Vacation pay in advance: how to keep it upon dismissal?

When do unearned vacation pay appear?

The following example will help you understand the mechanism by which unearned vacation pay appears.
Technical University graduate P. N. Ptichkin got a job at a helicopter plant on July 1, 2020, and in January 2021 he received the right to go on vacation (paragraph 2 of Article 122 of the Labor Code of the Russian Federation) and took advantage of this opportunity. The duration of his vacation was 28 calendar days (Article 115 of the Labor Code of the Russian Federation).

Find out more about the provision of leave and its duration from the article “Annual paid leave under the Labor Code (nuances).”

During his vacation, he received a more lucrative job offer and immediately after returning from vacation, he quit the plant.

Thus, by the time of his dismissal, P.N. Ptichkin had earned only half of his legal leave: 14 days (6 months × 28 days / 12 months), and used all 28 days. There were 14 vacation days unworked at the time of dismissal (28 – 14).

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

IMPORTANT! The right to vacation for the first working year arises after six months of work in the organization (Article 122 of the Labor Code of the Russian Federation). Subsequent vacations are issued according to the approved schedule.

What the lack of a vacation schedule in a company can lead to, see the material “Unified Form No. T-7 - Vacation Schedule” .

Providing the next vacation in advance by agreement with the employer

According to the rules regulated by the legislation of our country, the minimum working time that a citizen must work to obtain the right to take annual paid leave is 6 months.
Under some circumstances, by prior agreement with the manager, a citizen may go on vacation until the specified accumulated time is reached. Then he will be accrued vacation pay in full for 28 days, and part of it will be considered the employee’s debt.

If the citizen continues to work in the company, then there will be no problems with the issue of returning the described debt. However, if during the period of work required to repay this debt, a citizen wishes to quit, then the management has the right to withhold the balance of the debt from the final calculation.

"Vacation" rights and obligations

Upon termination of the employment relationship, the employer must perform many mandatory actions regulated by labor legislation. Among them is the obligation to give the employee everything he earned by the time of dismissal.

Vacation payments are one of the elements of the final settlement with a resigning employee. Their composition depends on how many vacation days have been accumulated and whether the employee has exercised his right to vacation in the current period (Article 127 of the Labor Code of the Russian Federation).

For information on the circumstances affecting the calculation of vacation days upon termination of an employment contract, see the material “How to calculate the number of vacation days upon dismissal?” .

In addition to this obligation, the employer has the right to withhold from the resigning employee’s income the amount of advance vacation pay (Article 137 of the Labor Code of the Russian Federation).

This right may not be exercised in all cases. If the dismissal of an employee occurs on the grounds listed in Art. 137 of the Labor Code of the Russian Federation, it will not be possible to withhold overpaid vacation pay from him. For example, such a prohibition on retention applies to the situation of dismissal due to staff reduction or closure of a company, as well as in other cases provided for by law.

Find out how the latest judicial practice on this issue is shaping up from the analytical collection from ConsultantPlus. Get trial access to the system and access the material for free.

In addition, the employer can deal with the employee’s debt in a different way. We'll talk about this in the next section.

Find out how to calculate the number of vacation days in 2021 from this publication.

We comply with deadlines for reimbursement (withholding overpayments)

After establishing the reasons for the overpayment, it is necessary to remember the terms during which the overpaid amounts can be withheld from the employee.
By virtue of the provisions of Art. 137 of the Labor Code of the Russian Federation, the employer has the right to decide to deduct from the employee’s salary no later than one month from the end of the period established for repayment of incorrectly calculated payments, and provided that the employee does not dispute the grounds and amount of the deduction. As noted in the appeal rulings of the Moscow City Court dated 02.28.2013 No. 11-3853/2013, the Sverdlovsk Regional Court dated 05.22.2014 No. 33-7209/2014, if at least one of these conditions is not met, that is, the employee challenges the withholding or has expired month period, the employer loses the right to withhold these amounts and it can only be exercised in court.

Is it possible to do without deductions?

You can avoid deductions by signing a debt forgiveness agreement. Forgiving an employee’s debt means not raising the issue of the existence of a debt and not demanding its repayment.

In everyday life, settling a debt between individuals through forgiveness does not entail any consequences for both parties to the transaction. In a situation where one of the parties is a legal entity, debt forgiveness entails additional paperwork and also requires adjustment of tax obligations.

