We change vacation for money - payment of monetary compensation for unused vacation. Compensation for unused vacation

Question about compensation for unused vacation upon dismissal It happens all the time: as often as people quit. Earlier, we already considered the issue of, in this article we deal in detail with issues related to vacation compensation, but already upon dismissal.
Recall that annual paid leave can be replaced by monetary compensation only if its duration exceeds 28 calendar days. It is not allowed to replace paid leave with money for employees employed in hazardous and hazardous industries, pregnant women and minors.
However, these rules cease to work in the event of the dismissal of an employee, which is clearly stated in Article 126 of the Labor Code of the Russian Federation, i.e. all employees, regardless of the reason for dismissal, should receive compensation for unused vacation. Moreover, if an employee is fired under the article, it still means that the employee must receive compensation for unused vacation.

Moreover, in the Labor Code of the Russian Federation and other normative documents more details about the features leave compensation upon dismissal of employees:
1. Compensation pays for all holidays that were not used.
2. Unused vacations at the request of the employee are granted with subsequent dismissal. The last day of dismissal will be considered the last day of vacation. Therefore, if there are a lot of vacation days, then the date of dismissal will be shifted. This must be taken into account by workers who are expected in a new place. That is, you can write an application for a vacation with subsequent dismissal, and then the last working day will be the last day of vacation, or you can choose compensation, while the last working day will be the day of dismissal. The amount of payment (compensation) will be exactly the same.
It is important to know that an employee can withdraw his application for resignation (when granting leave with dismissal) before the start of the vacation, but only if another employee was not invited to take his place in the transfer order.
3. If the employee is issued, then leave with subsequent dismissal can be granted even if the end of the leave goes beyond the term of the employment contract.
4. If the employee leaves after 11 months of continuous work (no vacations were granted), then compensation is provided in full (in full). Usually it is 28 calendar days. Also, the employee can count on compensation in full if the employees have worked from 5.5 to 11 months in cases of liquidation of the enterprise, income from military service, inability to work. In other cases, employees receive compensation proportional to the hours worked according to the following rule: if the hours worked are less than half a month, then this time is discarded; if the hours worked are more than half a month, then this time is rounded up to a month.
5. Compensation for unused vacation must be paid on the day of dismissal, and if the employee goes on vacation with subsequent dismissal, then the calculation is carried out on the last working day, i.e. the employee goes on vacation already with full calculation and labor on hand. For the delay wages the employee can count on compensation in the amount of 1/300 of the refinancing rate.
6. If an employee was on vacation for more days than vacation pay is due, then vacation pay for unworked days is deducted from the employee's salary.

Calculation of compensation for unused vacation:
To calculate compensation, you must use the formula: the average monthly salary is divided by 29.4 (this is the average number of days in a month, the number 29.3 is indicated in old sources - it is incorrect!) Multiplied by the prescribed number of vacation days (usually 28 days per year ), and then multiplied by the number of months worked (according to the rule above) and divided by 12.
For example, with an average salary of 20 thousand rubles and the number of months worked equal to 8, the calculation will be carried out as follows:
20,000 / 29.4 x 28 x 8 / 12 = 12698.41 rubles

For ease of calculation for 28 calendar days of vacation, the calculation is carried out according to a simplified formula:
multiply earnings by the number of months without vacation and multiply by the number 0.079365 (coefficient for calculating vacation pay). For example, for the same 8 months and with earnings of 20,000 per month, it will turn out: 20,000 rubles. x 8 months x 0.079365 = 12698.4 rubles.

What is taken into account when calculating compensation for unused leave upon dismissal:
1. employee's salary;
2. additional payments for work at night, under harmful and dangerous conditions, etc.;
3. allowances for class, academic degree.

What is excluded when calculating compensation for unused vacation upon dismissal:
1. breaks for feeding the baby;
2. breaks for temporary disability and childbirth or for pregnancy and childbirth;
3. weekends for the care of the disabled;
4. the employee did not work due to the fault of the employer or due to a strike;
5. in other cases, when the employee was released from work for good reasons;
6. payments of a social nature, such as food, travel, etc.

Conclusions:
- on the compensation for unused vacation all employees can count, regardless of the reason for dismissal;
- for every 11 months of work, 28 calendar days of vacation are due, for the rest of the period, vacation days are considered in proportion to the months worked;
- settlement with the employee must be carried out on the last day of being at the workplace (day of dismissal);
- if the employee rested on vacation, then in the final calculation, excess vacation pay is withheld from the salary.

