Is it legal to demand the return of vacation pay upon dismissal? If an employee is accrued vacation pay and then writes a letter of resignation. While on vacation, she quit and is asked to return her vacation pay.

Good afternoon I ask for your help! I was given leave, including 20 days in advance. For which vacation pay was accrued. While on leave due to circumstances, I decided to quit. I wrote a statement. The employer demanded a refund for the vacation days provided in advance and for the fact that I did not completely “take off” the vacation days. That is, he quit in the middle of his vacation. Tell me if this is legal. If I didn’t ask him to give me leave in advance and didn’t know that this would be the situation. Should I return the money? And what chances do I have to defend my position in court, what articles should I follow? Really looking forward to your reply.

Answer

Hello, Bogdan.

Firstly, in accordance with Part 1 of Article 80 of the Labor Code of the Russian Federation, you have every right to terminate the employment contract by notifying the employer in writing two weeks in advance. You had the right to notify your employer of your dismissal both before and during the vacation. When on vacation followed by dismissal, the day of dismissal is considered the last day of vacation. That is, for the fact that you allegedly did not take your vacation, you do not have to compensate your employer for anything. On the last day of your vacation, that is, on the day of dismissal, the employer is obliged, in accordance with Article 140 of the Labor Code of the Russian Federation, to pay all amounts due to you and return the work book. If a debt arises to the employer, he has the right to withhold it from the employee’s salary. In accordance with Part 2 of Article 137 of the Labor Code of the Russian Federation, deductions from your salary to pay off debts to the employer may be made upon your dismissal before the end of the year for which you have already received annual paid leave for unworked vacation days. Thus, since you went on vacation before the actual time worked, that is, the vacation was provided to you in advance, this advance must be returned by deduction from payments upon dismissal. It turns out that if you have already been fired, then you can voluntarily return the amount overpaid to you for your vacation, but you cannot be forced to reimburse it by transferring funds to the organization’s account or by transferring money to the cashier. Of course, your employer can go to court, but this happens extremely rarely.

Any employee of the organization has the right to leave. If a situation suddenly arises in which a person needs to resign after a vacation, then this is possible. This right is given to a person by Article 127 of the Labor Code of the Russian Federation. Essentially, there are two options when quitting if you haven’t taken your required vacation. Either take a vacation and then quit, or receive monetary compensation for unused vacation. There is also a situation when a person, already on vacation, decides to quit. Any employee has the obligation to notify the employer 14 days before dismissal, so if the vacation is longer than 14 days, then the employee can do this according to the general rules. The final day of payment will be the day of dismissal, when the employee’s work book is returned and the final payment is made. It must be remembered that management does not have the right to call an employee from vacation before its end in accordance with Article 125 of the Labor Code of the Russian Federation.

In what cases is leave followed by dismissal granted?

This issue is resolved in agreement with management, because providing an employee with rest before dismissal is a right, and not an obligation of the employer. The employer retains the right to either deny the employee leave with subsequent dismissal and pay compensation for unused leave or provide only part of the leave and pay the rest in cash. This applies even to conscientious and disciplined employees. As for employees who committed guilty acts, they will, in principle, not be given leave, but will only be paid compensation. This becomes clear after reading Article 81 of the Labor Code of the Russian Federation. If an employee decides to take advantage of the vacation plus dismissal scheme, then you need to think about how to formalize all this in the accounting department.

How is leave followed by dismissal processed?

Vacation followed by dismissal is processed in the same way as regular vacation, that is, according to the application + order scheme. You can write two applications, that is, first you write an application for leave, and then you write a letter of resignation. Or one statement is written. The application is written in any form, it indicates the date from which the employee asks for leave, the period of leave and the phrase “I ask for leave with subsequent dismissal”, it is also necessary to indicate the reason, for example, “at his own request”. Based on the application or applications, the personnel service or accounting department issues an order to grant the employee leave. If the organization uses standard forms of orders, then in this case two orders will have to be issued. Order for leave and order directly for dismissal:

the standard form for a vacation order is form T-6 or T-6a;
an order to terminate an employment contract is Form T-8 or Form T-8a.