At the beginning of the procedure for forgiveness of vacation debt, you will need to draw up a document that reflects the will of the parties to repay the debt. Such a document may be an agreement on debt forgiveness for vacation overpayment.

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

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

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

Read about the next steps of debt forgiveness for unearned vacation pay in the next section.

An example of reflecting deduction for “advance” leave

Vacation used in the year of dismissal

On April 10, 2015, an employee resigned from Promsnabkomplekt-SI LLC. At the time of his dismissal, he had used 14 days of unworked vacation. The employee's salary is set at 45,000 rubles.

The accrual for vacation in advance amounted to 21,000 rubles.

Postings for these operations:

Vacation used last year

The case where advance leave was used last year can be reflected as follows:

Tax nuances of vacation advance forgiveness

The debt forgiveness agreement signed by the parties automatically triggers the tax adjustments associated with this event.

For the employee, recalculation of tax obligations does not lead to material losses - the tax on his income in the form of a forgiven debt has already been withheld when he was paid vacation pay. Changing the status of the amount received from vacation pay to a bonus from the employer (debt forgiveness) does not have an impact on personal income tax obligations.

What to do with personal income tax if an employee voluntarily repays the debt on advance vacation pay, see the material “Personal income tax on unearned vacation pay is subject to return .

The employer's situation is different. In connection with the “act of goodwill” in relation to the employee, the income tax will have to be recalculated. In this case, it becomes necessary to exclude from expenses the amount of unearned vacation pay (clause 1 of Article 252, clause 49 of Article 270 of the Tax Code of the Russian Federation). Tax officials consider such expenses to be economically unjustified (letter from the Federal Tax Service for the city of Moscow dated June 30, 2008 No. 20-12/061148).

With regard to the amount of unearned vacation insurance premiums accrued, it should be noted that there are no grounds for their recalculation - they were accrued within the framework of the labor relationship. The legality of their inclusion in tax expenses is not disputed by officials of the Ministry of Finance (letter dated April 23, 2010 No. 03-03-05/85).

Income tax

Vacation pay is included in labor costs in the amount of accrued amounts (clause 7 of Article 255 of the Tax Code of the Russian Federation).
When recalculating vacation pay and deducting it from salary (or voluntary return), there is no need to make adjustments to the previously calculated tax base, since the accrual of vacation pay in the original amount was not erroneous. From the explanations of the Ministry of Finance it follows that when withholding unearned vacation pay, the corresponding amounts previously included in expenses should be taken into account as part of non-operating income by analogy with the return (restoration) of costs that were previously included in expenses (for example, restored reserves) (Article 250 Tax Code of the Russian Federation, Letter of the Ministry of Finance of the Russian Federation dated December 3, 2009 N 03-03-05/224). A similar opinion is presented in the Letter of the Federal Tax Service of the Russian Federation for Moscow dated January 11, 2007 N 21-08/ [email protected] The inclusion of withheld (returned) amounts in non-operating income is justified by the fact that such receipts are not related to the sale of goods (works, services) ) (and therefore do not relate to sales income under Article 249 of the Tax Code of the Russian Federation), while the list of non-operating income is open. In turn, there are no grounds for adjusting expenses in the form of previously paid vacation pay, since payments were made in accordance with the labor legislation of the Russian Federation.

The Federal Tax Service of Russia in Moscow explains the situation when the employer does not withhold the amount of advance vacation pay as follows: “the expenses of the employing organization incurred in connection with the dismissal of an employee who did not work the days of the granted vacation are not taken into account when forming taxable profit due to their non-compliance with the provisions Art. 252 of the Tax Code of the Russian Federation" (Letter dated June 30, 2008 N 20-12/061148). The Letter of the Federal Tax Service of Russia for Moscow dated April 17, 2006 N 21-07/ [email protected] clarifies that this is a situation where the employer had the opportunity to withhold the amount from the dismissed employee in accordance with the Labor Code of the Russian Federation, but did not do so.

Thus, according to the logic of the tax authorities, if the employer himself refuses to make deductions, the amount of vacation pay regarding unworked days cannot be included in expenses. However, it is not explained how to adjust the income tax base.

