How to take into account the payment of severance pay, average earnings for the period of employment and compensation upon dismissal?

Accounting for severance pay upon dismissal. income tax and insurance premiums. Completing the calculation.

Question: In section 3 of the Calculation of insurance premiums for the 1st quarter of 2017, is it necessary to include those who were paid in January 2017 the average monthly earnings for the period of employment (for 3 months, dismissed in 2016). If they are included, then the number of insured persons in subsection 1.1 of the Calculation will not agree with the SZV-M data.

Answer: Completions, payment of average earnings for the period of employment must be included in lines 030, 040 of subsection 1.1 and subsection 1.2, also in lines 020 and 030 of Appendix 2 to section 1. Also, the former employee must be included in the number of insured persons. Fill in section 3 for him. The former employee is not included in the SZV-M information. When reconciling the data, the FIU will ask you to clarify the discrepancies. The accountant needs to indicate the reasons for the discrepancy, i.e. that the average salary was paid for the period of employment of the former employee.

Rationale

How to take into account the payment of severance pay, average earnings for the period of employment and compensation upon dismissal

personal income tax and insurance premiums

For the purposes of calculating personal income tax and insurance premiums, payments upon dismissal established by law are standardized. The amount of severance pay and average monthly earnings for the period of employment is not subject to personal income tax and insurance premiums * provided that it does not exceed three times the average monthly earnings (six times the average monthly earnings - for employees working in the Far North and equivalent areas) . If payments exceed this standard, it is necessary to withhold personal income tax and accrue insurance premiums on a general basis. This follows from paragraph 3 articles 217, paragraph 6 subparagraph 2 of paragraph 1 of Article 422 of the Tax Code of the Russian Federation, subparagraphs and paragraph 1 of Article 20.2 of the Law of July 24, 1998 No. 125-FZ.

Five tips for preparing the perfect first quarter assessment

Include payments that are exempt from contributions

In line 030 of subsection 1.1, reflect all income from labor and civil law contracts (clause, article 420 of the Tax Code of the Russian Federation). Including payments that the Code exempts from insurance premiums*.

Below in line 040, also reflect non-taxable income, which are listed in article 422 Tax Code of the Russian Federation*. For example, hospital and child benefits. In line 050, calculate the contribution base - the difference between lines 030 and 040.

If the company forgot to reflect non-taxable payments in the calculation, this is a mistake. But it does not lead to an underestimation of the base, so the inspectors are not entitled to fine for such a violation. It is also not necessary to submit

Upon dismissal due to staff reduction, the employee receives special payments. Do I need to tax them with personal income tax and insurance premiums? If yes, in what order? The answers to these and other questions are in the article prepared with the participation of E.V. Vorobieva, member of the expert council of the Chamber tax consultants, k.e. n.

When an employee is dismissed due to a reduction in the number or staff, he is guaranteed several mandatory payments. Among them:

Salary for the time actually worked in the month of dismissal (part 1 of article 140 of the Labor Code of the Russian Federation);

Compensation for unused vacation (Article 127 of the Labor Code of the Russian Federation);

Severance pay (part 1 of article 178 of the Labor Code of the Russian Federation);

Average earnings for the period of employment (parts 1 and 2 of article 178 of the Labor Code of the Russian Federation).

Note. The procedure and examples for calculating these payments in accordance with the norms of labor legislation are given on p. 46.

In some cases, additional compensation is paid for early termination of labor relations (part 3 of article 180 of the Labor Code of the Russian Federation).

An employment or collective agreement may provide for special grounds for the payment of severance pay, as well as increased amounts (part 4 of article 178 of the Labor Code of the Russian Federation).

In this article, we will consider the nuances of withholding personal income tax and calculating insurance premiums:

From severance pay;

Average earnings for the period of employment;

Additional compensation for early termination of employment.

personal income tax

All types of compensation payments established by the current legislation of the Russian Federation (within the limits determined by the legislation of the Russian Federation) associated with dismissal are not subject to personal income tax (clause 3 of article 217 of the Tax Code of the Russian Federation).

Note. Wages for the month of dismissal and compensation for unused vacation are subject to personal income tax (paragraph 6 of paragraph 1 of article 208, paragraph 1 of article 210 and paragraph 3 of article 217 of the Tax Code of the Russian Federation).

The exception in par. 8 p. 3 art. 217 of the Tax Code made for payments in the form of:

severance pay;

Average monthly earnings for the period of employment;

Compensation to the head, deputy heads and chief accountant of the organization.

These payments in the part exceeding in general three times the average monthly salary or six times the average monthly salary for employees dismissed from organizations located in the Far North and equivalent areas are subject to personal income tax.

Let's see how to apply this rule.

List of normalized payments for personal income tax

In practice it is possible different interpretations the provisions of paragraph 3 of Art. 217 of the Tax Code.

