6 Personal income tax: tax paid before salary was issued

For one reason or another (due to an error, intentionally, due to a subsequent possible lack of funds in the current account), companies transfer personal income tax in a larger amount than they withheld from the employee. However, according to the regulatory authorities, it is impossible to reduce current personal income tax payments by the amount of such an overpayment.

In practice, a common situation is when, having transferred an excess amount of personal income tax (for example, due to a counting error), the company transfers a smaller amount in the next period, that is, it independently offsets the overpaid amount of personal income tax.

If this rule works for “ordinary” taxes, then the situation is different with regard to personal income tax. Many tax agents are faced with the fact that the tax office ignores overpayments and charges penalties and fines on the unpaid amount of personal income tax.

In order to understand the reason for additional personal income tax assessments in such a situation, let us turn to the definition of a tax agent.

Tax agent concept

The concept of tax agents is given in Article 24 of the Tax Code of the Russian Federation.
Tax agents are persons who are entrusted with the responsibility for calculating, withholding from an individual and transferring taxes to the budget system of the Russian Federation. The functions of a tax agent include the correctness and timeliness of calculation and withholding of taxes from funds paid to taxpayers, as well as transfer to the appropriate accounts of the Federal Treasury. In terms of personal income tax, the fulfillment of the duty of a tax agent is to withhold the accrued amount of tax directly from the income of an individual upon their actual payment (Clause 4 of Article 226 of the Tax Code of the Russian Federation). Failure to fulfill the duties of a tax agent entails the accrual of penalties and fines (Article 75, Article 123 of the Tax Code of the Russian Federation). When calculating personal income tax, the main role is played by the date of actual receipt of income. It is the date of actual receipt of income that determines the moment of deduction and transfer of personal income tax.

Until when do you pay personal income tax on your salary?

The deadlines for paying personal income tax on wages withheld by a tax agent are specified in paragraph 6 of Article 226 of the Tax Code of the Russian Federation.

In general, the transfer to the budget must be made the next day after the money is paid. If the personal income tax payment deadline falls on a weekend, it is postponed to the first next working day.

The organization must pay wages to employees at least twice a month (Part 6 of Article 136 of the Labor Code of the Russian Federation). When is personal income tax paid on wages for the first half of the month? When should you pay personal income tax on your salary if the wage system provides for weekly transfers of remuneration for work?

In order not to miss the transfer of personal income tax from your salary, we will provide the deadlines in one table:

Type of payment	Personal income tax payment deadline
Advance (for the first half of the month) Transfer for the first, second, etc. weeks of the month, for part of the time worked	On the day following the day of payment of full monthly wages
Salary for the whole month	The next day after the date of income transfer
Calculation of severance
Financial assistance, other one-time payments
Payment of dividends, including “interim” ones

An important rule should be added about material assistance: amounts provided to an employee as additional financial support are not always subject to personal income tax. In particular, you can do without withholding income tax if during the year the employee received financial assistance in an amount not exceeding 4,000 rubles. The grounds for such payments are provided in Art. 217 Tax Code of the Russian Federation. The same article states that the employer does not withhold personal income tax from an amount of up to 50,000 rubles paid in connection with the birth of an employee’s child. And according to the Explanations of the Ministry of Finance of Russia in Letter No. 03-04-07/62184 dated September 26, 2017, each parent has the right to a non-taxable limit, that is, in general, a young family can receive up to 100,000 rubles without paying personal income tax.

Date of actual receipt of income

Each type of income has its own date of actual receipt.
For example, when receiving income in cash, the date of income is defined as the day the income is paid, including the transfer of income to the taxpayer’s bank accounts or, on his behalf, to the accounts of third parties (clause 1 of Article 223 of the Tax Code of the Russian Federation). When receiving income in the form of wages, the date of actual receipt of income is the last day of the month for which the employee was accrued income (clause 2 of Article 223 of the Tax Code of the Russian Federation). That is, income in the form of wages arises for the employee only on the last day of the month (Letters of the Ministry of Finance of the Russian Federation dated October 27, 2015 No. 03-04-07/61550, dated July 22, 2015 No. 03-04-06/42063).

The accrued amount of personal income tax on temporary disability benefits and vacation payments must be transferred no later than the last day of the month in which they were paid (clause 6 of Article 226 of the Tax Code of the Russian Federation).

Tax agents are required to withhold the calculated amount of personal income tax directly from the employee’s income upon actual payment (Clause 4 of Article 226 of the Tax Code of the Russian Federation).