Considering that vacation pay was initially paid and included in expenses in the correct amount, there is no reason to make adjustments to the initial reporting.
In this regard, previously recognized expenses can be adjusted by increasing non-operating income in the current period by the amount that the employer refuses to withhold. At the same time, the organization has no reason to exclude from expenses insurance premiums accrued on vacation pay for unworked days not returned by the employee. After all, Article 270 of the Tax Code of the Russian Federation does not contain a prohibition on accounting for expenses of insurance premiums accrued for payments and remunerations that are not recognized as expenses for the purposes of Chapter. 25 of the Tax Code of the Russian Federation (Letters of the Ministry of Finance of Russia dated October 21, 2016 N 03-03-06/1/61454, dated June 9, 2014 N 03-03-06/1/27634, dated July 15, 2013 N 03-03-06/1/ 27562).

At the same time, there is an approach that the employer is not obliged to increase the tax base for income tax in the current period by the amount of unearned vacation pay, which he refused to withhold, since from the point of view of labor legislation the employee does not have any debt.

The employer only has the right (but not the obligation) to make a deduction.
Refusal of such deductions does not create a debt for the employee and can be an element of the organization’s personnel policy, focused on the interests of employees and raising the positive image of the company to attract and retain the best human resources. Moreover, due to the principle of freedom of economic activity, the taxpayer carries out it independently at his own risk and has the right to independently and individually assess its effectiveness and expediency. The validity of expenses taken into account when calculating the tax base must be assessed taking into account the circumstances indicating the taxpayer’s intentions to obtain an economic effect as a result of real business or other economic activity (Definitions of the Constitutional Court of the Russian Federation dated December 16, 2008 N 1072-О-О, dated June 4, 2007 N 366-O-P, dated 06/04/2007 N 320-O-P, Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 10/12/2006 N 53). If the employer was unable to withhold the amount of advance vacation pay due to the above restrictions on withholding (established by labor legislation), nothing needs to be adjusted, since the employer does not have the right to collect this amount. In this case, in our opinion, there should be no risks in terms of income tax.

Methodology for calculating advance vacation pay

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

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

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

KDno = KDio – [KD o / 12 months. × KM],

Where:

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

KD o - duration of the next vacation;

KM - the number of months of work at this enterprise.

For example, during his work, an employee of the company did not use part of his vacations in full, but in the working year before his dismissal, his vacation was in full accordance with the vacation schedule. As a result, at the time of his dismissal, he had “two-way” vacation pay: not paid off for the previous period (15 days) and advance pay for the unfinished current year (10 days). In this situation, the employer, instead of deducting for unworked vacation days, is obliged to give the employee compensation for unused days.

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

We clarify information about earnings and calculate unearned vacation pay.

This stage is associated not only with calculations, but also with clarifying the available information. The accountant will have to provide information about the average daily earnings, based on which the employee was paid for vacation days. This indicator has already been calculated earlier (before the employee went on vacation).

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

∑Ond = KDno× SZ.

Additional adjustments will be needed if, during the employee’s rest period, all employees of the company received a salary increase. The date of this event is of particular importance - the vacation period is calculated from it, the payment for which will have to be adjusted by an increasing factor.

The sequence of actions in this situation is as follows: unworked days are counted from the end date of the vacation, and it is determined how many days fall in the time period after the salary increase (and how many before this event). The average daily earnings for these periods will be different due to the application of the adjustment factor.

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

∑Ond = KD0× SZ0 + KD1× SZ1,

Where:

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

SZ0 and SZ1 are the average daily earnings, calculated for vacation pay and increased by a factor, respectively.

What to do if an employee decides to resign of his own free will during his next vacation? How to make a payment upon dismissal? Is it possible to withhold paid vacation pay? The answers to these and other questions are considered in detail by ConsultantPlus experts. Get trial access to the system and study the ready-made solution for free.