There may be only one order, but then the organization must develop the form of such an order itself and consolidate it in its accounting policies. The date of the vacation order is the last day before the rest, and the date of the dismissal order is the last day of work. The employee’s last day of work is considered the day of his dismissal, but in our case the procedure will be different. In our case, the employee’s last day of work will be the day his vacation ends. Payments to the person will accordingly be made before the start of the vacation, on the last working day. If vacation is granted according to the vacation schedule, then you do not need to write an application. Instead, the accounting department is obliged two weeks before the start of the vacation (or earlier) to send him a vacation notice against his signature. There is no established form for notice of leave, so companies must develop the form of such notice themselves or decide how to notify the employee.

It is also necessary to make an entry in the work book and issue it to the employee on the last working day. In the accounting department, the accountant will additionally draw up a calculation note on granting leave to the employee in the T-60 form and a calculation note on the termination of the employment contract with the employee in the T-61 form. If suddenly the company has developed a single form for leave with subsequent dismissal, then only this form is filled out. In the working time sheet in form T-12 or T-13, vacation days are displayed “FROM” or “09”; if this is additional vacation, then “TO” or “10” are indicated. A note is also made in the person’s personal card, and when a work book is issued, the employee signs in the work book record book. It must be said that the fact of vacation followed by dismissal is not reflected in the work book.

What payments are provided to the employee in this case?

Before a vacation followed by dismissal, the employee must be paid:

wages for days worked;
vacation pay;
compensation for unused vacation, if any (for example, a person decided to use part of the vacation).

Both basic and additional leave are subject to compensation. At the same time, there is no need to write any application for payment of compensation, because payment of compensation for unused vacation is the direct responsibility of the employer. Vacation pay is paid three days before the start of the vacation, and payment upon dismissal is paid on the last working day. The required amounts can be paid to the employee in cash, or by transfer to a bank card or personal account.

How can you withdraw an application for leave with subsequent dismissal?

If suddenly a situation arose in which an employee first decided to take a vacation, then quit, and then changed his mind. In this case, the law allows you to withdraw an application for leave with subsequent dismissal, but before the start of this period, because the employee will receive all payments and documents before the leave, including a work book with a record of dismissal. In addition, the order to dismiss the employee will already be ready and signed, and in this case the employee will have to get a job again. If a person, while on vacation, decided to quit, wrote an application, and then changed his mind, then in this case he just needs to withdraw his application from the accounting department.

Can an employer refuse to withdraw such an application?

According to the law, an employer can deny an employee leave if he later decides to quit and only give permission for dismissal and payment of compensation for unused leave.

Having considered the issue, we came to the following conclusion:
In this case, the employer does not have the right to withhold more than 20% of the wages due to the employee, even with his consent.