Position of the Ministry of Finance of Russia

According to experts of the Ministry of Finance of Russia, compensation payments in connection with dismissal, for which a limit is set that is not subject to personal income tax (three (six) times the average monthly salary), includes the amount of additional compensation paid for early termination of employment relations (Letter of the Ministry of Finance of Russia dated 07/08/2013 No. 03-04-05/26273).

This means that when calculating payments guaranteed to an employee upon dismissal due to a reduction in staff, for comparison with the established standard, the accountant is offered sum up all guaranteed employee compensation:

severance pay;

Average earnings for the period of employment;

Additional compensation for early termination of employment.

Example 1. Personal income tax for the third month after dismissal

On May 30, 2014, the employer notified employee O.L. Segurov about layoffs in connection with reduction of the company's staff on August 1, 2014. Two weeks later, he offered the employee to terminate the employment contract ahead of schedule, on July 1, 2014, with the payment of additional compensation.

- additional compensation in the amount of average earnings for the period from July 2 to August 1, 2014 (part 3 of article 180 of the Labor Code of the Russian Federation);

- severance pay in the amount of average earnings for the period from July 2 to August 1, 2014.

Until September 1, 2014 O.L. Segurov did not find a job. Based on the application former employee employer paid him average earnings for the second month after dismissal for the period from July 2 to September 1, 2014 with offset of severance pay.

O.L. Segurov did not find a job until October 1, 2014 and applied to his former employer for payment average earnings for the third month after dismissal (from September 2 to October 1, 2014). Within two weeks after his dismissal, he registered with the employment service and was not employed, which is confirmed by a certificate from the employment service.

Is the average earnings for the third month after dismissal due to staff reduction subject to personal income tax?

The accountant takes into account the opinion of specialists of the Ministry of Finance of Russia, set out in the Letter dated 08.07.2013 N 03-04-05 / 26273.

Solution. According to the Letter of the Ministry of Finance of Russia dated 08.07.2013 N 03-04-05 / 26273, payments upon dismissal in an amount not exceeding three times the average monthly salary are not subject to personal income tax.

Order number of payment

For O.L. Segurov's payment for the third month after being laid off for redundancy is, in fact, fourth average salary after:

Additional compensation in the amount of average earnings for the period from July 2 to August 1, 2014;

Average earnings for the second month after dismissal for the period from July 2 to September 1, 2014

Accrual of personal income tax

If we adhere to the position of specialists of the Ministry of Finance of Russia, the average earnings for the third month after the dismissal, the employer needs impose personal income tax.

Position of arbitrators

According to the judges of the Supreme Court of the Komi Republic, additional compensation for early dismissal is not subject to personal income tax without any conditions.

The arbitrators motivated their conclusion by the fact that in paragraphs. "a" paragraph 7 of Art. 1 of the Federal Law of November 21, 2011 N 330-FZ, which introduced restrictions on the text of paragraph 3 of Art. 217 of the Tax Code, not specified additional compensation for early dismissal. This is stated in the Ruling of the Supreme Court of the Komi Republic dated May 10, 2012 N 33-1663AP/2012.

That is, this payment does not need to be taken into account when calculating the amount of compensation subject to personal income tax in connection with dismissal due to staff reduction.

This is all the more true since this payment is not voluntary for the employer. He is obliged to accrue it if the employee agrees to quit early.

That is, this payment is a mandatory guarantee in full compliance with the norms of the current labor legislation. And such payments not subject to income tax on the basis of paragraph 3 of Art. 217 of the Tax Code.

However, we want to warn readers that this position may have to be defended in court.

Note. Personal income tax from payments upon dismissal for other reasons

The finance department believes that no need to pay income tax dismissal payments in an amount not exceeding three times the average monthly salary, if the dismissal occurs:

- by agreement of the parties, and the condition on the amount and procedure for paying the severance pay is enshrined in the agreement on termination of the employment contract, which is an integral part of the employment contract (Letter dated 10/17/2013 N 03-04-06 / 43505);

Due with exit company employee on retire(Letters of July 21, 2014 N 03-04-05/35552 and of October 11, 2013 N 03-04-06/42433).

The maximum amount of the amount not subject to personal income tax

The tax legislation does not establish the procedure for calculating the standard with which to compare the actually accrued amount of compensation paid in the event of dismissal.

Let us return once again to the text of paragraph 3 of Art. 217 of the Tax Code. It follows from it that the total amounts of severance pay and average earnings for the period of employment accrued to the employee are clearly not subject to personal income tax. according with the current legislation of the Russian Federation, legislative acts of the constituent entities of the Russian Federation, decisions of representative bodies of local self-government in within the limits established in accordance with the legislation of the Russian Federation.

Mandatory payments

The amounts of severance pay and average earnings for the period of employment accrued to the employee on the basis of Part 1 of Art. 178 of the Labor Code, do not fall into the taxable base for personal income tax, since they are recognized as established by the current labor legislation.

