by an increase factor. To determine the amount of vacation pay, we find the coefficient (K):
K = Salary of each month for the billing period / Monthly earnings on the date of going on leave.
If the salary increased during the vacation, only part of the average income needs to be adjusted, and it must fall on the period from the end of the vacation to the date of the increase in earnings; if after the calculated period, but before the start of the vacation, the average daily payment should be adjusted.
Situation 5. The salary was increased after the pay period, but before the start of the vacation.
Chemist-expert E.V. Deeva was granted the next main leave from 08/10/2015 for 28 calendar days. Monthly salary - 25,000 rubles. The billing period - from August 2014 to July 2015 - has been fully worked out.
Let's calculate the amount of vacation pay:
(RUB 25,000 × 12) / 12 / 29.3 × 28 calendars. days = 23,890.79 rub.
In August 2015, all employees of the institution received a 10% salary increase, therefore, the salary increased taking into account indexation:
(25,000 × 1.1) = 27,500 rubles.
The amount of vacation pay after adjustment will be:
RUB 23,890.79 × 1.1 = 26,279.87 rub.
Situation 6. Increase in salary during the billing period
Technician I.N. Sokolov goes on regular leave of absence lasting 28 calendar days from 10/12/2015. The calculation period for calculating vacation pay is from 10/01/2014 to September 2015 inclusive.
The technician’s salary is RUB 22,000. In September it was increased by 3,300 rubles. and amounted to 25,300 rubles. Let's determine the increase factor:
RUB 25,300 / 22,000 rub. = 1.15.
Therefore, salaries need to be indexed. We calculate:
(RUB 22,000 × 1.15 × 11 months + 25,300) / 12 / 29.3 × 28 = RUB 24,177.47
We determine the amount of compensation for unused vacation days paid upon dismissal
Upon dismissal, an employee has the right to receive compensation for days of unused vacation.
To determine the number of unused calendar days of vacation, the following data is required:
- duration of the employee’s vacation period (number of years, months, calendar days);
- the number of vacation days that the employee earned during the period of work in the organization;
- the number of days used by the employee.
The only current regulatory document explaining the procedure for calculating compensation for unused vacation remains the Rules on regular and additional vacations, approved by the People's Commissar of the USSR on April 30, 1930 No. 169 (as amended on April 20, 2010; hereinafter referred to as the Rules).
Determining the vacation period
The first working year is calculated from the date of entry into work for a given employer, subsequent ones - from the day following the end of the previous working year. If an employee is dismissed, his vacation period ends. When an employee gets a new job, he begins to earn vacation leave again from the first day of work.
Calculating the number of vacation days earned
The number of vacation days earned is determined in proportion to the vacation period as follows:
For your information
Usually the last month of vacation period is incomplete. If 15 calendar days or more were worked in it, then this month is rounded up to the whole month. If less than 15 calendar days have been worked, the days of this month do not need to be taken into account (Article 423 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation)). (clause 35 of the Rules)
The number of vacation days allotted for each month of the year is calculated depending on the established vacation duration. Thus, for each fully worked month, 2.33 days of vacation are due, for a fully worked year - 28 calendar days.
Cash compensation for all unused days of annual paid leave that the employee has acquired since starting work in the organization is paid only upon the employee’s dismissal (Article 127 of the Labor Code of the Russian Federation).
Question on topic
How to compensate unused vacation days for an employee who quits without working the accounting period?
An employee who has not worked in the organization for a period giving the right to full compensation, upon dismissal, has the right to proportional compensation for calendar days of vacation. Based on clause 29 of the Rules, the number of days of unused vacation is calculated by dividing the duration of vacation in calendar days by 12. This means that with a vacation duration of 28 calendar days, 2.33 calendar days must be compensated. days for each month of work included in the length of service giving the right to receive leave (28/12).
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Unlike regular vacation, which is granted in whole days, when calculating compensation for unused vacation, vacation days are not rounded.
Absenteeism, vacation granted without pay, exceeding 14 days, reduce the vacation period (Article 121 of the Labor Code of the Russian Federation).
Note!
Employees with whom civil law contracts have been concluded are not entitled to compensation for unused vacation, since the norms of the Labor Code of the Russian Federation do not apply to them.