In practice, many different situations arise when it is not clear at what point an employee’s income arises and, accordingly, the tax agent’s obligation to calculate, withhold and transfer the amount of personal income tax.

Explanations of the date of personal income tax withholding in difficult situations are discussed in Letter of the Ministry of Finance of the Russian Federation dated July 25, 2016 No. 03-04-06/43479.
In the Letter, representatives of the financial department took into account the position given in the Ruling of the RF Armed Forces dated May 11, 2016 No. 309-KG16-1804. EXAMPLE No. 1.
Salaries to company employees are paid twice a month:

advance payment - on the last day of the current month;
final payment is due on the 15th of the next month.

Believing that the amount of personal income tax was not withheld from the advance payment, the company paid personal income tax only at the time of final settlement with employees, that is, on the 15th of the next month.
During the audit, tax inspectors recognized the company’s actions as unlawful, assessed penalties and fined the tax agent on the basis of Article 123 of the Tax Code of the Russian Federation.

The tax agent argued that when paying wages twice a month, the obligation to withhold and transfer personal income tax to the budget arises only once during the final calculation of the employee’s income based on the results of each month for which income was accrued to him.

However, senior judges did not find the tax agent's argument convincing. Since income (advance) to employees was paid on the last day of the month, the tax agent had an obligation to calculate and withhold personal income tax amounts in accordance with clause 2 of Article 223 of the Tax Code of the Russian Federation.

That is, in this example, the employer was obliged to withhold personal income tax both on the date of the advance payment and on the date of payment of the second part of the salary to the employee.

GLAVBUKH-INFO

The timing of payment of personal income tax calculated and withheld from employees’ wages depends, among other things, on whether wages are paid in cash from the cash register or transferred to employees’ bank accounts (salary cards). Everyone understands that it is important not to be late in transferring taxes to the budget. But there is no need to rush into this either. After all, not so long ago, the tax service clarified that the amount transferred to the budget as personal income tax in advance (before deducting it from the income of individuals) is in fact not a tax. Thus:

transfer personal income tax later than the deadline established by the Tax Code, you may incur penalties and a 20% fine;
transfer personal income tax ahead of schedule, inspectors may consider personal income tax unpaid, and the transferred money as mistakenly paid. Moreover, it may not be possible to offset them against the payment of your personal income tax debts. And then you will have to transfer personal income tax again to the budget, pay penalties and fines.ÂÂÂ

Well, or sue, proving that you did not transfer your own funds to the budget, but the personal income tax of your employees, although you did it ahead of schedule.

When paying an advance, we do not transfer personal income tax

The day of receipt of salary is considered to be the last day of the month for which it was accrued. Therefore, regardless of the procedure for paying wages, personal income tax should be withheld and transferred to the budget once during the final calculation of the employee’s income for the entire month. Before the end of the month, income in the form of wages cannot be considered received and cannot be calculated. Therefore, when paying employees wages for the first half of the month, there is no need to withhold and transfer tax to the budget.

However, this approach is inconvenient if for the first half of the month the salary is calculated based on the time worked (as required by the Labor Code). After all, if one of the employees does not work a day in the second half of the month (for example, he gets sick or takes a vacation at his own expense) and the salary for the second half of the month is not accrued to him, then there will be nothing to withhold personal income tax calculated from the salary for first half of the month.

Therefore, there are several approaches used by accountants.

APPROACH 1. Accrue the salary for the first half of the month, reduced by the amount of personal income tax. Postings for withholding personal income tax when accruing and paying such an advance are not made. All personal income tax is withheld from the salary for the second half of the month (at the final settlement). For example, an employee’s salary is 30,000 rubles. (minus personal income tax, the employee receives 26,100 rubles). He receives 13,050 rubles as an advance payment. (RUB 26,100 / 2) by posting to the debit of account 20 “Main production” and the credit of account 70 “Payroll payments”. The same amount is paid to the employee. And upon final payment for the month, 16,950 rubles are credited. (30,000 rubles - 13,050 rubles), of which personal income tax is withheld in the amount of 3,900 rubles. (RUB 30,000 x 13%). On the last day of the month, a posting is made to the debit of account 70 and the credit of the subaccount “Calculations for personal income tax” of account 68 “Calculations with the budget for taxes and fees”. The employee receives 13,050 rubles. (RUB 16,950 - RUB 3,900). In this slightly crooked way, a result is achieved in which the employee receives approximately the same amounts both in advance and on the day of final payment for the month. And at the same time, personal income tax is withheld from wages for the second half of the month and transferred to the budget at the required time. Neither employees nor tax inspectors should have any complaints. And the accountant always has an amount from which personal income tax can be withheld. After all, even if an employee is ill throughout the second half of the month, at the end of the month he will have accruals equal to the amount of personal income tax from his salary for the first half of the month.

