The employer withheld personal income tax, but did not transfer it to the budget

What is the problem

Employers act as tax agents for personal income tax for employees and pay this tax for them. They deduct personal income tax from the salary amount and send the payment to the tax office. According to the rules, this must be done no later than the next working day after payday.

Sometimes salaries are paid, but personal income tax is forgotten, the tax is calculated incorrectly, or the tax is paid using incorrect details. Then the tax office sends a fine or blocks the account.

An entrepreneur from Tula paid personal income tax on each salary of his employees. But the payment details changed, but he didn’t know and paid according to the old ones. A year later, the tax authorities blocked his account and demanded that he pay 200,000 rubles in personal income tax. Everything ended well. The personal income tax was found, the account was unblocked, but the entrepreneur spent three days to resolve all this.

The good news is that if you find the error yourself and report it to the tax office, you won’t have to pay a fine. How to proceed depends on the situation:

• the company found an error regarding personal income tax in the same tax period, and the employee continues to work for the company;
• the error was found after the tax period, but the employee is still working;
• the employee quit.

It's easier with an example.

Anatoly Kalabushev is a manager at Tula Zhamki LLC. In July, some accountants were on vacation, others went out for training several times. Therefore, they paid him his salary, but forgot to withhold personal income tax.

• The first situation: in September the accounting department notices an error, and Anatoly works for the company.
• Second: the error pops up in July next year, but Anatoly is still working at Zhamki.
• Third: the company found an underpayment of personal income tax, but Anatoly quit.

We have made a plan for every eventuality.

The employee continues to work

The salary was paid, but personal income tax was forgotten. But the employee continues to work on staff. In this case, you will have to recalculate personal income tax and deduct it from the employee’s future income: wages, sick leave, vacation pay. That is, he will receive less money than he expected.

By law, personal income tax can only be withheld in the current tax period. For example, for 2021 - until April 1, 2021. After this date you will have to pay a fine.

Here is the procedure step by step:

1. Recalculate the personal income tax for the employee for the quarter and understand how much you need to pay extra.
2. Warn the employee that he will receive less money because he received more by mistake last time.
3. Transfer the missing tax amount by the end of the quarter.
4. Correct form 6-NDFL for the quarter in which there was an error.
5. Correct the 2-NDFL certificate for the employee by the end of the year.

In the corrective report on Form 6-NDFL, you must indicate the adjustment number and the correct amounts:

• if you are correcting a mistake for the first time, it will be about;
• the second is “002” and so on.

Write like this if you notice a mistake for the first time:

You can report on Form 6-NDFL in different ways: for a quarter, six months, nine months or a year. If a company submits Form 6-NDFL quarterly and discovers an error for the first quarter at the end of the year, all forms will have to be corrected.

Certificate 2-NDFL - certificate of income of individuals. In case of an error, you will also have to correct it and draw up a corrective certificate:

certificate number (field “N___”) - certificate number with an error;

certificate date (field “from __.__.____”) - date of the corrective certificate. This is the date when you draw up a new certificate;

correction number—correction number. If you are correcting for the first time, write 01.

If personal income tax was calculated incorrectly or was not paid for several months, it will not be possible to correct the error in one go. By law, you cannot take more than half of an employee’s salary or vacation pay for taxes. Therefore, you will have to draw up several corrective certificates 2-NDFL and 6-NDFL.

If the underpayment is found next year

The company would be out of luck if it noticed an underpayment the following year. For example, the error was in 2021, but it was found after April 1, 2018. In this case, the company will have to pay a fine - 20% of the amount of the underpayment - and the employee himself will pay the tax.

In June 2021, the accountant quit, and the owner of the company paid the salary himself. He forgot to withhold personal income tax from Anatoly’s salary.

The salary is 50,000 rubles, which means that 6,500 were not paid into the budget. This is 13% of fifty thousand rubles.

After April 1, 2021, the tax office sent a fine of 1,300 rubles. But Anatoly himself will pay the tax for himself.

The procedure is as follows:

• make sure the fine is correct;
• pay fines and penalties;
• submit certificate 2-NDFL.