Personal income tax

The amounts of paid vacation pay are employee income subject to personal income tax (clause 6, clause 1, article 208, clause 1, article 210 of the Tax Code of the Russian Federation). Personal income tax is calculated on the date of actual receipt of income, determined in accordance with Art. 223 of the Tax Code of the Russian Federation (clause 3 of Article 226 of the Tax Code of the Russian Federation). In relation to vacation pay, such a date is the day of payment of income (transfer to the employee’s card or issuance in cash through the cash register) (clause 1, clause 1, article 223 of the Tax Code of the Russian Federation, Letter of the Ministry of Finance of Russia dated March 28, 2018 N 03-04-06/19804, Letter Federal Tax Service of Russia dated 06/13/2012 N ED-4-3/ [email protected] together with Letter of the Ministry of Finance of Russia dated 06/06/2012 N 03-04-08/8-139).
Personal income tax is withheld directly from the taxpayer’s income when it is actually paid to the employee (clause 4 of article 226 of the Tax Code of the Russian Federation). Personal income tax on vacation pay is transferred no later than the last day of the month in which such payments were made (clause 6 of Article 226 of the Tax Code of the Russian Federation). If any deductions are made from the taxpayer’s income by order, by decision of a court or other authorities, such deductions do not reduce the tax base (paragraph 2, clause 1, article 210 of the Tax Code of the Russian Federation).

According to the explanations of the Ministry of Finance, if an employee returns to the employer the amounts of vacation pay actually paid to him earlier, such amounts will not be recognized as his income.

Personal income tax amounts withheld and transferred to the budget from the specified vacation leave are overpaid by the tax agent. Accordingly, the amount of the employee’s personal income tax obligations for the tax period must be adjusted. At the same time, the tax agent - employer has an overpayment of personal income tax, which can be returned to him within the framework of Article 78 of the Tax Code of the Russian Federation (Letter dated October 30, 2015 N 03-04-07/62635 (sent by Letter of the Federal Tax Service of Russia dated November 11, 2015 N BS- 4-11/ [email protected] )).
The Federal Tax Service, in turn, explains that in the case when an organization (tax agent) recalculates the amount of vacation pay and, accordingly, the amount of personal income tax, then in section 1 of the calculation in Form 6-NDFL the total amounts are reflected taking into account the recalculation made (Letter of the Federal Tax Service of Russia dated 05/24/2016 N BS-4-11/9248). The Letter of the Federal Tax Service of Russia for Moscow dated March 12, 2018 N 20-15/049940 clarifies that the total amounts, taking into account the recalculation made, are reflected in Section 1 of the updated calculation in Form 6-NDFL for the period in which vacation pay was accrued. Thus, if by the time of recalculation of vacation pay you have already submitted Form 6-NDFL, it must be adjusted by entering the amount of vacation pay, taking into account the withholding (refund) of tax.

Certificates in form 2-NDFL also need to be adjusted if you have already submitted them by the time of recalculation. If not, the final data must be generated taking into account recalculation.

The specified approach is presented in paragraph 1 of the Letter of the Federal Tax Service of Russia dated October 11, 2017 N GD-4-11/20479.
If the employer does not withhold vacation pay for unworked days (of his own free will or due to legal restrictions), no adjustments need to be made to personal income tax reporting. After all, personal income tax has already been withheld from the employee’s income, while vacation pay remains vacation pay (payments are not reclassified). The employee does not receive additional income. On this issue, see Letters of the Ministry of Finance of Russia dated December 26, 2017 N 03-04-06/86736 and the Federal Tax Service of Russia for Moscow dated June 28, 2018 N 20-15/138129.

Example of calculating advance holiday pay

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

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

Additional terms:

• while the employee was on vacation, the company increased salaries - the increase occurred on May 20 and affected the entire work team;
• R.N. Gavrilov’s vacation ended on May 30;
• the employee’s salary before and after the increase was 25,000 and 28,000 rubles. respectively.

The accounting specialist began the calculation by determining the unworked vacation days falling during the period after the salary increase. Of the 12 advanced vacation days, the period after the increase accounted for 11 days (from May 20 to 30); unworked rest days, paid without taking into account the increasing factor, accounted for 1 day (12 - 11).

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

∑Ond = 1 day × 1,120 rub. + 11 days × [RUB 1,120 × (28,000 rub. / 25,000 rub.)] = 14,918.40 rub.

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

We will tell you in the next section how much of this debt will be returned to the employer.

For information about how leave policies may change, see here.

How to calculate the amount of overpaid vacation pay upon dismissal

Calculation of withholding for leave upon dismissal is made using the following formula:

UDNO = (FEFD − DOS) × WHSD,

Where:

UDNO - deduction for days of unused vacation;

DFO - the number of vacation days actually taken;

DOS - the number of vacation days allotted in accordance with the vacation record;

ZSD - average daily earnings calculated at the time of payment of vacation pay.