APPROACH 2. For the first half of the month, pay the salary in full, without its virtual reduction by the amount of personal income tax. Then withhold the tax, but you don’t need to transfer it to the budget right away: after all, we remember that according to the Tax Code rules, you need to wait for the final payment for the month and then transfer this tax along with personal income tax from your salary for the second half of the month. In our example:

the employee will be credited 15,000 rubles for the first half of the month, and 1,950 rubles will be withheld. (RUB 15,000 x 13%) - this amount will be credited to account 68-“Personal Income Tax Payments” until the end of the month;
the employee receives 13,050 rubles;
for the second half of the month, the employee will also be credited 15,000 rubles, personal income tax will also be withheld 1,950 rubles;
When transferring wages for the second half of the month to the employee’s bank card, personal income tax in the amount of 3,900 rubles is paid to the budget.

APPROACH 3. In the old fashioned way (without taking into account the modern requirements of the Labor Code), consider monthly payments to an employee not as “salary for the first half of the month + salary for the second half of the month,” but as “advance payment + final payment.” Just keep in mind that the amount of the advance should depend on the time actually worked in the first half of the month and the “net” salary (excluding personal income tax). With this approach, when paying an advance, there is no posting at all for its accrual - there is only a posting for payment on the debit of account 70 and the credit of account 50 “Cash” or 51 “Cash accounts”. In our example, the employee was given an advance in the amount of 13,050 rubles.

The employee's debt is listed in accounting until the end of the month.

At the end of the month, the salary for the entire month is accrued immediately in the amount of 30,000 rubles. and personal income tax is withheld from it in a single amount - 3900 rubles. It is transferred to the budget within the time limits established by the Tax Code.

Please note that all three approaches that we have considered have different “fillings” - how the accrual of an advance is reflected in accounting and when personal income tax is withheld from it. However, the employee receives the same amounts in his hands and the personal income tax is also paid to the budget in equal amounts and at the same time - within the period established by the Tax Code.

The second approach is more focused on the rules of the Labor Code. After all, according to the Labor Code, we must pay the employee wages twice a month. And only for tax purposes, the employee receives income once a month. Thus, with the second approach, withholding personal income tax from wages for the first half of the month is contrary to the recommendations of the Ministry of Finance, but it is unlikely that anyone will file a claim against the organization.

Salary to a bank card - personal income tax to the budget

When salaries are transferred to employees’ bank cards, it would seem that everything should be simple and clear. Personal income tax must be transferred to the budget on the day the salary is paid. Therefore, the payment slip for personal income tax must be submitted to the bank at the same time as the payment slip for the transfer of wages for the second half of the month. However, the specifics of the salary project may make adjustments to this rule. It often happens that in order to transfer money to employees’ salary cards, the following is required:

draw up one payment slip for the total amount of payments to employees - on its basis, the money is debited from the organization’s current account;
provide the bank with a register for crediting funds - according to such a register, money is credited to the personal accounts of employees (to their bank cards).

And if on the same day, due to the technical features of the banking program, it is not possible to combine these two actions, then the question arises: what is considered the date of salary payment and, accordingly, when to submit a personal income tax payment to the bank? Having considered this situation, the Ministry of Finance logically reasoned that at the time the general payment slip is submitted to the bank, no income arises for the employees, because they did not receive the money and could not receive it. Therefore, personal income tax must be transferred to the budget on the day the money is credited to the employees’ card accounts. But the organization is unable to control the process of such enrollment. After all, the agreement with the bank may indicate that money is not credited to employees’ bank cards exactly the same day, but, for example, within 3 days. However, inspectors will have to work hard to check the date of crediting money to employees' accounts. Therefore, it is logical to assume that if the money was not returned to the organization’s bank account, then the employee received it on the same day that the organization submitted the “salary” register to the bank. And it is with the register that you should submit a payment slip for personal income tax.