Rationale for the conclusion:
The employer has the right to make a deduction when dismissing an employee before the end of the working year for which he has already received annual paid leave for unworked vacation days (paragraph five of part two of the Labor Code of the Russian Federation).
Deductions for unworked vacation days are not made if the employee is dismissed on the grounds provided for in clause 8 of part one of Art. 77, clause 1, clause 2 and clause 4 of part one, and the Labor Code of the Russian Federation. The most common case of termination of an employment contract - voluntary dismissal - does not apply to such grounds. This means that upon termination of the contract at the initiative of the employee, the employer has the right to withhold for unworked vacation days.
Unlike the deductions provided for in paragraphs two, three and four of part two of the Labor Code of the Russian Federation, deductions for unworked vacation days can be made even if the employee has objections. A special decision by the employer on withholding is also not required (ruling of the Penza Regional Court dated December 20, 2011 N 33-3297). Upon dismissal, a calculation note is drawn up, where the corresponding deduction is reflected.
In accordance with the Labor Code of the Russian Federation, the total amount of all deductions for each payment of wages cannot exceed 20%, and in cases provided for by federal laws - 50% of wages due to the employee.
The restrictions established by the Labor Code of the Russian Federation also apply to the amount of the final payment upon dismissal. In other words, the employer does not have the right to withhold from the last payment the entire amount owed to him if it exceeds 20% of the amount due (see, for example, the ruling of the Penza Regional Court dated December 20, 2011 N 33-3297).
It must be taken into account that when deducting vacation pay for unworked vacation days, the restrictions on the amount of deductions provided for by the Labor Code of the Russian Federation must be observed. According to part one of the Labor Code of the Russian Federation, the employer, in the absence of other deductions, has the right to withhold no more than 20% of the employee’s salary to pay off debts for unworked vacation days. Moreover, even with the consent of the latter, the employer does not have the right to exceed the specified 20% withholding amount (see also the explanations of representatives of Rostrud (question No. 1, question No. 2)).
If the amounts accrued to the employee upon dismissal are not enough to fully repay the debt or the restrictions established by the Labor Code of the Russian Federation do not allow the debt to be fully repaid, then the employee can voluntarily return the rest by depositing it into the employer’s cash register or transferring it to his current account.
If the employee refuses voluntary compensation for vacation pay, then the debt for unworked vacation days is not subject to recovery in court. This conclusion was reached by the Supreme Court of the Russian Federation dated October 25, 2013 No. 69-KG13-6. This definition is included in the Review of judicial practice of the Supreme Court of the Russian Federation for the third quarter of 2013 (clause 5 of the section “Judicial practice in civil cases”).
The court's position is based on the fact that current legislation does not contain grounds for collecting through court debt for unworked vacation days. According to part four of the Labor Code of the Russian Federation, wages overpaid to an employee cannot be recovered from him, except in cases of a counting error, if the body for the consideration of individual labor disputes recognizes the employee’s fault for failure to comply with labor standards or idle time, if the wages were overpaid to the employee in connection with his unlawful actions established by the court. By virtue of the Civil Code of the Russian Federation, not only wages, but also payments equivalent to them, pensions, benefits, scholarships, compensation for harm caused to life or health, alimony and other sums of money provided to a citizen as a means to existence, in the absence of dishonesty on his part and a counting error. These provisions of the law are consistent with the norms of international law and contain an exhaustive list of cases when it is permissible to recover overpaid wages from an employee.
Previously, the employer had a chance to recover from the employee the amount for unworked vacation days, since the issue was controversial and sometimes the courts granted such claims (see, for example, the ruling of the Novgorod Regional Court dated 08/07/2013 N 33-1145/2013; the ruling of the Kirov Regional Court dated 11.07 .2013 N 33-2465/2013).
Now you can't count on that. Since the conclusion about the impossibility of collecting vacation pay from a dismissed employee for unworked vacation days is included in the review of judicial practice of the Supreme Court of the Russian Federation, it is mandatory for all courts of general jurisdiction.
If, upon dismissal, the employee issued a written undertaking that within a certain period of time he would return to the employer the funds received for the vacation used in advance, but did not fulfill the obligation assumed, it will still not be possible to recover vacation pay in court. The existence of any agreements between the employee and the employer regarding the voluntary return of overpaid amounts is not indicated in the law as an independent basis for their forced collection (Supreme Court of the Russian Federation dated March 14, 2014 N 19-KG13-18).

Prepared answer:
Expert of the Legal Consulting Service GARANT
Panova Natalya

Response quality control:
Reviewer of the Legal Consulting Service GARANT
Komarova Victoria

The material was prepared on the basis of individual written consultation provided as part of the Legal Consulting service.

Labor Code of the Russian Federation); - reinstatement at work of an employee who previously performed this work, by decision of the state labor inspectorate or court (clause 2 of article 83 of the Labor Code of the Russian Federation); - recognition of the employee as completely incapable of working according to a medical report (clause 5 of Article 83 of the Labor Code of the Russian Federation); - death of an employee or employer - an individual, as well as recognition by the court of an employee or employer - an individual as deceased or missing (clause 6 of Article 83 of the Labor Code of the Russian Federation); - the occurrence of emergency circumstances that prevent the continuation of labor relations (military operations, catastrophe, natural disaster, major accident, epidemic and other emergency circumstances), if this circumstance is recognized by a decision of the Government of the Russian Federation or a state authority of the subject (clause 7 of Article 83 of the Labor Code of the Russian Federation) .

Vacation + dismissal? combine correctly

On this day, the employee should be given wages and payments stipulated by agreement with the employer in the employment contract (collective agreement).
In this case, vacation pay must be paid, as expected, 3 days before the start of the vacation (Part.
9 tbsp. 136 TK). In the case when, while on annual leave, an employee sends a request to the employer for another leave (this time with subsequent dismissal), the head of the enterprise has two scenarios for the development of events:

Due to the fact that granting leave with subsequent dismissal instead of making compensation payments for unused vacation days is the right, but not the obligation of the employer, the head of the company may refuse to satisfy this desire of the employee.