Make sure the penalty is correct. Sometimes a company pays personal income tax on time and in full, but still receives a fine. To prevent this from happening, you need to order a reconciliation report or statement of settlements with the budget. It can be done:

• at the tax office at the place of business registration;
• through your personal account on the tax website. There you need to find the section “Reconciliations with the budget” → “Submit an application to initiate the procedure...”.

Pay fines and penalties. If you really haven’t paid your personal income tax and you receive a fine, you need to pay it.

The tax office may ask you to pay not only a fine, but also penalties. But here everything is ambiguous. According to the letter, a tax penalty for personal income tax is charged if the company withheld but did not remit the tax. That is, she deducted tax from her salary, but did not send it to the tax office, but kept it for herself. The arbitration court believes that penalties should be accrued in any case.

If the tax office charges penalties, but the company does not want to pay them, you will have to go to court and prove the case there. But it is difficult to predict the exact outcome of the case.

Submit tax certificate 2-NDFL. The certificate must indicate sign “2” for employees who had a tax error.

Actions of an employee in the event of violations of the employer’s obligations

If an employee discovers that an enterprise withholds personal income tax from his wages, but does not transfer the tax to the appropriate budget, he has the right to submit a written appeal to the Labor Inspectorate, the prosecutor's office or the tax authority to which the employer is attached.

When submitting an application, the employee must attach documents confirming the deduction of personal income tax. The evidence is an employment agreement indicating the employee’s salary (without deduction of tax), pay slips and sheets, statements from the employee’s personal account about the receipt of money on the salary card.

As evidence confirming the employer’s failure to fulfill the obligation to transfer tax to the budget, certificates of form 2-NDFL and information taken from the personal account on the Federal Tax Service website are used.

If an employee quits

It happens that a company finds an error in personal income tax when an employee quits. In this case, it will not be possible to deduct tax from the employee’s salary, and the tax office must be notified about this before March 1 of the next year.

In 2021, the company incorrectly paid personal income tax to Anatoly. But the mistake was discovered when Anatoly left to work elsewhere. This means that you must notify the tax authorities about the error before March 1, 2019.

• Inform the tax office in writing that it will not be possible to withhold tax from your salary. To do this, you need to fill out a 2-NDFL certificate with the sign “2” and send it to the tax office.

Provisions by law

Personal income tax must be paid within the time limits specified in Article 226 of the Tax Code of the Russian Federation. If the date is missed, the Federal Tax Service has the right to fine the violator. The amount of sanctions will be 20% of the payment amount. This rule applies to all taxpayers.

More severe penalties apply to tax agents. They can be legally held accountable even under criminal law.

The deadlines for payment for employers are prescribed in Article 226 of the Tax Code of the Russian Federation. At the same time, they do not need to rely on the norms of Articles 227 and 228.

The collection of a fine can be carried out by the inspectorate in two cases. In the first, a fine is applied if there is no tax withholding from the funds transferred to the employee. Sanctions are also applied to organizations that do not transfer fees to the state budget in a timely manner.

Such norms are reflected in Article 123 of the Tax Code of the Russian Federation. In addition, the payment rules are prescribed in Letter of the Ministry of Finance of the Russian Federation No. 03-02-07/1/8500, which was issued on March 19, 2013.

Despite the accrued fine, the tax agent must still deduct personal income tax. Based on paragraph 1 of Article 46 and paragraph 1 of Article 47 of the Tax Code of the Russian Federation, collection can be carried out by tax authorities forcibly. If payment deadlines are violated, the organization will be required to pay a penalty. The amount is determined in accordance with the duration of the delay.

Central questions

Fines for non-payment of personal income tax in 2021 are provided for many categories of taxpayers. It is important to know how much the violator of the law will have to pay and what changes have been introduced to the legislation since the beginning of the year.

Who should pay

Personal income tax is withheld from each employee by the employer. It is 13%, which is set at the state level.

If a citizen is a resident of the country, then when calculating it is important to know the full amount of income within the state and beyond. For non-residents, the tax base is determined only on the basis of Russian income.

Taxes for the labor activity of employees are paid by employers. The status of the institution and its organizational form are not taken into account. Foreign citizens pay patent tax in advance in the established amount.