Note. The Letters from the Ministry of Finance and the Federal Tax Service mentioned in the article can be found in the “Financial and Personnel Consulting” section of the ConsultantPlus system

Withdrew money from a bank account to pay salaries - transfer personal income tax

Now let's see when you need to pay personal income tax if the salary is issued from the cash register, for which money is withdrawn from the bank account. For such a case, there is a special rule for withholding and transferring tax. It must be paid to the budget no later than the day the cash is received from the bank for the payment of wages, that is, the payment slip for the payment of personal income tax must be submitted to the bank on the same day when the cash is withdrawn by check. Moreover, it does not matter whether workers receive their salaries on the same day or not. What to do if the employee does not show up for his salary on the days it is paid? In this case, is it not necessary to write any applications to the inspectorate for a personal income tax refund, and subsequently pay it again (on the day the employee receives the money) or make any other adjustments? A specialist from the Ministry of Finance answered this question.

FROM AUTHENTIC SOURCES

STELMAKH NIKOLAY NIKOLAEVICH - Advisor to the State Civil Service of the Russian Federation, 1st class

“When an organization withdraws money from a bank account to pay salaries, it needs to transfer personal income tax withheld from employee income. If one of the employees cannot receive a salary from the cash register within the time period established by the organization - for example, due to illness, it is deposited (that is, it is considered received with a deferment). At the same time, there is no need to return personal income tax from the budget - the Tax Code does not contain such a procedure. Upon returning to work after illness, the employee will receive the amount of his salary minus personal income tax from the cash register.”

As you can see, the fact that the employee received his salary later does not in any way affect the organization’s calculations with the budget. By the way, the courts also believe that depositing wages does not relieve the tax agent from the obligation to transfer the withheld personal income tax to the budget. And if the organization transfers the tax later than necessary (for example, not on the day of withdrawing cash from the current account, but on the day the employee receives the deposited salary), then it faces penalties and a fine in the amount of 20% of the personal income tax amount.

However, there are exceptions to any rule. Let's see if there are exceptions to this rule.

FROM AUTHENTIC SOURCES

STELMAKH NIKOLAY NIKOLAEVICH, Advisor to the State Civil Service of the Russian Federation, 1st class

“If the situation is tragic, the employee has died, then the money accrued to him should be given to the relatives of the deceased. When payments (including wages) are accrued to a deceased employee, the amounts received by inheritance (with the exception of royalties) are not subject to personal income tax. Consequently, the organization should not calculate personal income tax on income accrued to a deceased employee. If the employee’s salary was accrued for the time worked (and he subsequently died) and personal income tax was withheld and transferred to the budget when receiving cash from the bank to pay such a salary, then there is no need to recalculate the tax when depositing it. After all, personal income tax was withheld and transferred to the budget in the manner established by the Tax Code. The organization did not make any mistakes. In this case, there are no grounds for a tax refund from the budget, because the tax can only be returned upon the application of the taxpayer (and since the employee has died, there cannot be an application from him).”

Salary from proceeds - personal income tax to the budget the next day

When an organization has cash revenue, it can be used to pay salaries, without necessarily withdrawing money from a bank account. Then the organization must pay the personal income tax withheld from wages for the second half of the month to the budget no later than the day following the day cash is issued to employees.

Workers can receive wages on different days. For example, a local regulation stipulates that salaries are paid until the 7th of the next month, and each department has its own day: one department receives salaries on the 5th, another on the 6th, and a third on the 7th. Or it may turn out that one of the employees does not come to collect their salary on the appointed day. How to transfer personal income tax to the budget in such situations? Obviously, one payment plan for all employees is not enough. In order to comply with the requirements of the Tax Code, the tax will have to be transferred to the budget in different payments over several days.

And one more feature: in the situation considered, the organization can transfer personal income tax to the budget directly on the same day on which it paid the salary from the proceeds. There is no need to wait until the next day. Inspectors will not consider that it is not a tax that is transferred to the budget, but something else (which we talked about at the beginning of the article). After all, on the day the tax is withheld and transferred to the budget, the employee’s income has already been paid.

* * *

As you can see, the easiest way is to transfer salaries to employees’ bank salary cards. And not only from the point of view of personal income tax accounting, but also from an organizational one.