Employer must make such payments regardless of the terms of the employment contract or other agreement, local regulatory act.

Increased payout

Do not fall under the benefit of paragraph 3 of Art. 217 of the Tax Code, payments that are provided for by the collective agreement, local normative act, labor contract, above established by the current legislation norms.

In terms of exceeding the amounts established by the current legislation, payments subject to personal income tax.

What amounts to compare

For purposes personal income tax calculations it is necessary to compare the total amount of severance pay and average earnings for the period of employment accrued to the employee in the actual (increased) amount, and a similar indicator calculated in full accordance with the norms of Part 1 of Art. 178 of the Labor Code. The difference between these figures will be subject to VAT.

Comparative list of mandatory and optional payments upon dismissal due to staff reduction, see table. 1 below.

Table 1

Mandatory and optional payments upon dismissal of an employee due to staff reduction

The employer must pay	The employer is not required, but may
1. Severance pay in the amount of the average monthly earnings upon termination of the employment contract on the basis of Part 1 of Art. 81 of the Labor Code (part 1 of article 178 and part 1 of article 318 of the Labor Code of the Russian Federation)	Provide for other cases of payment of severance pay or establish increased amounts of payments (part 4 of article 178 of the Labor Code of the Russian Federation)
2. Average earnings for the period of employment: For the second and third months after dismissal (parts 1 and 2 of article 178 of the Labor Code of the Russian Federation); For the second - sixth months after dismissal (in the regions of the Far North and equivalent areas) (parts 1 and 2 of article 318 of the Labor Code of the Russian Federation)
3. Additional compensation in the amount of average earnings in proportion to the time not worked in the event of termination of the employment contract before the expiration of the warning period (Article 180 of the Labor Code of the Russian Federation)

It turns out that the taxable base for calculating personal income tax from the amounts of severance pay and average earnings for the period of employment arises only if a local regulation, collective or employment agreement establishes an increased amount of these payments (part 4 of article 178 of the Labor Code of the Russian Federation).

Example 2. Personal income tax with an increased amount of payments with a reduction

Translator P.B. Sharikov has been with the company since December 3, 2012. His work schedule is a 40-hour work week (with two days off: Saturday and Sunday).

In accordance with paragraph 2 of part 1 of Art. 81 of the Labor Code On April 30, 2014, he received a notice of the upcoming dismissal due to staff reduction July 11, 2014

P.B. Sharikov agreed that he would resign on May 15, 2014. In the first week after P.B. Sharikov turned to the employment service, but until the end of the third month after his dismissal, he was not employed.

At the end of both the second and third months, the employee turned to the former employer with the necessary documents.

The collective agreement of the company establishes that in case of dismissal of employees due to a reduction in staff (or number), they are paid a severance pay in the amount of double the average salary.

Average daily earnings for calculating severance pay, average earnings for the period of employment and additional compensation for early termination of employment is RUB 2882.93

It is necessary to determine the amount of personal income tax to be withheld from compensation payments upon dismissal of an employee due to a reduction in staff, if it is known that:

The employee is a tax resident of the Russian Federation;

Rights to tax deductions does not have.

Solution. In connection with the early termination of employment relations upon dismissal due to staff reduction, the employee is entitled to the following compensation payments:

- additional compensation for the period from May 16 to July 11, 2014 for 39 business days in total RUB 112,434.27(2882.93 rubles x 39 working days);

- severance pay for the period from May 16 to June 15, 2014 for 19 business days in total RUB 109,551.34(2882.93 rubles x 19 working days x 2). In a single amount, this payment would be RUB 54,775.67(2882.93 rubles x 19 working days);

- average earnings for the period of employment from June 16 to August 15, 2014 (including severance pay calculated in accordance with the norm of part 1 of article 178 of the Labor Code) for 45 working days in total RUB 129,731.85(2882.93 rubles x 45 working days).

Additional compensation for early termination of the employment contract is not subject to personal income tax.

The actually accrued total amount of severance pay and average earnings for the period of employment is equal to RUB 239,283.19(109,551.34 rubles + 129,731.85 rubles).

The same indicator, calculated in accordance with the norms of Part 1 of Art. 178 of the Labor Code, will be RUB 184,507.52(54,775.67 rubles + 129,731.85 rubles).

Taxable base to withhold personal income tax - RUB 54,775.67(239,283.19 rubles - 184,507.52 rubles). Sum personal income tax is equal to 7121 rub.(54,775.67 rubles x 13%).

Employee fired, hired again and fired again

Dismissal payments can be made in different tax periods, an employee can quit several times during the tax period.

In these cases, we will show how to apply the restriction to excess compensation payments by an example.