Stages of calculating intermediate indicators:

1. To calculate the DOS indicator, you must divide by 12 the number of vacation days stipulated by law or employment contract for the working year (minimum 28 days). Then the resulting value should be multiplied by the number of months actually worked. If the resulting number of days turns out to be a fractional number, then it is rounded in favor of the employee (letter of the Ministry of Health and Social Development “On the procedure for determining the number of vacation days...” dated December 7, 2005 No. 4334-17).
2. WHSD is calculated in the manner specified in Part 4 of Art. 139 of the code, taking into account the adjustment for the time actually worked, if it does not reach 12 months (clause 6 of the regulation, approved by the government decree “On the specifics of the procedure for calculating average wages” dated December 24, 2007 No. 922).

So, deduction for vacation used in advance but not worked is made in the amount of no more than 20% of the earnings paid upon dismissal. The amount of debt that exceeds the amount of actual withholding is repaid by the dismissed individual or collected by the employer through the court. It is important to remember that in some cases there is a ban on making deductions upon dismissal (for example, due to the liquidation of the employer).

How to determine average daily earnings

To calculate the vacation debt, the accountant must determine the average daily earnings (Article 139 of the Labor Code of the Russian Federation). But there is no need to separately calculate this indicator as of the date of dismissal. Use in the calculation the amount that was on the start date of the employee’s vacation. This procedure is due to the fact that the company retains the money that the employee received previously.

How to calculate the number of unworked months

In addition to average earnings, the accountant determines how many months the employee did not work in a year, during which he already had time to take vacation. When calculating, use two rules.

This is also important to know:
How to fill out a work book correctly and without errors

The first rule is that the accounting year is not equal to the calendar year, that is, it does not have to start on January 1 and end on December 31.

An employee has the right to annual paid leave every year (Article 122 of the Labor Code of the Russian Federation). It is equal to 12 months and starts from the date of hiring (letter of Rostrud dated June 14, 2012 No. 853-6-1). Moreover, the length of service for calculating vacation includes (Article 121 of the Labor Code of the Russian Federation):

1. days the employee worked;
2. annual leave, days of incapacity, holidays and weekends;
3. days that the employee took at his own expense. But no more than 14 calendar days per year are taken into account.

The second rule is that if an employee, in addition to whole months, also has unworked days, then they are rounded up to full months. The main thing to remember here is that a balance of 14 days or less is not taken into account. And days starting from 15 are rounded up to a full month.

For example, an employee has 4 months and 17 days left unworked. Then the accountant will take into account the deduction of 5 months.

How to find out how many vacation days an employee is entitled to per year

Typically, vacation is 28 calendar days (Part 1, Article 115 of the Labor Code of the Russian Federation). For most employees, this is the value that the accountant will take to calculate compensation and deductions for unused vacation upon dismissal. However, there are exceptions.

For example, if your employee is under 18 years old, then he should have 31 calendar days of vacation (Article 267 of the Labor Code of the Russian Federation). For teachers, the formula uses 42 or 56 days (Article 334 of the Labor Code of the Russian Federation). The specific value depends on the position of the teacher (Resolution of the Government of the Russian Federation of May 14, 2015 No. 466). Disabled people have the right to 30 days (Article 23 of the Federal Law of November 24, 1995 No. 181-FZ).

How much can be withheld from an employee for vacation used in advance upon dismissal?

Of the payments due to an employee upon dismissal, the accountant has the right to withhold no more than 20 percent of the amount that remains after deducting personal income tax (Article 138 of the Labor Code of the Russian Federation). Anything above that, the employee has the right to pay off voluntarily.

Example

The manager started working on August 22, 2021. He retires on June 19, 2021. In December 2021, the manager took 28 calendar days off. The average daily earnings was 501 rubles.

The manager's working year begins on August 22, 2021 and ends on August 21, 2021. The unworked period is two months and two days. According to the rules, we round this value to two full months.

For June 2021, the manager was credited 25,000 rubles. He has no deductions for personal income tax, so the tax is 3,250 rubles. (RUB 25,000 x 13%). Amount to be issued – 21,750 rubles. (25,000 rub. - 3,250 rub.)