——————————- Letter of the Federal Tax Service dated July 25, 2014 N BS-4-11/ [email protected] Articles 75, 123 of the Tax Code of the Russian Federation Resolution of the Federal Antimonopoly Service NWZ dated December 10, 2013 N A56-16143/2013; FAS North Caucasus Region dated November 18, 2013 N A01-2289/2012 Letters of the Ministry of Finance dated July 3, 2013 N 03-04-05/25494; Federal Tax Service dated May 26, 2014 N BS-4-11/ [email protected] clause 2 of Art. 223 Tax Code of the Russian Federation; Letter of the Ministry of Finance dated July 10, 2014 N 03-04-06/33737 pp. 4, 6 tbsp. 226 of the Tax Code of the Russian Federation, clause 4, art. 226 Tax Code of the Russian Federation; Letter of the Ministry of Finance dated 01.09.2014 N 03-04-06/43711 clause 6 art. 226 of the Tax Code of the Russian Federation Resolution of the FAS UO dated January 16, 2014 N F09-13857/13 articles 75, 123 of the Tax Code of the Russian Federation subp. 3 p. 3 art. 44, paragraph 18 art. 217 Tax Code of the Russian Federation; clause 1 art. 1183 Civil Code of the Russian Federation, clause 1, art. 231 of the Tax Code of the Russian Federation, paragraph 2 of the Central Bank Directive of October 7, 2013 N 3073-U, para. 2 clause 6 art. 226 Tax Code of the Russian Federation; Letter of the Ministry of Finance dated July 10, 2014 N 03-04-06/33737

FROM AUTHENTIC SOURCES

OPINION OF AN OFFICIAL, Stelmakh N.N., to the article by Elina L.A. “SUBTLETS OF RETENTION AND TRANSFER OF “SALARY” NDFL”

STELMAKH NIKOLAY NIKOLAEVICH - Advisor to the State Civil Service of the Russian Federation, 1st class

Elina L.A. Magazine "General Ledger" N20, 2014

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Transfer of personal income tax in a larger volume

Often, companies mistakenly or deliberately transfer personal income tax to the budget in a larger amount than is actually withheld from an individual. In this case, the purpose of payment indicates “Income tax for individuals”. Such actions often lead to tax disputes with tax authorities. And if previously the tax inspectorate could see the amount of personal income tax paid and accrued only after submitting a report on form 2-NDFL, which is submitted once a year, now tax officials see the payment of personal income tax quarterly using 6-NDFL certificates. How dangerous is “advance” personal income tax? How do tax authorities qualify such company actions?

Position of regulatory authorities

For a number of years, regulatory authorities believed that the listed “advance” personal income tax should be paid again (Letters of the Federal Tax Service of the Russian Federation dated September 29, 2014 No. BS-4-11 / [email protected] , dated July 25, 2014 No. BS-4 -11/14507, Ministry of Finance of the Russian Federation dated September 16, 2014 No. 03-04-06/46268, dated September 1, 2014 No. 03-04-06/43711). The letter of the Federal Tax Service of the Russian Federation dated May 5, 2016 No. SA-4-9/81160 was no exception in this sense. The reason is that the amount of personal income tax withheld from the income of an individual is transferred to the budget, but personal income tax cannot be transferred at the expense of one’s own funds (clause 9 of Article 226 of the Tax Code of the Russian Federation).

Therefore, the amount paid ahead of time is not considered tax and, in order to fulfill the duties of a tax agent, personal income tax must be paid again (for example, when paying wages - no later than the day following the day of payment of income - clause 6 of Article 226 of the Tax Code of the Russian Federation). If this is not done, then with a high degree of probability, tax authorities will charge additional penalties and a fine in the amount of 20% of the unpaid amount of personal income tax (Article 123 of the Tax Code of the Russian Federation). The amount of tax transferred in excess (before the established deadline) cannot be offset, but can only be returned on the basis of an application submitted to the tax office.

New sanctions if the deadline for paying personal income tax on wages is not met

If a company should have, but did not, withhold tax, then, according to the current version of Article 123 of the Tax Code of the Russian Federation, the tax inspectorate will charge it a fine in the amount of 20% of the amount not withheld or not transferred. In addition to the fine, the organization may also be charged penalties in accordance with paragraph 1 of Art. 75 of the Tax Code of the Russian Federation. Penalties are calculated based on the Central Bank key rate in effect at the time the debt arose in the following amounts:

for individual entrepreneurs - 1/300 of the Bank of Russia key rate, regardless of the duration of the delay;
for organizations: 1/300 of the key rate - for the first 30 days of delay;
1/150 of the rate - for each day, starting from the 31st day of delay.