Example 3. An employee quit for the second time in a year

In December 2013, employee V.P. Takhov, upon his dismissal in connection with the liquidation of a division of Aragon LLC, was paid a severance pay in accordance with the collective agreement. In January 2014, he applied to his former employer for payment of the average salary for the second month after his dismissal.

In May 2014, he was hired by another division of Aragon LLC. And on September 1, 2014, he was fired due to retirement. The collective agreement provides for the payment of a lump-sum allowance.

Is the company entitled not to tax personal income tax on the amount of all payments to the employee upon dismissal in the part not exceeding three times the average monthly salary, regardless of the fact that the payments were made in different tax periods?

Is it possible, for the purpose of applying personal income tax, to apply three times the average monthly salary to each case of dismissal of an employee?

Solution. When an employee left at the end of 2013, part of the payments provided for by the collective agreement was made at the end of 2013, and the rest of the payments - at the beginning of the next tax period.

In order to apply paragraph 3 of Art. 217 of the Tax Code (Letter of the Ministry of Finance of Russia dated April 29, 2013 N 03-04-06 / 14970):

All severance payments are taken into account in total, even if they are made in different tax periods;

- limitation three times the average monthly salary should be applied in relation to each individual case dismissal of an employee.

That is, in the first case of dismissal (at the end of 2013), all payments to V.P. Takhov are not subject to personal income tax in the part not exceeding three times the average monthly salary.

In the second case of dismissal (in September 2014), payments in connection with dismissal are also not subject to personal income tax in the part not exceeding three times the average monthly salary.

Insurance premiums

All payments guaranteed upon dismissal due to downsizing are included in the object of taxation of insurance premiums (part 1 of article 7 of the Federal Law of July 24, 2009 N 212-FZ, hereinafter - Law N 212-FZ, and clause 1 of Art. 20.1 of the Federal Law of July 24, 1998 N 125-FZ). However, contributions are not required in all cases.

At general and reduced rates. Compensation payments related to the dismissal of employees are not subject to insurance premiums to the Pension Fund of the Russian Federation, the FSS of the Russian Federation and the FFOMS, as well as contributions in case of injury. The exception is compensation for unused vacation (subparagraphs "e", paragraph 2, part 1, article 9 of Law N 212-FZ and paragraph 2, paragraph 1, article 20.2 of Federal Law N 125-FZ). It is subject to insurance premiums.

From January 1, 2015, the list of exclusions from the list of non-taxable payments is expanding (see Table 2). Severance pay and average monthly earnings for the period of employment will be subject to insurance premiums in terms of excess (subparagraph "a" of paragraph 3 of article 2, subparagraph "a" of paragraph 1 of article 5 and article 6 of the Federal Law of 06/28/2014 N 188-FZ):

Three times the average monthly salary;

Six times - for employees dismissed from organizations located in the regions of the Far North and equivalent areas.

table 2

Taxation of insurance premiums on payments guaranteed to an employee upon dismissal

due to downsizing

At additional rates. If an employee dismissed due to a reduction in staff was employed in jobs giving the right to early retirement, when calculating guaranteed payments to him, it is necessary to take into account the procedure for taxing them with insurance pension contributions at additional rates.

The object and taxable base for calculating pension contributions for additional tariffs are determined in accordance with the norms of Law N 212-FZ. In 2014, wages and compensation for unused vacation are subject to insurance premiums at additional rates, and severance pay and average earnings for the period of employment are not taxed.

Note. Read about the application of additional rates of insurance premiums on the website e.zarp.ru

"Payment of contributions at an additional rate" (2013, No. 6);

"Contributions for additional tariffs if the employee worked in harmful conditions for less than a full month" (2014, N 3).

The amount of severance pay, from which personal income tax must be withheld, amounted to: - 23,864 rubles. (50,000 rubles - 26,136 rubles). The employee was reinstated at work Situation: is it necessary to withhold personal income tax and accrue insurance premiums for the amount of mandatory payments upon dismissal, if the employee was reinstated at work Yes, it is necessary. By general rule the amount of severance pay and other payments upon dismissal provided for by law (with the exception of compensation for unused vacation) is not subject to personal income tax and insurance premiums (within the established standard). However, if the employee was reinstated, the amounts that were previously paid in connection with the dismissal cannot be considered compensatory. After all, they will be offset when paying the employee a salary for the period of forced absenteeism (paragraph 62 of the decision of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2).

Personal income tax and contributions from payments in case of staff reduction (Lena n.a.)

Sharikov agreed that he would resign on May 15, 2014. In the first week after P.B. Sharikov turned to the employment service, but until the end of the third month after his dismissal, he was not employed. At the end of both the second and third months, the employee turned to the former employer with the necessary documents.

The company's collective agreement establishes that in the event of dismissal of employees due to a reduction in staff (or headcount), they are paid a severance pay in the amount of double the average earnings. The average daily earnings for calculating severance pay, average earnings for the period of employment and additional compensation for early termination of employment is 2882.93 rubles.