We return vacation pay to a resigned employee

After all, according to paragraph 2 of Art. 266 of the Tax Code of the Russian Federation, debt becomes uncollectible after the expiration of the limitation period.
True, in this situation, you will still have to adjust the tax base for income tax for the period of payment of vacation pay (letter from the Federal Tax Service of the Russian Federation for the city of No.

Moscow dated June 30, 2008 No. 20-12/061148). By the way, officials believe that if the debt is forgiven or written off (after the statute of limitations expires), the former employee will have taxable income.

This opinion was expressed in the letter of the Ministry of Finance of the Russian Federation dated June 17, 2014 No. 03-04-06/28915.

The employer, of course, will not be able to withhold personal income tax from him, but, according to financiers, he is obliged to submit information to the Federal Tax Service about the impossibility of withholding tax.

The position of the officials is not indisputable, because when paying vacation pay, personal income tax was already withheld from the employee.

However, in order to avoid disputes with the Federal Tax Service, it is better to submit the appropriate certificate.

Will I receive vacation pay if I have written a letter of resignation?

Unitech LLC 01/14/2016. After 2 months of work, Petrov A.I.

was granted leave for 14 days. And on May 20, 2016, he resigned. In this case, his length of service giving him the right to leave is 4 months and 7 days. The surplus is 7 days, which is less than half a month, so it is not taken into account in further calculations.

Thus, the vacation period of Petrov A.I. equals 4 months. Next, we determine the number of vacation days per hour worked. To do this, divide the number of vacation days allotted to the employee per year (28 days) by 12 and multiply by the vacation period. In this case, the result may not be an integer. In this case, the result obtained can be rounded to a whole number, but not according to the rules of arithmetic, but in favor of the employee (letter of the Ministry of Health and Social Development of Russia dated December 7, 2005 No. 4334-17). It is better to consolidate this procedure in the local regulatory act of the organization.

An employee quits while on vacation

If the employee was not at work on that day, then payments are made no later than the next day after the dismissed person submits a request for payment (Art.

140 TK). If an amount of money was left for a dismissed employee on the day of termination of the employment contract to make a settlement with him, but he did not show up for the money, then these funds can be kept in the cash register for only 5 days (clause 6.5 of the Central Bank Directive dated March 11, 2014 No. 3210- U). After this period ends, the money is deposited and returned to the bank.

The employee, having received all his vacation pay, decided to quit on the 1st day of vacation

In this order, you can cancel a previously issued order to grant an employee leave (in connection with his dismissal) (clause 1 of the order), set a new date for annual paid leave (up to and including the day of dismissal) (clause 2 of the order), resolve the issue of canceling earlier executed note-calculation and recalculation of vacation pay (clause 3 of the order).

Service note. A sample memo is shown below.

We complete the calculations The law limits the cases when a debt can be collected from an employee.

The case of the return of vacation pay for unworked vacation days falls into this list.

This norm is enshrined in paragraph 4 of part 2 of article 137 of the Labor Code of the Russian Federation. It should be noted that such deductions are a right and not an obligation of the employer.

If there is nothing to withhold overpaid vacation pay from, you must either sue the employee or “forget” about the debt.

Features of the dismissal procedure before vacation

“Mandatory” vacation at your own expense: what the Labor Code of the Russian Federation is silent about, No. 19
I want to know everything: questions about the vacation reserve, No. 18
How to calculate the length of service for leave “for harmfulness” in calendar days, No. 18
How to register a temporary worker for the period of vacation of main employees, No. 17
We pay for northerners to go on vacation, No. 15
Northern Holiday Rules, No. 14
Was going on vacation - ended up on sick leave, No. 13

Unauthorized leave = dismissal?, No. 24

Procedure for dismissal before vacation

Dismissal after voluntary leave is carried out as part of the normal procedure.