The authorities are happy with such sanctions. However, the Constitutional Court, in Resolution No. 6-P dated February 6, 2018, indicated that the Tax Code of the Russian Federation needs to clarify the rules when a taxpayer can be released from liability for failure to pay personal income tax on wages or money paid under other agreements. Therefore, officials had to develop amendments to Art. 123 of the Tax Code of the Russian Federation, which provide the following clarification:

A tax agent is released from liability under this article if he submits to the tax authority within the prescribed period a tax calculation (tax calculation) containing reliable information, in the absence of facts of non-reflection or incomplete reflection of information and (or) errors in it, leading to an understatement of the amount of tax subject to transfer to the budget system of the Russian Federation, and this tax agent independently until the moment when he became aware of the discovery by the tax authority of the fact of untimely transfer of the amount of tax or the appointment of an on-site tax audit for such tax for the corresponding tax period, are listed to the budget system of the Russian Federation the amount of tax not transferred within the prescribed period, and the corresponding penalties.

Thus, after the adoption of the bill, there will be no fines for non-payment of personal income tax if several conditions are met simultaneously:

the company independently discovered the errors before the tax authority identified them;
previously unpaid amounts are transferred to the budget, and along with them penalties;
the reporting contains only correct information.

Let us note that the bill has already been approved by the State Duma in the first reading. It is possible that by the end of the year this document will be officially published and come into force. At the same time, the new rules for exemption from liability will have a retroactive effect, that is, they will be available to all employers who previously independently identified underpayments and paid penalties, but submitted reports with the correct information. This is directly provided for in paragraph 3 of Art. 5 Tax Code of the Russian Federation.

Arbitration practice

Let us analyze court decisions regarding the legality of offsetting overpayments of personal income tax that arose in connection with the transfer of tax in a larger volume.
It should be noted that today, judicial practice is in favor of the tax agent, despite the fact that regulatory authorities consistently refuse to allow companies to offset the excessively transferred tax against debt repayment.

The basis for the refusal is that payment of tax at the expense of tax agents is not allowed (clause 9 of Article 226 of the Tax Code of the Russian Federation).
EXAMPLE No. 2.
For 2 years, the company transferred payments to the budget with the purpose of “Individual Income Tax” in a larger volume than was withheld from the individual, and therefore, an overpayment of personal income tax arose.

Subsequently, when paying income to an individual, the company withheld the calculated amount of personal income tax from his income, but did not transfer it to the budget, assuming the right to offset the overpaid tax. However, during the audit, the tax authorities considered the company’s actions to be a tax offense under Article 123 of the Tax Code of the Russian Federation, which was reflected in the failure to transfer personal income tax amounts within the prescribed period, and the amounts paid in advance were qualified as tax paid at the expense of the tax agent’s own funds.

The courts of two instances supported the arguments of the tax inspectorate regarding the violation of the deadlines for transferring personal income tax to the budget.

The cassation court overturned the decisions of previous courts based on the following arguments.

As a general rule, the obligation to pay tax must be fulfilled within the period established by the legislation on taxes and fees (paragraph 2, paragraph 1, article 45 of the Tax Code of the Russian Federation). The taxpayer has the right to fulfill the obligation to pay tax ahead of schedule. At the same time, the rule on early payment of tax also applies to tax agents (clause 8 of Article 45 and clause 2 of Article 24 of the Tax Code of the Russian Federation).

The cassation judges analyzed the rules for tax offset established by Article 78 of the Tax Code of the Russian Federation. The offset of the amounts of overpaid federal taxes and fees, regional and local taxes is carried out for the corresponding types of taxes and fees, as well as for penalties accrued on the corresponding taxes and fees.

The rules established by Article 78 of the Tax Code of the Russian Federation also apply to the offset or return of amounts of overpaid advance payments, fees, penalties and fines and apply to tax agents (Clause 14 of Article 78 of the Tax Code of the Russian Federation).

Thus, based on the analysis of the above rules, the tax agent has the right to offset the amount of overpaid taxes, which are federal, against upcoming payments, as well as repayment of arrears on personal income tax.

In this situation, the company transferred personal income tax in advance, as a tax agent, and subsequently, when paying income to the taxpayer, always withheld the calculated personal income tax from the taxpayer’s income.

As the court noted, payment of personal income tax at the expense of a tax agent will take place when personal income tax is paid by the tax agent not “for the taxpayer,” but “instead of the taxpayer,” that is, when paying income, personal income tax is calculated and transferred to the budget, but is not withheld by the tax agent from the income taxpayer.