If specialists carry out private practice, their income is obtained through independent labor activity. The procedure for withholding tax is prescribed in Articles 226 and 227 of the Tax Code of the Russian Federation.

When the tax period ends, organizations must send 2-NDFL for each employee to the tax office. The document reflects the amount of total income and withheld tax. Submission of reports is scheduled for April 1 of the following reporting year.

Onset of liability

Sometimes employers do not pay taxes, but the inspection does not detect violations. It is important to know how long you can hold him accountable.

The period may vary depending on the method of receiving income:

• cash;
• natural goods;
• in the form of material benefit;
• non-cash way.

Some employers use an envelope system for paying salaries to avoid paying taxes. In this case, the amount of taxes and insurance contributions is reduced.

If tax inspectors reveal violations, the employer will have to pay 40% of the debt. But violators are often not afraid of this. Therefore, the issue of not only increasing penalties, but also other countermeasures is being resolved by law.

After committing an offense, the employer will need to pay a fine. It is calculated depending on certain circumstances. It is important to know the situations when additional funds cannot be withheld, as well as the powers of tax authorities in calculating such payments.

When paying a fine, it is important to fill in the details correctly. A special BCC is provided for each taxpayer.

Last changes

Personal income tax for individual entrepreneurs on the simplified tax system is provided for hired employees, from whose earnings he is obliged to calculate and pay it.

How to calculate income tax in Excel - read.

Fines in 2021 remained unchanged, but adjustments were made to the procedure for withholding personal income tax:

• Tax on vacation payments is calculated together with the direct calculation of benefits.
• A certificate in form 2-NDFL is submitted if the tax is fully withheld until April 3, 2021, and if the tax is incomplete, until March.
• Previously, the transfer of personal income tax had to be carried out on the day of payment of wages. Now the employer is allowed to do this the next day.
• Social benefits can be transferred at the place of work. Previously, taxpayers had to visit the territorial office of the Federal Tax Service directly.

How to find out whether the tax was transferred to the budget

In order to find out how much tax was withheld and transferred it to the budget, there are several ways:

• Request a certificate from the employer in Form 2-NDFL, which contains all the required information. But if the employer maliciously does not transfer money to the budget, he can falsify this certificate.
• Register in your personal account on the official tax portal; it also contains all the necessary data.

You can also find out about this after filing a declaration in Form 3-NDFL in order to receive a deduction.

What is the amount of the fine for non-payment of personal income tax in 2021?

Failure to pay personal income tax will result in severe penalties.

It may occur in accordance with Article 123 of the Tax Code of the Russian Federation when:

• lack of transfer of funds to the budget;
• partial payment;
• violation of tax payment deadlines.

Article 123. Sequence of granting annual paid leave

The fine will be 20 percent of the total amount of the debt.

There are cases in which the employer may not be held accountable. They are reflected in Article 109 of the Tax Code of the Russian Federation.

• lack of corpus delicti;
• availability of evidence that the tax agent or payer is not guilty;
• the offender is under 16 years of age;
• the statute of limitations has expired.

Penalty may be applied within three years from the date of violation. This norm is prescribed in Article 113 of the Tax Code of the Russian Federation.

Article 109. Special breaks for heating and rest

Article 113. Prohibition of work on weekends and non-working holidays

If the employer has not submitted reports or has not paid tax, the Federal Tax Service may initiate an on-site inspection.

Once violations are identified, the following may occur:

• a penalty has been charged;
• a fine is provided;
• The case was referred to the prosecutor's office for consideration.

In the latter case, there is a high probability of bringing the employer to criminal liability. Then the fine will increase to 500 thousand rubles. If the act is particularly serious, imprisonment for a term of up to six years is provided.

Responsibilities of tax agents

According to the Tax Code of the Russian Federation, all employers will be tax agents for employees with whom they have signed an employment contract. An exception is the situation when an individual acts as an employer, without registration as an individual entrepreneur.

The tax agent is obliged:

• Calculate the amount of income tax on employee wages.
• Withhold it, that is, pay the salary minus the previously calculated tax amount.
• Transfer the withheld tax amount to the budget.