Severance pay and severance pay

Attention

Is the average earnings for the third month after dismissal due to staff reduction subject to personal income tax? The accountant takes into account the opinion of specialists of the Ministry of Finance of Russia, set out in the Letter dated 08.07.2013 N 03-04-05 / 26273. Solution. According to the Letter of the Ministry of Finance of Russia dated 08.07.2013 N 03-04-05 / 26273, payments upon dismissal in an amount not exceeding three times the average monthly salary are not subject to personal income tax. Serial number of payment For O.L. Segurov's payment for the third month after being laid off for redundancy is, in fact, the fourth average earnings after: - additional compensation in the amount of average earnings for the period from July 2 to August 1, 2014; — severance pay in the amount of average earnings for the period from July 2 to August 1, 2014; - average earnings for the second month after dismissal for the period from July 2 to September 1, 2014.

Retained earnings for the duration of employment in case of reduction

Salary for the month of dismissal Subject to insurance premiums in the general manner Compensation for unused vacation Severance pay Not subject to insurance premiums in the full amount Not subject to insurance premiums the total amount within three (six) monthly average earnings Average earnings for the period of employment At additional rates. If an employee dismissed due to a reduction in staff was employed in jobs giving the right to early retirement, when calculating guaranteed payments to him, it is necessary to take into account the procedure for taxing them with insurance pension contributions at additional rates. The object and taxable base for calculating pension contributions for additional tariffs are determined in accordance with the norms of Law N 212-FZ.
In 2014

Is retained earnings subject to personal income tax at the time of employment?

The employee resigned of his own free will Situation: is it necessary to withhold personal income tax and accrue insurance premiums upon dismissal of an employee of his own free will (by agreement of the parties)? The payment of severance pay upon dismissal is provided for by the employment contract. Severance pay does not need to be subject to personal income tax and insurance premiums within the established norm. The amount of severance pay and average monthly earnings for the period of employment is not subject to personal income tax and insurance premiums, provided that it does not exceed three times the average monthly earnings (six times the average monthly earnings - for employees working in the Far North and equivalent areas).
From payments exceeding this standard, it is necessary to withhold personal income tax and accrue insurance premiums on a general basis.
The exception is compensation for unused vacation (subparagraphs “e”, paragraph 2, part 1, article 9 of Law N 212-FZ and paragraph 2, paragraph 1, article 20.2 of Federal Law N 125-FZ). It is subject to insurance premiums. From January 1, 2015, the list of exclusions from the list of non-taxable payments is expanding (see Table 2). Severance pay and average monthly earnings for the period of employment will be subject to insurance premiums in excess (clauses
"a" paragraph 3 of Art. 2, pp. "a" paragraph 1 of Art. 5 and Art. 6 of the Federal Law of June 28, 2014 N 188-FZ): - three times the average monthly salary; - six times - for employees dismissed from organizations located in the regions of the Far North and equivalent areas. Table 2 Taxation of insurance premiums on payments guaranteed to an employee upon dismissal due to staff reduction Name of payment Period until December 31, 2014 from January 1, 2015
Accounting For accounting purposes, severance pay, average earnings for the period of employment and compensation upon dismissal are labor costs (clauses 5 and 8 of PBU 10/99). Reflect the accrual of these payments by posting: Debit 20 (23, 25, 26, 44 ...) Credit 70 - severance pay accrued to employees, compensation upon dismissal; Debit 20 (23, 25, 26, 44 ...) Credit 76 - accrued former employees average earnings for the period of employment. The use of account 76 “Settlements with other debtors and creditors” for settlements with former employees is due to the fact that on account 70 only settlements with personnel working in the organization at the time the payment is accrued (Instructions for the chart of accounts) are taken into account.
An example of the reflection in accounting of a severance pay for an employee dismissed during the liquidation of the organization P.A. Bespalov works as a storekeeper at Alfa LLC.

Average earnings for the period of employment for the second month taxation

Even if it is paid to former employees of the main production, then at the time of payment it is impossible to call them participating in the production (paragraph 7, clause 1, article 318 of the Tax Code of the Russian Federation). If the organization provides services, then direct costs can be taken into account, as well as indirect ones, at the time of their accrual (paragraph 3, clause 2, article 318 of the Tax Code of the Russian Federation). In trading organizations, all these payments will be indirect costs (para.
3 art. 320

Info

Tax Code of the Russian Federation). Therefore, take them into account when calculating income tax in the month in which they were accrued. An example of reflection in accounting and taxation of severance pay for an employee dismissed due to staff reduction. The organization applies the general system of taxation Yu.I.

Kolesov works as a driver at Alfa LLC (the organization is engaged in the provision of services). On May 5, he was fired due to a reduction in staff, of which he was notified in a timely manner. The average daily earnings of Kolesov amounted to 500 rubles / day.