And therefore, the early transfer by the personal income tax company of the offense established by Art. 123 of the Tax Code of the Russian Federation, does not form.

In addition, due to the legal position of the Constitutional Court of the Russian Federation, set out in the ruling dated 02/08/2007 No. 381-0-P, all guarantees of property rights apply to overpaid taxes.

In this tax dispute, the cassation court made an important conclusion for tax agents: under such conditions, the refusal to recognize personal income tax paid by the tax agent ahead of schedule creates artificial grounds for bringing the tax agent to tax liability, and the offset of these amounts as tax and recording by the tax authority the absence of arrears is an obstacle to bringing to tax liability (Resolution of the Moscow District Administration of July 28, 2016 No. A40-128534/2014).

In the Decisions of the Autonomous Okrug of the Yamalo-Nenets Autonomous Okrug dated May 25, 2016 No. A81-978/2016, the Autonomous Authority of the Kamchatka Territory dated June 15, 2015 No. A24-244/2015, and the Resolutions of the Autonomous District of the Volga-Vyatka District dated February 19, 2016 No. A38 -6347/2012, West Siberian District dated October 26, 2015 No. A27-1682/2015, East Siberian District dated June 10, 2015 No. A58-4233/20144, Ural District dated May 26, 2015 No. F09- 2467/15 and dated 02/06/2015 No. Ф09-10188/14, the tax inspector’s argument that the amount of personal income tax excessively transferred by the tax agent is not an overpaid tax payment was also rejected, since payment of tax at the expense of the tax agent is not allowed ( Clause 9 of Article 226 of the Tax Code of the Russian Federation).

It should be noted that in the database of arbitration cases there are court decisions that support the position of the tax authorities. For example, in the Resolution of the Arbitration Court of the North-Western District dated June 19, 2015 No. A56-41307/2014, the court agreed with the tax inspectorate’s arguments regarding holding a tax agent liable under Article 123 of the Tax Code of the Russian Federation due to the transfer of personal income tax to the budget before the payment of income to an individual face.

If a company has overpaid personal income tax, it should contact the tax office with an application for a tax refund. After all, according to the regulatory authorities, this amount cannot be offset against future personal income tax payments, but can only be returned. To do this, you must submit an application in free form (Letters of the Ministry of Finance of the Russian Federation dated November 12, 2014 No. 03-04-06/57158 and the Federal Tax Service of the Russian Federation dated July 4, 2011 No. ED-4-3/10764).

However, when returning the overpaid personal income tax to the current account, tax agents may also face difficulties.
If tax registers are not provided (in particular, cards for accounts 68 and 70), the tax inspectorate has the right to refuse a tax refund and the courts support the inspection. EXAMPLE No. 3.
The company mistakenly transferred personal income tax to the budget and applied to the tax office for a refund.

In the statement, the company noted that the specified amount of tax was not withheld from individuals. Only a copy of the payment order was attached to the refund application.

The tax office refused to refund the tax amount to the company, indicating that these documents were not enough. Without tax registers (cards were requested for accounts 68 “Calculations for taxes and fees” and 70 “Settlements with personnel for wages”) it is impossible to determine the amount of overpayment of tax.

When deciding in favor of the tax inspectorate, the judges proceeded from the following:

- the fact of filing an application for the return to the current account of the amount erroneously transferred to the budget does not indicate the existence of grounds for the return of this amount automatically; - the tax agent must document that personal income tax is transferred to the budget in excess of the amount of tax actually withheld from the income of individuals, is not related to the performance of the duty of a tax agent, and is transferred erroneously from one’s own funds;

- in order for the tax authority to be able to determine the nature of the amount paid by the applicant, the company had to submit supporting documents (tax registers, account cards 68 “Calculations for taxes and fees”, 70 “Settlements with personnel for wages”), since in the absence of an analytical accounting for account 70, it is not possible to draw a conclusion about the presence of an overpayment (non-payment) of personal income tax, as well as to qualify what caused the overpayment (non-payment) of personal income tax: at the expense of the tax agent’s own funds or due to incorrect calculation of personal income tax for the taxpayer;

- the list of payment orders for payment of personal income tax in itself does not allow determining the presence of overpayment (non-payment) of personal income tax; in payment orders the amount of payment for the specified period is indicated without breakdown by specific individuals; The register of information on the income of individuals is reference general information.