However, there are nuances, depending on exactly when the employee decided to terminate his employment relationship with the employer. We will analyze all the interesting points in the article. How to formalize a dismissal immediately after a vacation The procedure for notifying an employer upon dismissal after a vacation How to pay for dismissal after a vacation Features of voluntary dismissal after maternity leave How to formalize a dismissal immediately after a vacation The procedure for dismissal after a voluntary vacation is no different from dismissal on the same basis at any other time. In order to resign on his own initiative, the employee must submit a written application to the employer.
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The employer refused because the order contained personal data of employees who did not consent to their transfer to third parties.

Who did the court support? 03/02/2018 Submitting a vacation review.

If an employee is accrued vacation pay and then writes a letter of resignation

If the decision to write a letter of resignation was made by the employee after returning from vacation, then he can submit this petition to terminate the employment contract on his own initiative personally to the employer.

In addition, by agreement of the parties, dismissal can occur earlier, before the end of the 2-week period (Part 2). In the same case, when an employee decides to resign, having previously taken unused vacation, to which he is entitled in accordance with Part 2 of Art. 127 of the Labor Code, he will be able to submit a letter of resignation at any time; in this case, you will not need to work for 2 weeks, since vacation time is included in the period of so-called working off.

After all, labor legislation does not provide for any time limit between filing an application and going on vacation.

Forms N T-6 (T-6a) and T-60 were approved by Decree of the State Statistics Committee of Russia dated 01/05/2004 N 1. Cancellation of the original order. If an employee is dismissed before the end of the vacation, the duration of this vacation changes, and the amount of vacation pay changes accordingly.

The legislation does not directly indicate the need to cancel the original leave order and issue a new leave order of a different duration.

However, given that the accountant needs documentary justification to recalculate vacation payments, it is better to issue the above orders and, on their basis, re-fill out the calculation note for granting vacation. It would also be useful to draw up an accompanying memo.

Example 2. Let's use the condition of example 1. The employer does not object to the dismissal of the employee on June 5, 2013.

What actions must the employer take to dismiss V.I.

And sometimes vacation is granted, so to speak, in advance, with the expectation that the employee will subsequently work out the rest days he used. But what if he decides to quit without finishing his vacation?

Vacation is one of the ways to exercise the right to rest for employees working under employment contracts. As a general rule, the duration of the main vacation is 28 calendar days and it must be granted annually (Article 115 of the Labor Code of the Russian Federation).

If an employee has recently joined an organization, then the right to use vacation for the first year of work arises only after six months of continuous work with this employer. However, by agreement of the parties, leave can be granted to the employee earlier (Article 122 of the Labor Code of the Russian Federation). Thus, annual paid leave can be provided to an employee in advance, even if the working year has not been fully worked out. In this case, it is assumed that the employee will subsequently work off the unworked days of the used vacation.

But what to do if an employee quits without working out the rest days he used? Should an employee return part of the vacation pay that falls on unworked vacation days? Let's figure it out.

Can be withheld from the final payment

The company may deduct the excess amount of previously paid vacation pay from the salary paid to the employee upon dismissal. This right is given to her by Art. 137 Labor Code of the Russian Federation. True, the same article specifies situations when an organization does not have the right to withhold “extra” vacation pay from an employee (for example, if dismissal occurs due to staff reduction or liquidation of the company).

It should also be taken into account that the amount of deductions is limited. So, according to Art. 138 of the Labor Code of the Russian Federation, the total amount of all deductions for each payment of wages cannot exceed 20%. That is, the employer will be able to retain only that part of the excess vacation pay that falls within the 20% limit. To withhold excess vacation pay from “severance” payments, the employee’s consent is not required.

By the way, the amount of deductions from an employee’s salary is calculated from the amount remaining after taxes are withheld (letter of the Ministry of Health and Social Development of the Russian Federation dated November 16, 2011 No. 22-2-4852).

The remaining debt is voluntary

What if 20% of the final payment amount was not enough to pay off the entire vacation pay debt?

The only thing the company can do is ask the employee to pay off the remaining amount of the debt voluntarily. If the latter agrees, then repayment can be made by deducting the remaining 80% of “severance” payments, or the employee will deposit the required amount into the cash register or transfer it to the employer’s bank account.