Average earnings for the period of employment for the second month taxes

From part one and part two of Art. 178 of the Labor Code of the Russian Federation it follows that the employee is paid: on the day of dismissal - severance pay in the amount of average earnings; if within the second month from the moment of dismissal the employee does not find a job - the average earnings for this month; if, within two weeks from the moment of dismissal, the employee applied to the public employment service and was not employed by him within three months from the date of dismissal, then in exceptional cases, by decision of the employment agency, the employee is paid the average earnings for this third month. 4. Publishing house "Accounting" In addition, there is not a single ground for termination of employment relations under which compensation for unused vacation could not be paid. Compensation is paid even if it is known that a new employment contract will be concluded with the dismissed employee.

Kolesov was credited and given a severance pay. The allowance was calculated in the amount of average earnings for the first month after dismissal (from April 29 to May 28). In the first month after dismissal, 19 working days. Kolesov's severance pay was: 19 days. × 500 rubles/day = 9500 rubles. Since Kolesov is simultaneously engaged in two activities, it is necessary to distribute the amount of the benefit paid. In April, the total amount of income for all types of activities amounted to 1,000,000 rubles. (without VAT). Income from the activities of the organization on the general taxation system - 250,000 rubles. The share of income from the activities of the organization on the general taxation system in the total amount of income amounted to: 250,000 rubles. : 1,000,000 rubles = 0.25. The amount of severance pay, which relates to the activities of the organization on the general taxation system, is: 9500 rubles. × 0.25 = 2375 rubles.
The procedure for reflecting severance benefits (average earnings for the period of employment, compensation upon dismissal) in tax accounting depends on the method of accounting for income and expenses that the organization uses. If the organization uses the accrual method, include the amount of severance pay (compensation upon dismissal) as part of direct or indirect costs. The moment of recognition of expenses depends on whether they relate to direct or indirect expenses (Article 318 of the Tax Code of the Russian Federation). If the organization is engaged in the production and sale of products (works, services), define the list of direct costs in accounting policy(Clause 1, Article 318 of the Tax Code of the Russian Federation). Attention: when approving the list of direct expenses in the accounting policy, please note that the division of expenses into direct and indirect should be economically justified (letters of the Ministry of Finance of Russia dated January 26, 2006 No. 03-03-04 / 1/60, the Federal Tax Service of Russia dated February 24, 2011 No. KE-4-3/2952).

Federal tax service <…>regarding income tax individuals payment made to an employee of the organization upon dismissal by agreement of the parties, reports the following.

On January 1, 2012, a new version of paragraph 3 of Article 217 of the Tax Code of the Russian Federation (hereinafter referred to as the Code) came into force, according to which compensation payments established by law are exempt from personal income tax Russian Federation related to the dismissal of employees, in the form of severance pay, average monthly earnings for the period of employment, compensation to the head, deputy heads and chief accountant of the organization in the part not exceeding in general three times the average monthly salary or six times the average monthly salary for employees dismissed from organizations located in the regions of the Far North and equivalent areas.

These amendments were made by Federal Law No. 330-FZ dated November 21, 2011 "On Amendments to Part Two of the Tax Code of the Russian Federation, Article 15 of the Law of the Russian Federation "On the Status of Judges in the Russian Federation" and Recognizing Certain Provisions of Legislative Acts of the Russian Federation as Invalid".

In this way, payments made from January 1, 2012 to an employee of the organization upon dismissal, including severance pay and average monthly earnings for the period of employment, are exempted from personal income tax in an amount not exceeding a total of three times the average monthly earnings (six times the average monthly earnings for employees dismissed from organizations located in the regions of the Extreme North and equated areas).

Said provisions paragraph 3 of Article 217 of the Code are applied regardless of the position held by the employees of the organization, as well as the grounds on which the dismissal is made.

In accordance with paragraph 1 of Article 231 of the Code, excessively withheld tax agent from the income of the taxpayer, the amount of tax is subject to return by the tax agent on the basis of a written application of the taxpayer.

Acting State Councilor of the Russian Federation III class D.V. Egorov

Expert comment

Personal income tax: payments made upon dismissal by agreement of the parties

• severance pay;
• average monthly earnings for the period of employment.

Federal Law No. 330-FZ dated November 21, 2011, subparagraph 3 of paragraph 1 of Article 217 of the Tax Code of the Russian Federation was supplemented by a new eighth paragraph. It refers to the exemption from personal income tax of the amount of payments in the form of severance pay, average monthly earnings for the period of employment, compensation to the head (his deputies) and the chief accountant of the organization in the part that does not generally exceed three times the average monthly earnings (six times the average monthly earnings for employees dismissed from organizations located in the regions of the Far North and equivalent areas). This rule has been in effect since January 1, 2012.