You can withhold no more than 4,350 rubles. (RUB 21,750 × 20%).

The debt for vacation provided in advance is 2,338 rubles. (501 rubles × 2 months × 28 days: 12 months). The accountant can withhold the entire amount of the debt from the salary.

Example 1. Calculation of the withheld amount of excess payment for vacation pay upon dismissal

A.V. Ostrov worked at Vasilek LLC from December 1, 2015. His working year was supposed to last until November 20, 2021. During this period, he was granted leave of 28 days. The average employee's earnings were 230 rubles. But A.V. Ostrov resigned on June 30, 2016. The amount to be withheld is calculated.

It turns out that the fired person did not work for 5 months. This means that he was paid an extra amount of vacation pay, which should be returned to the cash desk of Vasilek LLC. So, Vasilek LLC withheld 2,530 rubles. from the amount of salary paid to the dismissed A.V. Ostrov when calculated on the last day of work.

Example 2. Withholding of excess vacation pay upon dismissal of an employee, standard account assignments

P. V. Smirnov worked at Zorka LLC from January 15, 2016. He was granted leave from July 15, 2016 for a period of 12 days. After his vacation, P.V. Smirnov worked until August and resigned by agreement of the parties on August 15, 2016. Thus, he did not work until the end of the working year for 5 months.

Since the dismissed person took 12 days of vacation for a full working year, and did not work for 5 months, the employer has the right to return the excess payment of money for 5 days (12 / 12 = 1 day; 1 * 5 = 5 days). On the last day of work, P.V. Smirnov was given the payments due, from which the amount for the 5 unworked days of vacation pay was withheld. The accounting department used the following basic account assignments:

• DT 20 (26, 44, etc.), CT 70 - crediting salary upon dismissal;
• DT 20 (26, 44, etc.), CT 69 - contributions to the Pension Fund;
• DT 70, CT 68 - personal income tax calculation;
• DT 20 (26, 44, etc.), CT 70 - reduction of expenses by the amount of excess vacation pay payments;
• DT 20 (26, 44, etc.), CT 69 - correction of PFR;
• DT 70, CT 68 - personal income tax correction;
• DT 70, CT 50 - salary issued.

Deduction for used vacation upon dismissal

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

IMPORTANT! The amount of deductions is limited by law (Article 138 of the Labor Code of the Russian Federation) and amounts to 20% of the income received by the employee. In some cases, it is allowed to exceed the established limit to an amount not exceeding half of the income received.

It should be taken into account that in addition to advance vacation pay, the employee may have other obligations (under writs of execution, in connection with compensation for damage, etc.). Then they, together with advance vacation pay, should not exceed the specified limit on the amount of deduction.

The accountant needs to find out what part of the calculated amount of unearned vacation pay can be deducted from the employee’s income. If he has no other deductions, and the amount of vacation pay received in advance is less than 1/5 of the amount received upon dismissal, no problems arise - the advanced vacation pay can be withheld in full.

If established by Art. 138 of the Labor Code of the Russian Federation, the restriction does not allow the employer to reimburse the full specified amount, you can try to do the following:

• ask the employee to voluntarily repay the remaining balance of the debt;
• apply to the judicial authorities to resolve the issue of collection (Articles 382-383 of the Labor Code of the Russian Federation);
• forgive the balance of the debt.

Each of these methods has its own nuances. For example, voluntary repayment of debt entails recalculation of personal income tax, and forgiveness of debt leads to adjustment of income tax obligations.

The judicial way of resolving the issue, as practice shows, is not always in favor of the employer. For example, in the appeal ruling of the Supreme Court of the Republic of Karelia dated January 11, 2013 No. 33-111/2013, the court defended the interests of the employer, and in the ruling of the Presidium of the Rostov Regional Court dated September 15, 2011 No. 44g-109 on a similar issue, the opposite point of view was expressed.

Find out what the Labor Code of the Russian Federation establishes regarding deductions from wages from this article.