We determine the period for payment of compensation for vacation upon dismissal
Borisov P.I. was accepted into the organization on December 8, 2014, dismissed on September 30, 2015. In June 2015, he was on leave for 14 days, and in July 2015, he was on leave without pay for 31 calendar days. The period of work in the organization was 9 months 24 days. Since the duration of vacation at one’s own expense exceeded 14 calendar days per working year, the total length of service must be reduced by 17 calendar days (31 - 14). This means that the vacation period will be (9 months 24 days - 17 days).
Since 7 calendar days are less than half a month, according to the rules they are not taken into account. It follows from this that only 9 whole months will be counted towards the length of service giving the right to leave.
The employee used two weeks of the main vacation; he does not have to pay compensation for them. In this case, the employee is entitled to compensation for 6.97 calendar days (9 months × 2.33 - 14 days).
Determining the amount of compensation payments
Example 3
The employee got a job at the organization on January 12, 2015, and quit on June 29, 2015. His salary was 40,000 rubles. We will determine the amount of accrued compensation upon dismissal.
From January 12 to June 11, the employee worked for five full months. We count June as a whole month, since from June 12 to June 29, 18 calendar days were worked, which is more than half the month (clause 35 of the Rules). As a result, we take 6 months for calculation.
Compensation is due for 14 calendar days (28 / 12 × 6).
The billing period from January 12 to May 31, 2015 consists of 4 whole months (February, March, April, May):
29.3 × 4 = 117.2 days.
We determine the number of days for calculation in January:
29.3 / 31 × 20 = 18.903.
Total in the billing period:
117.2 + 18.903 = 136.103 calendars. days
Salaries accrued for the billing period:
40,000 × 5 = 200,000 rub.
Let's calculate the amount of compensation:
200,000 rub. / 136.103 × 14 days = 20,572.65 rubles.
Example 4
The employee was hired on 06/01/2013 with a salary of 30,000 rubles, and on 10/09/2015 he resigned.
In October 2014, the employee took regular annual leave of 28 calendar days. For this month he was credited with 29,050 rubles.
From 06/01/2013 to 10/09/2015, 28 months and 9 days were worked, rounded up to 28 months (9 days less than half a month).
We determine the number of vacation days allotted for the entire period:
28 months × 2.33 = 65.24 days.
But 28 days have already been used, so you should compensate:
65,24 - 28 = 37,24 days
The billing period is 12 months before the vacation, in our example - from 10/01/2014 to 09/30/2014. During this period, a total of 320,012.48 rubles was accrued; to calculate the average daily earnings, you need to take the amount without vacation pay:
320,012.48 - 29,050 = 290,962.48 rubles.
To calculate the actual time worked, we take 11 fully worked months and 3 calendar days of October 2014 (31 - 28 days of vacation).
Thus, in the billing period:
29.3 × 11 + 3/31 = 322.397 calendars. days
The average daily salary will be:
RUB 290,962.48 / 322.397 = 902.50 rub./day.
Therefore, compensation for unused vacation should be calculated in the amount of:
902.50 × 37.24 = 33,609.10 rubles.
conclusions
The legislation prohibits not providing vacation for two years in a row, or replacing the next main vacation of 28 calendar days with monetary compensation.
The employee must be notified of the start date of the vacation by signature two weeks before it begins; vacation pay must be issued no later than three days before the start of the vacation.
Vacation can be divided into parts, but with the condition that one part must be at least 14 calendar days in a row.
Vacation pay is calculated in calendar days. If the vacation period includes non-working holidays, these days are not paid, and the vacation is extended.
In accordance with paragraph 8 of Art. 255 of the Tax Code of the Russian Federation, for profit tax purposes, only that amount of compensation for unused vacation that is calculated in accordance with generally established rules can be recognized as expenses. Rounding up the number of days of unused vacation will lead to an overestimation of the amount of payments made in favor of the employee and an understatement of the tax base for income tax, and rounding down (from 2.33 days to 2 days) will result in payment to the employee of a smaller amount, than required by law.
S. S. Velizhanskaya,
deputy chief accountant of the FFBUZ "Center for Hygiene and Epidemiology in the Sverdlovsk Region in the Oktyabrsky and Kirovsky districts of the city of Yekaterinburg"
Despite the specifics of the company’s employment, every worker, in accordance with the law, has the right to be provided within the framework of the priority schedule.