According to the law, a person who has a tax agent (that is, an employee whose employer is this agent) is considered to have fulfilled his obligation under tax law after the tax is withheld from him, that is, if the employer does not transfer the withheld amounts to the budget, the employee has already will not be held responsible.

Practical advice

In some cases, employers want to reduce the tax amount or avoid penalties. To do this, they need to learn practical tips. It is also important to find out in advance the terms during which the debt is repaid.

How to avoid or reduce

In some situations, even when an illegal act is committed, there is no liability.

This is possible with:

• paying personal income tax in advance, before receiving income;
• transfer of tax to the budget before payment of wages to employees;
• transfer of funds to the NFS of the head office instead of the inspectorate supervising the branch;
• non-payment of tax, since the acquisition was made from extra-budgetary funds.

In such situations, the employer can defend its rights and avoid administrative liability.

There are situations when it is possible to legally reduce the amount of penalties.

When determining a fine, it is important to take into account mitigating circumstances:

• technical program errors;
• change of leadership of the organization;
• admission of guilt by the employer;
• no debt on other fees;
• social sphere of the institution's activities.

If at least one of the signs is present, the fine can be halved. If this point is ignored by the tax authorities, the tax agent may appeal to the judicial authorities.

Getting the date right

To avoid a fine, you need to know the date when taxes must be transferred to the budget.

For each type of income, special deadlines are provided:

In the absence of personal income tax withholding, a fine is assessed, and the arrears cannot be recovered.

Tax obligations of employers

According to the Tax Code, employers are tax agents for their officially employed employees. The only exceptions are situations when an individual is considered an employer without registering as an individual entrepreneur.

The employer's responsibilities include:

1. Calculation of the amount of income tax on employee salaries.
2. Subtraction of the mandatory payment, that is, payment of the employee’s labor income taking into account the calculated tax.
3. Transfer of income tax to the appropriate budget.

According to the norms of Russian legislation, an employee who has a tax agent (for official employees, this is considered an employer) is considered to have fulfilled his tax obligation in absentia within the framework of the relevant Code at the time the tax is deducted. If the enterprise has not transferred the specified amount to the budget, only the organization itself, and not the employee, is responsible for this.

Payment deadlines

Payment of personal income tax is made within the time limits established by law. Despite the payment of wages in the form of an advance and the main payment, deduction is made once at the end of the month.

Terms vary depending on the payment method:

Individual entrepreneurs and individuals pay personal income tax at the end of the reporting period. Funds must be received no later than July 15 of the following year.

For advance payments to individuals, deadlines are set depending on the reporting period. In the first half of the year, payments are made until 15.07, in the third quarter - until 15.10, and in the fourth - until 15.01.

Penalties will not apply if funds are withheld and transferred on time. Therefore, employers, individual entrepreneurs and individuals should carefully monitor this.

Personal income tax benefits in 2021 are available to certain categories of persons who are completely exempt from paying it. Such citizens include bankrupts and borrowers who have restructured their mortgage.

We'll tell you how to return excessively withheld personal income tax.

The personal income tax payment deadline can be viewed.

It happens that, by mistake of an accountant, personal income tax was not withheld from the employee and was not transferred to the budget. What to do in such cases and how to competently correct the error that has arisen with minimal risks?

Payments are made during the tax period

Let's consider two options with clear examples: when payments are made to an employee in cash during the entire tax period (that is, a year) and when such payments are not expected. Example No. 1.

In June 2021, employee Potapenko G.N. was accrued and paid vacation pay for 2 weeks of vacation in the total amount of RUB 28,673.00. Potapenko G.N. is a resident of the Russian Federation. Of the accrued vacation pay, 1,600.00 rubles were withheld and transferred to the personal income tax budget. Employees are not provided with personal income tax deductions.

However, the accountant made a mistake in calculating the tax, since the amount of personal income tax subject to withholding should be equal to RUB 3,727.00. (RUB 28,673.00 × 13%=RUB 3,727.00). That is, the tax on vacation pay was not withheld in full. A shortcoming in the calculation was discovered by the accountant on December 1, 2021 Potapenko G.N. continues to work and receives income in cash to the present day.