When deducting a debt from the last salary due to a resigning employee, it is not at all necessary to split the deduction into two amounts, one of which falls within the 20% limit. You can deduct one amount at once. But the company must obtain from the employee an application to withhold the entire amount of the debt from his calculation. Such a document will indicate the employee’s will to dispose of accrued wages. In this case, the provisions of Art. 138 of the Labor Code of the Russian Federation on the 20% limitation should not be applied (letter of Rostrud dated September 26, 2012 No. PG/7156-6-1).

What to do if the employee refuses to pay the remaining balance of the debt? Is it possible to recover the required amount through the court in this case?

Unfortunately, there is little chance of this happening. In most cases, courts believe that a company cannot recover in court from an employee the amount of vacation pay for unworked rest days. This position can be seen in the rulings of the Supreme Court of the Russian Federation dated September 12, 2014 No. 74-KG14-3, dated March 14, 2014 No. 19-KG13-18, and the appeal ruling of the Moscow City Court dated December 4, 2013 in case No. 11-37421/2013. This legal position was reflected in the Review of Judicial Practice of the Supreme Court of the Russian Federation for the third quarter of 2013 (approved by the Presidium of the Supreme Court of the Russian Federation on February 5, 2014).

Therefore, if a company decides not to go to court, it has two options. The first is that the employer forgives the employee the remainder of the debt. The second is that the amount of debt “hangs” in the organization’s records until the statute of limitations expires. The second option is more profitable from a tax point of view, but we will talk about this in more detail below.

Calculating the excess vacation pay

First, let's explain how to calculate excess vacation pay. To understand what part of the vacation pay is unnecessary, it is necessary to determine the number of unworked vacation days. To do this, you need to calculate the number of vacation days that fall on the period of time worked in the last working year.

When calculating periods of work that give the right to leave, surpluses amounting to less than half a month are excluded from the calculation, and surpluses over half a month are rounded up to a full month. This procedure is prescribed in paragraph 35 of the Rules on regular and additional leaves, approved by the People's Commissar of the USSR on April 30, 1930 No. 169.

Example 1

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Petrov A.I. was hired as a lawyer at Unitech LLC on January 14, 2016. After 2 months of work, Petrov A.I. was granted leave for 14 days. And on May 20, 2016, he resigned.

In this case, his length of service giving him the right to leave is 4 months and 7 days. The surplus is 7 days, which is less than half a month, so it is not taken into account in further calculations.

Thus, the vacation period of Petrov A.I. equals 4 months.

In this case, the result may not be an integer. In this case, the result obtained can be rounded to a whole number, but not according to the rules of arithmetic, but in favor of the employee (letter of the Ministry of Health and Social Development of Russia dated December 7, 2005 No. 4334-17). It is better to consolidate this procedure in the local regulatory act of the organization.

Example 2

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Let's use the conditions of Example 1.

The number of hours worked by Petrov A.I. vacation days are determined as follows:

28 days / 12 months × 4 months = 9.33.

As you can see, the result of the calculation was not an integer. In this case, the company can round this number to the nearest whole in favor of the employee. Then it turns out that the number of vacation days worked by A.I. Petrov will be 10 days.

Then we calculate unworked vacation days. To do this, subtract the number of vacation days worked from the number of vacation days used.

Example 3

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From the conditions of Example 1 it is clear that Petrov A.I. was granted leave for 14 days. Considering that the number of vacation days worked was 10 days, 4 days (14 days - 10 days) are “undeserved”. This means that the company can withhold vacation pay for these 4 days from the “severance” payments of A.I. Petrov.

When calculating the amount to be withheld, you need to take into account the average daily earnings on which vacation pay was previously calculated. It is impossible to determine average daily earnings based on the billing period preceding the day of dismissal. Indeed, with this approach, it may turn out that more (or less) will be withheld from the employee than the amount of vacation pay that he received.

Do taxes need to be adjusted?

The company included the amounts of vacation pay previously paid to the employee into income taken into account when taxing profits, withheld personal income tax from them and charged insurance premiums. And now it turns out that part of the vacation pay was paid to the employee in excess. What to do with taxes and contributions? Do they need to be adjusted?

An employee’s debt for unworked vacation days arises not because the vacation was granted in violation of the law, but because the employee quits before the end of the working year for which he was granted vacation. Consequently, at the time the leave was granted in advance, the amount of holiday pay was paid legally. Thus, we cannot say that there is an error. And if so, then there is no need to make corrections to the tax accounting of that period.