At the same time, both the employee and the employer have the right to another time, given that family problems, as well as production needs, make their own adjustments, which are also taken into account by the norms of the Labor Code of the Russian Federation.
Labor Code Norms
In compliance with the law, namely Article 123 of the Labor Code of the Russian Federation Each institution draws up a vacation schedule until December 15 based on the establishment of planned vacation periods for the next year.
At the same time, taking into account that the agreed document is a local act approved by both the manager and the chairman of the trade union committee, the schedule is subject to mandatory compliance by both parties to the legal relationship, which in this case are the employee and the enterprise.
Also, taking into account that it is not realistic to foresee all possible problems, both production-related and personal, a year in advance, the law gives the right to make changes to the schedule with the transfer of rest time to another time. After all, an employee cannot know in advance that he may need sanatorium treatment due to deteriorating health, and the manager cannot predict the same industrial accident or other circumstances.
That is why for such situations the law and it is possible to transfer earlier than the planned rest period for another period, especially if the worker’s absence from the workplace may adversely affect the production process.
At the same time, in pursuance of the norms of Article 124 of the Labor Code of the Russian Federation, the main vacation can be moved not just like that, but only subject to several conditions, in particular:
- availability of the worker’s consent;
- compelling reasons for changing the period of use of legal rest;
- provision of unused vacation at another time, namely until the end of the current year or no later than the next.
But next year is fine Article 114 of the Labor Code of the Russian Federation the worker will be entitled to another vacation, which must also be implemented in accordance with the period specified in the schedule, which, in fact, leads to the fact that last year’s vacation remains outside the schedule, while annual vacation is currently and is used in this way accumulating vacation days.
How much can “accumulate”
Based on Article 124 of the Labor Code of the Russian Federation it is prohibited not to provide rest for two years in a row, which in principle is fulfilled, given that employees, as a rule, use part of the rest throughout the year, while the remaining days are postponed until later.
At the same time, next year a similar situation arises, which ultimately leads to a fairly large number of unrealized days of rest for several years in a row.
And since the employer cannot provide all the days of legal vacation for two years, given that the worker is expected to be absent for quite a long time, they prefer not to remember about unused vacations, until the termination of the employment relationship. Moreover, if an employee works for a sufficiently long time in a company that, for operational reasons, practices the division and transfer of vacations, by the time the employee is dismissed, a fairly significant number of days of unrealized vacation have accumulated, which can only be compensated in two ways, or by providing vacation.
It should be noted that this situation arises because The law does not establish a limit on the duration of unrealized vacations, because it is assumed that employees rest on time based on the priority schedule or use the unsold part in the next two years.
Options for “getting rid of” unused rest periods
In fact, realize unused Accumulated rest within the prescribed period can only be achieved in two ways, namely:
- in monetary terms, by receiving;
- providing part of the unused vacation by adding it to the main vacation over subsequent years.
At the same time, regardless of which method of repaying unrealized rest days is chosen, it is worth taking into account some legislative nuances. So, in particular, in accordance with Article 126 of the Labor Code of the Russian Federation vacation replacement in full cash compensation for the current year is not allowed. But parts of the vacation remaining for previous years can be repaid in this way, but provided that the company has sufficient funds and the management of the institution agrees to such an equivalent vacation. 
It should also be taken into account the fact that replace in monetary terms You can only take vacations that are basic and only for parts exceeding 28 days. At the same time, those provided for the restoration of health cannot be replaced in the form of material compensation, especially when it comes to periods of rest provided in connection with employment or for work in the northern regions.
The procedure for providing periods for previous years
In fact, vacation not realized at the time is no different from the main vacation, which is provided annually, therefore, registration procedure the non-vacation period will be similar, with some exceptions.
In particular, in accordance with Article 123 of the Labor Code of the Russian Federation, when granting annual leave, notification is required two weeks before the holiday, but if the leave is not provided according to schedule and at the request of the employee no notice required.
In such a situation, the worker submits an application for consideration by management, which actually reflects a request to use the unrealized part of the vacation for previous years in the form of rest from a certain date or material compensation. Moreover, taking into account that unused parts are not included in the schedule, the employer has the right to refuse to provide rest at exactly the time required by employees, but again with the condition of its use at a later date, for example, after submitting the quarterly report.