About leave and deductions

According to the rules of the Labor Code of the Russian Federation, the right to leave for the first year of work arises for an employee after 6 months of continuous work.
By agreement of the parties, the employee may be granted paid leave before the expiration of this period. The employer is obliged to provide certain categories of employees with leave upon application before the expiration of the specified period. For example, for women before or immediately after maternity leave. 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 working year is 12 months and, unlike the calendar year, is calculated not from January 1, but from the day the employee starts working for a specific employer (Letters of the Ministry of Labor of Russia dated October 25, 2018 N 14-2 / ​​OOG-8519, Rostrud dated June 14, 2012 N 853-6-1). For example, if an employee joined you on December 15, 2019, the working year will be from December 15, 2019 to December 14, 2020.

By the way, the Ministry of Labor gave clarifications that vacation should not begin earlier than the working year for which it is granted. In this case, the end of the vacation may occur in the next working year (Letter of the Ministry of Labor of Russia dated October 25, 2018 N 14-2 / ​​OOG-8519).

The same approach is supported in judicial practice (Definitions of the Nizhny Novgorod Regional Court dated August 17, 2010 in case No. 33-7171, St. Petersburg City Court No. 33-16777/2012, Appeal determination of the St. Petersburg City Court dated May 25, 2017 No. 33-10206 /2017 in case No. 2-17215/2016).
This means that if an employee got a job with you on 12/01/2018 and as of 11/30/2019 (working year from 12/01/2018 to 11/30/2019) took all 28 calendar days off (as a general rule), the next vacation can be granted to him no earlier than December 1, 2021. The order of granting vacations is planned annually by the employer. No later than 2 weeks before the start of the calendar year, the vacation schedule is approved. At the same time, certain categories of employees have the right to go on vacation upon application, without taking into account the schedule. For example, such leave is provided to employees who have three or more children under the age of 12 (Article 262.2 of the Labor Code of the Russian Federation).

When planning vacations, you must keep in mind that it can be divided into parts, but at least one part must be at least 14 calendar days (Article 125 of the Labor Code of the Russian Federation). Moreover, 14 calendar days are provided specifically for the working year, and not the calendar year (Letter of the Ministry of Labor of Russia dated September 24, 2019 N 14-2 / ​​OOG-6958). This means that if an employee has vacations that have not been taken off, 14 days for the current working year must be counted without taking into account these vacations. Vacations not taken can be added to this vacation or provided at another time. By the way, Rostrud discourages excessively splitting vacations, otherwise the employee will not be able to take advantage of the vacation to restore his ability to work.

So, vacation cannot be granted before the beginning of the working year, but can be used before its end. Moreover, the law does not establish norms allowing the employer to provide vacation in the working year, taking into account the days worked. Accordingly, unworked days may arise if the employee quits before the end of the working year for which the leave was granted.

Deductions from an employee’s salary are made only in cases provided for by the Labor Code of the Russian Federation and other federal laws.
In accordance with paragraph 5, part 2, article 137 of the Labor Code of the Russian Federation, if an employee is dismissed before the end of the working year for which he has already received annual paid leave, deductions can be made from his salary for unworked vacation days.

But there are a number of restrictions.

Firstly , there are restrictions on individual grounds for dismissal . For example, deduction cannot be made if an employee leaves due to the liquidation of an organization or a reduction in the number or staff of employees.

Secondly , the amount of all deductions made by decision of the employer cannot exceed 20% of the payment remaining after deduction of personal income tax (Part 1 of Article 138 of the Labor Code of the Russian Federation, Letter of the Ministry of Labor of Russia dated October 22, 2018 N 14-1 / OOG-8142, Ministry of Health and Social Development of Russia dated November 16, 2011 N 22-2-4852). If the amounts paid are not enough for deductions, it is impossible to recover from the employee the amount of unearned vacation pay (part 4 of article 137 of the Labor Code of the Russian Federation, paragraph 3 of article 1109 of the Civil Code of the Russian Federation, paragraph 5 of the Review of judicial practice of the Supreme Court of the Russian Federation for the third quarter of 2013, Determination of the Supreme Court of the Russian Federation dated September 12, 2014 N 74-KG14-3, Letter of the Ministry of Labor of Russia dated October 23, 2018 N 14-1/OOG-8448). So it is useless to go to court for recovery (Decision of the Supreme Court of the Russian Federation dated October 25, 2013 N 69-KG13-6, Determination of the Moscow City Court dated 08/08/2011 in case No. 33-23166).