You can't work without holidays, just like you can't work without lunch breaks or weekends. This prohibits both common sense as well as legislation. For each honestly worked year for Labor Code 28 vacation days.

And under harsh working conditions or a specific specialty of the employee, the legislation not only allows, but also obliges the employer to provide additional days off.

But what to do if you can’t take a break from work for some reason? Is there any compensation for unused vacation?

TC provides in this case 3 options when unused vacation can be replaced by monetary compensation:

1. Receive cash compensation for unused rest upon retirement or retirement provided that the duration of the leave does not exceed 28 days.
2. Receive compensation in monetary terms for, if provided.
3. Use non-vacation leave.

The principle of calculating the amount of monetary compensation is reflected in the 922nd Decree of the Government of Russia (dated December 24, 2007).

The amount of vacation pay and compensation for them directly depends on the amount of official income - salary, bonuses for the 12 months preceding the legal leave or dismissal (retirement).

Example: a woman has been working at an enterprise since May 1, 2014, after the year 2016, she was transferred to another organization. For the entire period of work, the woman has never used her vacation and therefore now she is entitled to compensation.

The employee's income for the 12 months before the transfer was as follows:

1. November 2015 - 10,000 rubles.
2. December 2015 - 10,000 rubles.
3. January 2016 - 10,000 rubles.
4. February 2016 - 10,000 rubles.
5. March 2016 - 10,000 rubles.
6. April 2016 - 10,000 rubles.
7. May 2016 - 10,000 rubles.
8. June 2016 - 6316 rubles, the onset of vacation from June 20.
9. July 2016 - 0 rubles.
10. August 2016 - 0 rubles.
11. September 2016 - 0 rubles.
12. October 2016 - 0 rubles.

Prizes were not awarded. The total income amounted to 76316 rubles.

Now you need to decide on the billing period:

1. Fully worked months - 7.
2. The average number of days in months worked is 29.3.
3. Days worked in June - 19.
4. The number of days in June is 30.

It turns out: 7 * 29.3 + 19 * 29.3 / 30 \u003d 205.1 + 18.56 \u003d 223.66 days.

Average daily income is defined as the sum of total income divided by the number of days in the billing period:

76316 / 223.66 = 341.21 rubles.

For the entire period of work from 2014 to 2016, a woman was entitled to 69.4 days of legal rest.

Since, according to the Labor Code, the average daily wage is maintained for each vacation day, the compensation will be: 341.21 * 69.4 = 23,679 rubles 97 kopecks.

If the employee was in training, sick leave, business trip, and he was compensated for his expenses, then these amounts cannot be added to income and are not taken into account during the calculation of payments.

Important! If the vacation was not used in full, or the days of additional days off were not used, then the calculation is based on the actual remaining days.

Taxation

What is vacation pay or compensation for them? It is essentially the same income as wages. Is it subject to fees? All employee income is subject to taxation.. ?

AT due to accruals in personal income tax, the employee receives 13% less. These percentages will go to the tax as income tax. The amount of deductions for insurance premiums and the pension fund depends on the amount of compensation. But they are paid from the employer's income and amount to 30% of the employee's compensation accrued.

The Tax Code tells in more detail about the amounts withheld (art. 208,,), 167th Federal Law and 184th Government Decree.

About breaking the law

Now about the sore.

The problem faced by many retiring employees is did not pay compensation.

This is a flagrant violation of labor law. and , on the basis of which the departing employee carried out his activities and is equated to non-payment of wages.

If there is a suspicion that something was not paid extra, pay attention to the certificate 2-NDFL. Upon dismissal, the accountant is obliged to issue this document. The certificate reflects all income, including vacation pay and compensation for them.

In the absence of accruals for unused vacation, you need to do the following:

1. Write a complaint to the employer with a claim for compensation for non-vacation leave.
2. Contact the Labor Inspectorate with a statement about the infringement of your rights. This can be done by sending an electronic application, a paper application or during a personal visit to the inspection. Your appeal will be considered for 30 days. During this period Employees Labor. The inspectors will make a request to your employer, find out the reason for non-payment and inform you in writing about the results of the inspection.
3. Contact the Prosecutor's Office. This appeal can be combined with an appeal to Labor. In the name of the Prosecutor of the place where the employer's organization is registered - i.e. according to legal address, you must write a statement with a complaint about the violation of your rights in accordance with the Labor Code of the Russian Federation by the former director. The prosecutor's office will also conduct an audit within a month.
4. Going to court. Unlike the Labor Inspectorate and the Prosecutor's Office, the court will not be able to hold the employer liable. But it is quite possible to oblige him to pay everything due to the employee. AT statement of claim violated rights are also indicated and a demand is made to recover compensation from the former bosses for unused vacation. After a decision is made on the basis of a writ of execution, the employer's accounts will be frozen and everything that he did not pay in addition will be paid to the employee.