And since the company did not provide evidence to confirm the overpayment of tax and did not attach a corresponding document indicating an erroneously excessive payment, the courts came to the conclusion that the tax authority had no grounds for returning the amount of money (Resolution of the AS of the West Siberian District dated October 30, 2015 No. A67-8760/2014).

When to pay income tax on wages?

In order to correctly calculate how much personal income tax on an employee’s salary will need to be paid to the state budget, the taxpayer status must be correctly established.

If you stay on the territory of the Russian Federation for more than 183 days in the previous calendar year, the person will be considered a tax resident.

In this case, the tax rate will be 13%. Otherwise, it increases to 30% for non-residents. In this case, the citizenship of a person does not matter at all.

The procedure for calculating the income tax you need to pay includes 4 important steps:

The summation of all income received by an employee (this includes salary, allowances, bonuses).
Carrying out necessary deductions and withholdings.
Determination of tax rate based on payer status.
Calculation of the amount to be paid.

We also recommend reading the article: how to calculate personal income tax if there are children in the family.

Important! The deadline for receiving wages as income is set on the day the funds are issued in person or the moment they are transferred to the card. At the same time, we need to keep the NLFL. And then transfer it on the day of retention or the next.

One of the controversial issues is the withholding of personal income tax from the advance part of wages. There is an opinion that income tax should be withheld and transferred directly when issuing an advance to an employee.

Another opinion says that the advance must be paid in full without withholding, and income tax must be deducted and paid from the advance when the full amount of wages is paid within the established period for transfer.

Most opinions still lean toward the second point of view.

How to legally avoid paying personal income tax?

When to transfer an employee's vacation pay?

It should be immediately noted that the personal income tax rate that must be paid on vacation pay also varies depending on the status of the payer.

For residents it is the traditional 13%, for everyone else – 30%.

Until 2021, payment of personal income tax on vacation pay was carried out according to general principles that applied to the withholding of tax fees for wages.

Subsequently, the Supreme Arbitration Court of the Russian Federation decided that despite the inclusion of vacation pay in wages by the Labor Code, the current norms of the tax code relate exclusively to wages, but not to vacation pay.

Important! Starting from 2021, after the new edition of Article 226 of the Tax Code of the Russian Federation comes into force, the process and timing of transferring income tax accrued on vacation pay implies making payments no later than the last day of the month in which the employee received the money.

The tax base is the full amount of vacation pay actually paid. When an employee goes on partial vacation, personal income tax is calculated only on the amount of vacation pay actually paid.

From sick leave

Payments for temporary disability certificates are calculated within 10 days after the employee provides sick leave. The actual transfer of personal income tax funds is made on the nearest day of payment of wages (the main part or advance).

Thus, the deadline for paying income tax will be the last day of the month.

How is sick leave subject to personal income tax?

With compensation for unused vacation upon dismissal

Some employees do not take vacations due to personal reasons. In this case, upon dismissal, according to the law, they are entitled to compensation for the unused rest period.

The question arises whether the employer is obliged to remit income tax if the vacation is compensated by cash payments.

The answer is clear - it should.

Important! When calculating compensation for unused vacation days, the employer must withhold income tax on the employee’s last day of work - the day the dismissal is formalized.

Next, personal income tax must be paid to the budget no later than the next day.

With financial assistance

Despite the fact that receiving financial assistance cannot be classified as earnings, it is also subject to income tax. The exception is a number of cases that are clearly stipulated by law.

According to the provisions of Article 217 of the Tax Code of the Russian Federation, financial assistance is not subject to personal income tax:

when making a payment in the form of a one-time participation;
if assistance is provided by charitable companies;
when compensating for losses due to natural disasters;
if payments are made to victims of a terrorist attack;
pensioners, subject to the requirements of the law on lump sum payments to citizens receiving a pension.

Financial assistance received from an employer is taxed if the amount of payments during the reporting period exceeds 4,000 rubles. If the amount of accruals is less, then you do not need to pay personal income tax.

conclusions

The safest option for a tax agent is to avoid overpaying personal income tax using your own funds.
The most unsafe option, which will most likely lead to tax disputes, is to independently offset the overpaid personal income tax against upcoming payments.

If, after all, the company overpaid personal income tax, then it is best to contact the tax office with an application for a refund. True, the tax agent must document the existence of an overpayment by submitting tax registers to the tax office.

Irina Starodubtseva, expert auditor,