In addition, if the employee has a writ of execution, deductions for unearned vacation can be made only after deductions for all writs of execution, since writs of execution have priority over deductions by the decision of the employer (Part 2 of Article 99 of Federal Law of October 2, 2007 N 229 -FZ “On Enforcement Proceedings”). Moreover, the increased limits (50% and 70%) apply only to deductions under executive documents (parts 2, 3 of Article 138 of the Labor Code of the Russian Federation, parts 2, 3 of Article 99 of the Federal Law of October 2, 2007 N 229-FZ ). It is impossible to sum up the established limits (Letter of Rostrud dated May 30, 2012 N PG/3890-6-1).

Thirdly , it should be remembered that deductions can not be made from all amounts, but only from payments due to the employee upon dismissal (Letter of the Ministry of Labor of Russia dated October 22, 2018 N 14-1/OOG-8142, Ruling of the Supreme Court of the Russian Federation dated 05.02 .2018 N 59-KG17-19). This means that if an employee, for example, was ill before dismissal, it is impossible to withhold overpaid vacation pay from temporary disability benefits (see, for example, the Appeal Determination of the Samara Regional Court dated June 4, 2012 N 33-5116/2012). In addition, it is impossible to make deductions from payments that are not subject to foreclosure in accordance with federal law (Part 4 of Article 138 of the Labor Code of the Russian Federation). This is, for example, reimbursement of travel expenses according to the advance report, compensation for the use of the employee’s personal property (clauses “a”, “b”, paragraph 8, part 1, article 101 of the Federal Law of October 2, 2007 N 229-FZ “On Enforcement Proceedings” ").

In all cases when you are subject to a deduction limitation, you can agree with the employee on a voluntary return of the amount.

For example, he can write an application for deduction from salary (or other payments).
Then we will not be talking about retention in the sense of Art. 137 and 138 of the Labor Code of the Russian Federation, but about the employee’s will to dispose of his wages, as indicated by Rostrud, for example, in Letter dated 10/07/2019 N PG/25778-6-1 (for the meaning, see also Letters of Rostrud dated 09/26/2012 N PG /7156-6-1, dated September 16, 2012 N PR/7156-6-1). In addition, the employee can repay the debt in cash to the organization's cash desk. By the way, according to the meaning of the explanations presented in the Letter of the Federal Social Insurance Fund of the Russian Federation dated August 20, 2007 N 02-13/07-7922, deductions at the will of the employee can also be made from temporary disability benefits (the letter discussed overpaid benefits). Withholding for unworked vacation days is a right, not an obligation, of the employer and is at his discretion (Letter of the Ministry of Labor of Russia dated October 22, 2018 N 14-1/OOG-8142). So the employer can refuse deductions.

If, taking into account all the rules and restrictions, the organization has enough payments to deduct for unworked vacation days, such deduction should be issued by order of the manager (since the deduction is made by decision of the employer). Considering that there is no established form for such an order, it is drawn up in any form.

Results

Deduction for unworked vacation upon dismissal is made from the final payment amounts received by the employee. In certain legally established cases, such deductions are not permitted or limited.

Sources:

• Tax Code of the Russian Federation
• Labor Code of the Russian Federation

You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.

In what cases is no deduction made for leave granted in advance?

Withholding for vacation used in advance upon dismissal can be carried out by the employee’s manager without receiving any confirmation or consent from him to carry out the procedure. This cannot always be done. The provisions of Article No. 137 of the Labor Code of the Russian Federation define situations when it is not possible to retain the debt for vacation used in advance. These include situations where the reason for termination of the employment agreement is:

• refusal to change positions on the basis of a transfer (between organizations or within the same company) on the basis of medical contraindications - this fact must be confirmed by the corresponding conclusion of the attending physician;
• liquidation or reorganization of the company;
• termination of the performance of labor duties by the head of the enterprise;
• staff reduction;
• the need to send an employee to undergo compulsory military service;
• reinstatement of a former employee (for example, an employee returning from maternity leave, a citizen returning after a long sick leave, etc.);
• recognition of the resigning employee as incapacitated or incompetent;
• any unforeseen emergency circumstance that does not allow the enterprise to continue to operate (military actions, natural disasters, man-made accidents and disasters, etc.).

If the procedure for terminating a working relationship is carried out on a basis that is not in the above list, and the citizen himself does not agree with the need for retention, the manager can contact the judicial authorities or the labor inspectorate to resolve the issue.