However, amounts withheld to pay off debt (or amounts paid by the employee) should be included in taxable income. Such clarifications are given in letters of the Ministry of Finance of the Russian Federation dated December 3, 2009 No. 03-03-05/224, Federal Tax Service of Russia for Moscow dated January 11, 2007 No. 21-08/001467@.

As for insurance premiums, the amounts of vacation pay withheld (returned by the employee) should reduce the base for insurance premiums of the current reporting period. After all, the accrual of vacation pay for “advance” vacation is not an error in calculating the base relating to the previous reporting period in which the amount of the specified vacation pay was accrued in advance. Therefore, there is no need to make changes to the calculation of accrued and paid insurance premiums for previous periods. And officials confirm this (see letter from the Ministry of Health and Social Development of the Russian Federation dated May 28, 2010 No. 1376-19).

The situation with personal income tax is approximately the same. The company does not need to recalculate income in the period when the employee was paid vacation pay in advance. After all, when he receives income in the form of wages, the date of his actual receipt of income is recognized as the last day of the month for which the income was accrued (clause 2 of Article 223 of the Tax Code). Therefore, at the time of payment of vacation pay, the organization correctly withheld and transferred to the personal income tax budget the entire amount of vacation pay accrued and received by the employee in this reporting period.

However, an adjustment to taxable income will occur. But not “retrospectively,” but at the time of dismissal. The company needs to reduce the personal income tax calculated on dismissal payments by the amount of personal income tax previously withheld from unearned vacation pay. That is, the difference between the personal income tax calculated from the employee’s last salary and the personal income tax withheld from the amount of overpaid vacation pay is subject to payment to the budget.

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

The employee refused to return excess vacation pay

We wrote earlier that if an employee refuses to return excess vacation pay (in excess of the 20% limit), then the company can go to court. But success is unlikely. In case of loss, the company, firstly, will have to adjust its tax accounting data. The capital's tax authorities believe that the employer's expenses incurred in connection with the dismissal of an employee who did not work the days of the granted leave are not taken into account when forming taxable profit due to their non-compliance with the provisions of Article 252 of the Tax Code of the Russian Federation (letter of the Federal Tax Service of the Russian Federation for Moscow dated June 30, 2008 No. 20-12/061148).

Secondly, the employer will not be able to use clause 2 of Art. 266 of the Tax Code of the Russian Federation, according to which amounts of bad debts are included in expenses. The fact is that cases when a debt becomes hopeless are directly stated in this paragraph and the situation in question is not indicated there. The Ministry of Finance of the Russian Federation in letter dated 02.02.2006 No. 03-03-04/1/72 confirms the impossibility of attributing to expenses the amounts lost in court.

We also do not recommend forgiving debt; the amount of forgiven debt is not taken into account in expenses, since it does not meet the criteria established by clause 1 of Art. 252 of the Tax Code of the Russian Federation. In addition, in paragraph 16 of Art. 270 of the Tax Code of the Russian Federation expressly states that the value of gratuitously transferred property does not reduce taxable profit. This is confirmed by officials (letter from the Federal Tax Service of Russia for Moscow dated June 20, 2012 No. 16-15/053953@).

If the company does not go to court to collect excess vacation pay from the employee, then it can write off the resulting debt as expenses after the statute of limitations expires. After all, according to paragraph 2 of Art. 266 of the Tax Code of the Russian Federation, debt becomes uncollectible after the expiration of the limitation period.

True, in this situation, you will still have to adjust the tax base for income tax for the period of payment of vacation pay (letter of the Federal Tax Service of the Russian Federation for Moscow dated June 30, 2008 No. 20-12/061148).

By the way, officials believe that if the debt is forgiven or written off (after the statute of limitations expires), the former employee will have taxable income. This opinion was expressed in the letter of the Ministry of Finance of the Russian Federation dated June 17, 2014 No. 03-04-06/28915. The employer, of course, will not be able to withhold personal income tax from him, but, according to financiers, he is obliged to submit information to the Federal Tax Service about the impossibility of withholding tax.

The position of the officials is not indisputable, because when paying vacation pay, personal income tax was already withheld from the employee. However, in order to avoid disputes with the Federal Tax Service, it is better to submit the appropriate certificate.