If the manager doesn't mind against the sale of the rest of the leave for the previous year, a resolution is imposed on the application, on the basis of which an order is already issued to provide legal leave in full or only part of it, with subsequent implementation in another period.
Moreover, if the employee wishes to use the unrealized parts of the vacation not in the form of rest, but in monetary terms, an application is also submitted, and on its basis an order is again issued to pay compensation, but only if the institution has sufficient funds.
Compensation calculation
In accordance with Article 114 of the Labor Code of the Russian Federation, for the period of taking annual rest, the employee retains not only his position, but also average earnings, the calculation procedure of which is carried out with the norms Article 139 of the Labor Code of the Russian Federation. So, in particular, all accrued amounts for the last 12 months are taken into account, including salaries, sick leave and bonuses, not to mention incentive payments.
The agreed charges are summed up and divided by 12, thus calculating average monthly earnings. Then from the received amount it is calculated daily earnings by dividing the average monthly wage by a factor of 29.3, which is essentially the average of the number of days in a month.
Upon completion of the calculations, the resulting amount of daily earnings multiplied by the number of days provided vacation and is transferred to the employee as vacation pay.
If the worker does not plan to use the accumulated vacation days in kind, that is, through rest and wants to receive the agreed vacation in the form of monetary compensation, vacation pay is calculated in a similar way.
What to do before maternity leave
On the basis of Article 260 of the Labor Code of the Russian Federation, a pregnant woman on the eve of childbirth, as an additional measure of support, is granted the right to use the main leave outside the schedule and duration of employment. At the same time, the employee of her choice can take advantage of the agreed type of rest both before leaving and after, immediately after the end of sick leave or.
If a pregnant worker does not have enough experience to take full advantage of her vacation, she is given leave in advance. If a woman’s vacation has not been used, moreover, additional days of rest have accumulated over the past years, the period of release from work is still provided only in the amount of annual leave, given that the agreed norm is enshrined in law and the employer does not have the right to refuse.
At the same time, the issue of providing additional days of rest that were not used at the time established by the schedule is resolved in agreement with the company’s management, due to the fact that the obligation to implement them before or after the maternity leave is not established by law. That is, in essence, the issue of using unpaid leave in relation to a pregnant woman solved operationally and taking into account production processes.
Upon dismissal
In accordance with Article 127 of the Labor Code of the Russian Federation, upon termination of labor relations, the company must pay the employee compensation for all days of unused vacation, which was not realized by the time of dismissal.
That is, in essence, regardless of whether annual leave was used at the time established by the schedule or not, and also regardless of how many days were accumulated, the employer is obliged to pay compensation for all days in the amount of average wages, calculated taking into account the standards established in Article 139 of the Labor Code of the Russian Federation.
Employer's liability
In fact, within the framework of the law, the formation of unused vacation time is not a violation, but only if the worker had the opportunity to rest for at least two weeks a year with the obligatory condition of implementing the transferred rest over the next two years.
Moreover, if in violation of the norms of Article 124 of the Labor Code of the Russian Federation legal rest was not provided at all, and for more than two years in a row, the company’s management will be subject to punishment in the form of an administrative penalty, which is expressed in penalties based on Article 5.27 of the Code of Administrative Offenses of the Russian Federation in the amount of 30 to 50 thousand rubles.
Of course, every employer strives to ensure that its employees work, and therefore make a profit, constantly, which is why vacation debt for previous years is formed.
But, nevertheless, no amount of money, as well as production needs, can replace proper rest, which is provided by law for a reason, but in order to preserve the health and ability of workers.
For information about unused legal periods of exemption from work, see the following video:
Employees do not always rest in accordance with the vacation schedule, and according to the schedule, vacation time can extend over a couple of reporting periods. Which one should I take into account vacation expenses and when should I pay tax on the employee’s income? You will find answers to these and other questions related to accounting for vacation payments in our article.
In accordance with Article 136 of the Labor Code, payment for vacation is made no later than three days before its start. Vacation pay is accrued and paid to the employee at a time, regardless of whether his vacation falls on one or more reporting periods.