In the situation considered, the organization, as a tax agent, is recommended to recalculate the amount of personal income tax for the employee for the period from June 2017 to December 2021 inclusive and withhold until the end of the tax period (that is, until the end of 2021) from the employee’s cash income the missing amount of personal income tax 2127.00 rub. (for example, from wages, bonuses, sick leave, etc.) and transfer it to the budget. But at the same time, it is important to remember that the total amount of personal income tax withheld should not exceed 50% of the income paid in cash to the employee (clause 4 of Article 226 of the Tax Code of the Russian Federation).

Further, in connection with the recalculation of personal income tax, you need to submit an adjustment declaration 6-personal income tax for six months and 9 months of 2021, and before April 2, 2021, submit a declaration 6-personal income tax and certificates 2-personal income tax for the entire year 2021.

Is it possible to claim a deduction in this case?

As a rule, the question of the actual transfer of tax to the budget is raised in connection with the need to obtain tax benefits in the form of a deduction. Will the withheld tax amount be returned if the tax agent did not transfer it to the budget?

This situation is explained by the Letter of the Federal Tax Service dated June 15, 2012 No. ED-3-3/ [email protected] It states that the Tax Code of the Russian Federation does not make the opportunity to receive a deduction dependent on the tax agent fulfilling his duties in full. That is, if personal income tax was withheld from an employee, he cannot be denied a deduction.

The employer will be a tax agent for the people working for him and therefore he is obliged not only to withhold tax amounts, but also to transfer them to the budget. The employee is released from liability for non-payment of tax from the moment when personal income tax is actually withheld from him. However, he can file a complaint against the employer with the labor inspectorate or tax office.

No more payments expected

You need to act differently if during the remaining tax period the payment of income to the employee in cash was no longer made. Example 2.

On November 15, 2021, employee I. D. Romanova was paid upon dismissal (wages for days worked amounted to RUB 20,500.00 and vacation compensation amounted to RUB 12,650.00). The accountant calculated the amount of personal income tax to be withheld and transferred to the budget in the total amount of 2665.00 rubles. The amount paid to the employee was RUB 30,485.00.

The accountant made a mistake - the amount of personal income tax was withheld only from the salary of I.D. Romanova, and personal income tax was not withheld from the amount of compensation for vacations not taken and was not transferred to the budget.

Unwithheld personal income tax amounted to RUB 1,645.00. Due to the fact that the employee quit and, accordingly, no more income will be paid to him, it is not possible for the employer to withhold the missing amount of tax from the employee during the tax period. In this situation, the employer must provide the tax authority with a notification about the impossibility of withholding tax from an individual and the amount of tax. This information is provided by the tax agent in the form of 2-NDFL certificates with attribute “2” for each individual for whom tax was not withheld.

In the considered example 2, a 2-NDFL certificate for employee I.D. Romanova must be submitted by the organization no later than March 1, 2018. After which the tax authority will send a notification to the individual I.D. Romanova. that she must independently pay the amount of personal income tax to the budget. In turn, the tax agent at the end of 2021 will also need to provide, in accordance with the general procedure, 2-NDFL certificates for all individuals (employees) with attribute “1” and a 6-NDFL declaration for the 12 months of 2021 by April 2, 2021 .

However, it cannot be said that the tax inspectorate will not collect penalties and fines from the employer as a result of failure to withhold personal income tax amounts; this risk remains in such cases. Materials from the newspaper “Progressive Accountant”, April 2018

Availability of the right to receive a tax deduction

Most often, the question of whether the employer transfers the tax deducted from the employee to the budget arises due to the need to apply for and receive tax-type benefits (for example, deductions). The refusal of the tax authority in such cases is unlawful.

According to Letter No. ED-3-3/ [email protected] dated June 15, 2012, the Tax Code does not contain information that the possibility of obtaining a tax deduction depends on the full performance of the duties of the tax agent.

The employer, as a tax agent for employees employed by him, is obliged to withhold income tax and transfer it to the appropriate budget. The moment the tax is deducted from the employee, he is considered to have fulfilled his tax obligation to the state. If desired, an employee can contact the authorized bodies if he discovers tax violations on the part of the employer.

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