From the wording of the new paragraph, it is not clear which dismissed employees should be paid severance pay and average monthly earnings for the period of employment, so that such amounts are not subject to personal income tax: the head (his deputies) and the chief accountant or each employee of the organization? If for each employee, then in what amount: in full, or in the specified part? What is the reason for the dismissal?

According to the clarifications of the Federal Tax Service of Russia in the commented letter, the provisions of paragraph 3 of Article 217 of the Tax Code of the Russian Federation apply regardless from position employees of the organization, and also regardless of grounds, according to which dismissal. Payments made from January 1, 2012 to an employee of an organization upon dismissal, including severance pay and average monthly earnings for the period of employment, are exempt from personal income tax in a certain amount. It must not exceed generally three times the average monthly salary (six times the average monthly salary for employees laid off from organizations located in the Far North and equivalent areas).

About retirement benefits

The employer pays the dismissed employee:

• wages for days worked in the month of dismissal;
• compensation for unused vacation (Article 127 of the Labor Code of the Russian Federation);
• severance pay (Articles 178, 296, 318 of the Labor Code of the Russian Federation);
• average earnings saved for the duration of employment (Articles 178, 318 of the Labor Code of the Russian Federation).

Upon termination of the employment contract, payment of all amounts due to the employee from the employer, including compensation upon dismissal, is made on the last day of work. This follows from parts 3 and 4 of article 84.1 of the Labor Code of the Russian Federation.

If the set day coincided with a weekend or non-working holiday, then payments upon dismissal are made on the eve of this day.

Compensation for unused vacation

Upon dismissal, the employee is paid monetary compensation for all unused vacations.

At the written request of the employee, unused vacations may be granted to him with subsequent dismissal (with the exception of cases of dismissal for guilty actions). The day of dismissal will be considered the last day of vacation.

The amount of compensation is calculated by multiplying the number of days of unused vacation of the employee by his average daily earnings.

The number of days of unused vacation is determined in accordance with the Procedure for calculating compensation upon dismissal, specified in the Rules on regular and additional vacations. They were approved by the Decree of the NCT of the USSR dated April 30, 1930 No. 169.

The average daily wage is determined in accordance with Article 139 of the Labor Code of the Russian Federation. According to this article, it is calculated for the last 12 calendar months by dividing the amount of accrued wages by 12 and by 29.4 (average monthly number of calendar days).

severance pay

Severance pay upon dismissal can be paid in the amount of:

• two-week average earnings;
• monthly average earnings.

It all depends on the reason for the dismissal.

The employer must pay severance pay upon dismissal in the amount of two weeks' earnings if the dismissal occurred due to the following circumstances:

• refusal of the employee to transfer to another job, necessary for him in accordance with the medical report;
• conscription of an employee for military service;
• the reinstatement of another employee who previously performed this work;
• refusal of the employee to transfer to work in another area together with the employer.

Upon termination of an employment contract with an employee engaged in seasonal work, in connection with the liquidation of the organization, reduction in the number or staff, severance pay is paid in the amount of two weeks of average earnings (part 3 of article 296 of the Labor Code of the Russian Federation).

Severance pay upon dismissal in the amount of monthly average earnings is paid to an employee if:

• the employer organization is liquidated;
• reduction in the number of employees;
• the termination of the employment contract occurred due to a violation of the rules for its conclusion through no fault of the employee. In a situation where a violation of the rules of an employment contract is committed through the fault of an employee, he is not paid severance pay (part 3 of article 84 of the Labor Code of the Russian Federation).

Severance pay upon dismissal of employees with whom an employment contract has been concluded for a period of up to two months, as a rule, is not paid (part 3 of article 292 of the Labor Code of the Russian Federation).

Average earnings retained for the duration of employment

When terminating an employment contract due to the liquidation of an organization or a reduction in staff, the employee retains the average monthly salary for the period of employment, but not more than two months (including severance pay).

In exceptional cases, the average monthly salary is retained by the dismissed employee for the third month from the date of dismissal by decision of the body of the employment service. Provided that within two weeks after the dismissal, the employee applied to this body and was not employed by him.

An employee dismissed from an organization located in the regions of the Far North and areas equivalent to them, in connection with the liquidation of the organization or a reduction in the number or staff of employees, retains the average monthly salary for the period of employment, but not more than three months from the date of dismissal (including the day off benefits). In exceptional cases, the average monthly salary is retained by the specified employee for the fourth, fifth and sixth months from the date of dismissal by decision of the employment service body, provided that in month after the dismissal, the employee applied to this body and was not employed by him.

reference: guarantees to the head of organizations, his deputies and the chief accountant in case of dismissal for special reasons (due to a change in the owner of the organization’s property, in the event of termination of the employment contract) are provided for in Articles 181 and 279 of the Labor Code of the Russian Federation.