Accounting
Accounting rules do not require the distribution of vacation costs depending on the number of vacation days falling within a particular reporting period (month, quarter, year). The organization makes a decision on this issue independently, taking into account the requirements of regulatory legal acts on accounting (letter of the Ministry of Finance of Russia dated December 24, 2004 No. 03-03-01-04/1/190).
Vacation expenses are estimated liabilities. This is due to the one-time fulfillment of a number of conditions, the requirement for compliance with which in order to recognize liabilities as estimated is established by paragraph 5 of PBU 8/2010 “Estimated liabilities, contingent liabilities and contingent assets” (approved by order of the Ministry of Finance of Russia dated December 13, 2010 No. 167n; hereinafter - PBU 8/2010).
Firstly, The Labor Code obliges employers to provide employees with annual leave and pay them. An organization cannot avoid fulfilling this requirement.
Secondly, The organization will spend money to pay for employee vacations, that is, its economic benefits will decrease.
Third, It is, of course, possible to establish the amount of vacation payments, but the need to bear these expenses will arise in an uncertain time and in an unknown amount.
Since vacation expenses are an estimated liability, they must be reflected in accounting as a reserve and then, at the expense of this reserve, all vacation expenses must be written off in the reporting period. Now this is not a reserve for upcoming expenses, as it was before, but one of the estimated reserves formed in accordance with PBU 8/2010.
In accounting, an estimated reserve for vacation pay is created in order to reliably take into account the employer’s obligations to employees (clauses 5, 8 of PBU 8/2010).
Estimated liabilities are reflected in the account for reserves for future expenses (clause 8 of PBU 8/2010). This means that the reserve for vacation pay is taken into account in account 96 “Reserves for upcoming expenses” in the subaccount “Reserve for vacation pay.”
A reserve is accrued on the credit of account 96. The amount of the reserve can be attributed to expenses for ordinary activities, to other expenses, or included in the value of the asset:
Debit 20 (08, 23, 25, 26, 29, 44) Credit 96 subaccount “Reserve for vacation pay”
– deductions have been made to the reserve for upcoming vacation pay.
The use of the reserve (accrual of vacation pay when granting vacation, compensation for unused vacation) is reflected by an entry in the debit of account 96:
Debit 96 Credit 70
– accrued vacation pay (compensation for unused vacation);
Debit 96 Credit 69
– insurance premiums for vacation pay are calculated (compensation for unused vacation).
If an organization does not create a reserve for future expenses to pay for vacations in tax accounting (Article 324.1 of the Tax Code of the Russian Federation) or creates these reserves in accounting and tax accounting using different methods, then at the time the amount of the estimated liability is calculated, it is necessary to reflect the deferred tax asset. Its value is determined by multiplying the amount of deduction to the accounting reserve (or the deviation of the accounting reserve from the tax reserve) by the income tax rate - 20%.
The wiring will be like this:
Debit 09 Credit 68
– a deferred tax asset is reflected when calculating the amount of the reserve for vacation pay.
When granting vacation or accruing compensation to an employee for unused vacation, these expenses are written off in accounting against the reserve and must be recognized in tax accounting as labor costs. The previously recognized deferred tax asset will be settled to the extent that it is attributable to expenses recognized in tax accounting.
The wiring will be like this:
Debit 68 Credit 09
– the deferred tax asset is repaid when vacation is granted to the employee (compensation for unused vacation is calculated).
If in accounting the amount of accrued vacation pay exceeds the amount of the accrued reserve, the excess amount is immediately written off to cost accounts (clause 21 of PBU 8/2010). There should be no debit balance on account 96.
Reflect the amount of personal income tax withheld from vacation payments by posting:
Debit 70 Credit 68 subaccount “Calculations for personal income tax”
– personal income tax is withheld from employee vacation payments.
Vacation pay is also subject to insurance contributions (Federal Law No. 212-FZ). The amounts of accrued insurance contributions are taken into account in account 69 “Calculations for social insurance and security”.
Tax accounting
When should vacation expenses be recognized for income tax purposes if vacation pay is paid in one period and the vacation ends in another? Let's turn to the Tax Code.
The enterprise includes the costs of paying vacation pay as part of labor costs, which reduce the taxable profit of the organization (clause 7 of Article 255 of the Tax Code of the Russian Federation). Labor costs are included in the costs associated with production and (or) sales (clause 2 of Article 253 of the Tax Code of the Russian Federation).
Costs incurred are reflected depending on the cost recognition method chosen in the accounting policy for tax purposes in accordance with Articles 272 and 273 of the Tax Code.
When using the cash method, everything is simple. Expenses are recognized in the period when they are actually incurred, that is, on the day vacation pay is paid.
But with the accrual method everything is more complicated; there are two options for recognizing expenses.
First cost accounting option
The Ministry of Finance recommends distributing expenses across periods in proportion to vacation days. The conclusion of the ministry employees is based on Article 272 of the Tax Code. In tax accounting, companies using the accrual method recognize expenses in the reporting (tax) period to which they relate (Clause 1, Article 272 of the Tax Code of the Russian Federation). This means that if the vacation falls over several periods, then the accrued amounts for its payment are included in expenses in proportion to the number of vacation days falling on each period. This position has been repeatedly expressed by the Russian Ministry of Finance in letters dated July 23, 2012 No. 03-03-06/1/356, dated May 12, 2010 No. 03-03-06/1/323, dated April 22, 2010 No. 03-03- 06/1/288).
Example
Employee O.S. Semin was granted another paid leave from June 22 to July 18, 2013. The amount of accrued vacation pay is RUB 33,600. The employee's vacation falls on two reporting periods - the second quarter and 9 months of 2013. The company distributes the amount of vacation pay between June and July in proportion to the days worked.
In June, Semin rested for 10 days, and in July for 18 days. Let's distribute the costs:
in June expenses = 33,600 rubles. : 28 days x 10 days = 12,000 rub.;
in July expenses = 33,600 rubles. : 28 days x 18 days = 21,600 rub.
When filling out tax reporting, expenses will include the following amounts:
– for the second quarter of 2013 - 12,000 rubles;
– for 9 months of 2013 - 33,600 rubles.
Considering that the obligation to pay for an employee’s vacation three days before it starts is provided for by law, and the taxpayer cannot avoid this obligation, one can argue with the position of the financial department.
Second cost accounting option (controversial)
With the accrual method, the procedure for determining expenses is established by Article 272 of the Tax Code. According to it, expenses accepted for tax purposes are recognized as such in the reporting period to which they relate, regardless of the time of actual payment of funds and (or) other form of payment. In this case, labor costs (clause 4 of Article 272 of the Tax Code of the Russian Federation) are taken into account as an expense on a monthly basis, based on the amount of labor costs accrued in accordance with Article 255 of the Tax Code. In other words, since vacation pay is accrued as required by the Labor Code, it means that they can be recognized as expenses for profit tax purposes. That is, an organization that uses the accrual method when calculating income tax can recognize as an expense the amount of vacation payments in the accrual period in full.
There are many court decisions in defense of taxpayers: decisions of the FAS Moscow District dated June 24, 2009 in case No. A40-48457/08-129-168, FAS Ural District dated December 8, 2008 No. A07-6787/08, FAS West Siberian District dated December 1, 2008 in case No. A46-6675/2007, dated December 3, 2007 in case No. A75-4424/2007, etc.
It should be noted that the judges made decisions in favor of taxpayers even despite the submitted tax letters from the Ministry of Finance, noting that Article 272 of the Tax Code does not directly oblige the distribution of expenses in the form of vacation payments by period. Of course, we cannot remain silent about the fact that some courts agree with the Federal Tax Service; an example of this is the resolution of the Federal Antimonopoly Service of the North-Western District dated November 16, 2007 in case No. A56-39310/2006).
Expenses for additional vacation
In general, the duration of basic paid leave is 28 days. Is it legal to include payment for additional vacations in income tax expenses? Yes, if the right to additional vacation time is enshrined in law.
The employer has the right to independently establish additional holidays if they are not provided for by law (Article 116 of the Labor Code of the Russian Federation). At the same time, it is impossible to recognize expenses when calculating income tax if excess leave is provided on the basis of a collective agreement. This is directly stated in the Tax Code. Expenses for paying additional vacations provided under a collective agreement (in excess of those provided for by current legislation) to employees, including women raising children, are not taken into account when determining the tax base (clause 24 of Article 270 of the Tax Code of the Russian Federation).