Tax consultant O.L. Alekseeva

in an amount not exceeding in total

three average monthly earnings

All types of compensation payments established by the current legislation related to dismissal (with the exception of compensation for unused vacation) are not subject to personal income tax (paragraph 6, clause 3, article 217 of the Tax Code of the Russian Federation).

From January 1, 2012, this rule states that the amounts of payments in the form of severance pay, average monthly earnings for the period of employment are subject to personal income tax in the part exceeding in aggregate three times the average monthly earnings. For employees of organizations located in the regions of the Far North and equivalent areas - six times the average monthly salary (paragraph 8, clause 3, article 217 of the Tax Code of the Russian Federation).

Recall that upon termination of an employment contract in connection with the liquidation of an organization, a reduction in the number or staff of employees, the dismissed employee is paid a severance pay in the amount of the average monthly salary (part 1 of article 178 of the Labor Code of the Russian Federation). At the same time, an increased amount of severance pay may be established by an employment or collective agreement (part 4 of article 178 of the Labor Code of the Russian Federation). Despite the fact that the labor legislation gives the employer the right to pay severance pay in increased size, according to the regulatory authorities, only one average monthly salary is not subject to personal income tax (see Letter of the Federal Tax Service of Russia for Moscow dated March 30, 2011 N 20-14 / 3 / [email protected]). This is explained by the fact that, according to paragraph 3 of Art. 217 of the Tax Code of the Russian Federation, the exemption applies to compensation paid within the limits established in accordance with the law. And the Labor Code of the Russian Federation provides for a severance pay in the amount of one average monthly salary.

In connection with the entry into force of this amendment, employers have the following question: in what amount is the severance pay paid in an increased amount in accordance with the terms of an employment or collective agreement not subject to personal income tax? Two options are possible:

Severance pay paid in accordance with Part 1 of Art. 178 of the Labor Code of the Russian Federation, is not subject to personal income tax in the amount of one average monthly salary, that is, within the limits determined by labor legislation. After all, the condition of par. 1 p. 3 art. 217 of the Tax Code of the Russian Federation on exemption from taxation of compensation payments within the established norms continues to be valid after December 31, 2011;

This severance pay is not subject to personal income tax in the amount of three average monthly earnings (six - for organizations of the Far North). In favor of this point of view is the fact that from January 1, 2012 such a rule was established directly by par. 8 p. 3 art. 217 of the Tax Code of the Russian Federation.

It should be noted that in accordance with Part 1 of Art. 178 of the Labor Code of the Russian Federation, in addition to the severance pay, the employee also retains the average monthly salary for the period of employment, but not more than two months from the date of dismissal (with the severance pay offset). In exceptional cases, the average earnings are maintained for the third month (part 2 of article 178 of the Labor Code of the Russian Federation). According to Art. 318 of the Labor Code of the Russian Federation for employees of organizations located in the regions of the Far North and equivalent areas, as a general rule, average earnings are maintained for the period of employment, but not more than three months (in exceptional cases during the fourth, fifth and sixth months) from the date of dismissal. Thus, given the new wording of paragraph 3 of Art. 217 of the Tax Code of the Russian Federation, it can be concluded that the aggregate of these payments in the amount of three (six) average monthly earnings, and not each payment separately, is exempt from personal income tax.

Explaining the innovations, the Ministry of Finance of Russia indicated that the provision of par. 8 p. 3 art. 217 of the Tax Code of the Russian Federation applies to the income of all employees of the organization, regardless of their position (Letters of the Ministry of Finance of Russia dated 08.21.2012 N 03-04-05 / 1-982, dated 07.31.2012 N 03-04-05 / 1-901, N 03 -04-05/1-903 , N 03-04-06/1-209 , dated 05/30/2012 N 03-04-05/1-664 , dated 03/26/2012 N 03-04-05/6-368 , dated 03/26/2012 N 03-04-06 / 6-72 , dated 02/21/2012 N 03-04-05 / 6-199 , dated 02/13/2012 N 03-04-06 / 6-34 , Federal Tax Service of Russia dated 09.13. 2012 N AS-4-3/ [email protected]), as well as regardless of the basis on which the termination of the employment contract occurs (Letters dated 08/13/2012 N 03-04-06 / 6-236, dated 06/28/2012 N 03-04-06 / 6-182, dated 04/11/2012 N 03-04-05/6-489, dated 04/10/2012 N 03-04-06/6-105, dated 04/02/2012 N 03-04-06/6-86). See also Letters of the Ministry of Finance of Russia No. 03-04-06/6-255 dated August 22, 2012, No. 03-04-06/1-239 dated August 13, 2012, No. 03-04-05/1-900 dated July 31, 2012 , dated 07/04/2012 N 03-04-06/1-198 , dated 06/29/2012 N 03-04-06/6-185 , dated 06/27/2012 N 03-04-06/6-181 , dated 06/06/2012 N 03-04-06 / 6-152, dated 05/18/2012 N 03-04-06 / 6-139.