Dangerous moment
The employer has the right to independently establish additional holidays if they are not provided for by law (Article 116 of the Labor Code of the Russian Federation). At the same time, it is impossible to recognize expenses when calculating income tax if excess leave is provided on the basis of a collective agreement. This is directly stated in the Tax Code.
You can only take into account the costs of additional rest for employees who are legally entitled to extended leave. At the same time, it will not be superfluous if, in the vacation application, each of them refers to a legal norm that gives the right to additional days of rest. First of all, these are articles 116-118, 321, 335 of the Labor Code. In addition, there are a number of Federal laws, for example dated February 19, 1993 No. 4520-1 “On state guarantees and compensation for persons working and living in the Far North and equivalent areas” and resolutions, for example the Decree of the Government of the Russian Federation dated December 30 1998 No. 1588 and others.
Expenses for a part-time worker
The employer is not obliged to pay for excess leave due to a part-time worker at his main place of work, but he can do this if he wishes. This is worth attention because such expenses are allowed to reduce income tax. The Russian Ministry of Finance gives the green light, provided that the number of additional days for vacation does not exceed those established by law (letter of the Russian Ministry of Finance dated May 16, 2011 No. 03-03-06/1/294).
Of course, it is necessary to take a document from your part-time worker confirming extended leave from your main place of work.
"Income tax
When vacation falls on two reporting periods, another important question arises. When to pay tax on an employee’s income in the form of vacation payments? Everything is very simple here.
The specifics of calculating personal income tax by tax agents, as well as the procedure and timing of tax payment are regulated by Article 226 of the Tax Code of the Russian Federation. According to it, tax agents are required to calculate, withhold and pay personal income tax. This must be done by Russian organizations, individual entrepreneurs, notaries engaged in private practice, lawyers who have established law offices, as well as separate divisions of foreign organizations in the Russian Federation from which or as a result of relations with which the person received income.
The tax agent calculates personal income tax on an accrual basis from the beginning of the calendar year based on the results of each month. This obligation applies to all employee income, in respect of which a tax rate of 13 percent is applied (Article 216, paragraph 1 of Article 224, paragraph 3 of Article 226 of the Tax Code of the Russian Federation). Therefore, many accountants have doubts about the date of accrual of personal income tax on vacation payments, because the tax rate on these payments is also 13 percent.
However, their doubts are in vain. Personal income tax on vacation pay must be calculated and paid directly when it is paid, and here’s why.
The duties of a tax agent include:
1) correct calculation of tax amounts;
2) withholding personal income tax from funds paid;
3) transfer of tax to the budget;
4) timely submission of income tax returns;
5) notification of inspectors about the impossibility of withholding tax;
6) storage of documents confirming the calculation, withholding and payment of taxes to the budget for 4 years.
Pay attention to the second point: tax agents are required to withhold the accrued amount of personal income tax directly from the taxpayer’s income upon their actual payment (clause 4 of Article 226 of the Tax Code of the Russian Federation). The law allows this to be done at the expense of any funds paid by the company. In this case, the withheld tax amount cannot exceed 50 percent of the payment amount.
So, we found out that the code obliges tax agents to withhold the accrued amount of personal income tax directly from a person’s income when they are actually paid. It is allowed to withhold tax at the expense of any money upon actual payment (Clause 4 of Article 226 of the Tax Code of the Russian Federation). It turns out that personal income tax on vacation pay must be calculated and paid simultaneously with the payment of money to the employee.
The correctness of this approach to the interpretation of legislative norms is confirmed by the Ministry of Finance. Thus, the letter of the Ministry of Finance of Russia dated June 6, 2012 No. 03-04-08/8-139 states that the date of actual receipt of income in the form of vacation pay is defined as the day of payment of income, including the transfer of income to the taxpayer’s bank accounts (subclause 1 Clause 1 of Article 223 of the Tax Code of the Russian Federation). The Presidium of the Supreme Arbitration Court agrees with the position of the Ministry of Finance (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 7, 2012 No. 11709/11). And even the Federal Tax Service does not deny that personal income tax on an employee’s vacation payment is correctly paid not at the end of the month, like personal income tax on his salary, but on the day he receives vacation pay (letter of the Federal Tax Service of Russia dated June 13, 2012 No. ED-4-3/ 9698).