About responsibility

Any delay in payments at the enterprise threatens the management with the need to pay interest.

In the situation with vacation pay and compensation for them, the director is not only obliged to pay the principal amount, but also for each day of delay at least 1/300 of the current refinancing rate.

That is, the employer is financially obliged.

In addition, unscheduled inspections may be organized in relation to its activities. tax service and the Prosecutor's Office.

Despite the fact that vacation was invented to make life easier for the working population, not everyone takes it. We hope that the information provided in the article will help you receive compensation for unused vacations.

Useful video

Is it possible to pay compensation for unused vacation? In what cases is this possible? How to arrange? You will learn about it in the following video:

Upon dismissal, the employer is obliged to pay compensation to the employee for all unused vacations. Moreover, compensation is paid for holidays accumulated for the entire period of work with a particular employer. To determine it, it is important to know the number of vacation days to which the employee was entitled at the time of dismissal, and his average earnings. The procedure for paying compensation is established by paragraph 28 of the Rules on regular and additional holidays, approved by the USSR TNKT dated April 30, 1930 No. 169.

If, shortly before the dismissal, the employee used vacation for the unfinished working year, then upon dismissal, the overpaid vacation pay must be withheld from his salary. In some cases, such withholding is not carried out, for example, during the liquidation of an organization (part 2 of article 137 of the Labor Code of the Russian Federation).

In order to fully understand the settlements with employees, for example, how to correctly calculate and pay salaries, average earnings in different cases, benefits, business trips, etc., we recommend training on the Kontur.Schools online course "". As a result of the training, you will also receive a certificate of advanced training for 136 academic hours.

How to calculate compensation for unused vacation?

If an employee has worked in an organization for 12 months, which includes the vacation itself (Article 121 of the Labor Code of the Russian Federation), then he is entitled to an annual vacation of 28 calendar days. In other words, full compensation is paid to an employee who has worked for the employer for at least 11 months (clause 28 of the Rules on regular and additional holidays). If the retiring employee has not worked for a period that entitles him to full compensation for unused vacation, compensation is paid in proportion to the days of vacation for the months worked (clause 29 of the Rules).

In calculating the terms of service that give the right to compensation upon dismissal, surpluses of less than half a month are excluded from the calculation, and surpluses of more than half a month are rounded up to the nearest full month. Compensation is paid in the amount of average earnings for 2.33 days (28 days / 12 months) for each month of work.

An example of calculating compensation for unused vacation upon dismissal

Pavel Krainov worked with the company from 1 to 18 July 2015. His salary for the time actually worked in July is 15,600 rubles. Can Krainov count on compensation for unused vacation? If yes, how many days and how much?

The annual basic paid leave is 28 calendar days.

1. The employee has worked for more than half a month, respectively, he can count on compensation for unused vacation.
2. More than half a month worked, respectively, compensation should be paid in one month. We determine the days for which compensation should be charged. 28 days / 12 months = 2.33 days.
3. Determine the average daily wage. In general, to determine compensation for unused vacation, the billing period is 12 calendar months. But the specified employee did not work out the billing period, respectively, the average daily earnings are calculated according to the norms of clause 7 of Decree of the Government of the Russian Federation of December 24, 2007 No. 922.
   29.3 / 31 * 18 = 17.01 days,
   where 29.3 is the average monthly number of days, 31 is the number of calendar days in July, 18 is the number of days that fall during Krainov's work period.
4. We determine compensation for unused vacation.
   917.08 * 2.33 \u003d 2,136.86 rubles.

Compensation for unused vacation: personal income tax and contributions

Alexey Bondarenko, lawyer, tax consultant comments: “Regardless of the taxation system used by the organization, withhold personal income tax from compensation for unused vacation associated with dismissal (paragraph 6, clause 3, article 217 of the Tax Code of the Russian Federation). Since compensation is not payment for work performed, the date the employee receives income will not be the last day of the month or the last day of the employee’s work (as with wages, clause 2 of article 223 of the Tax Code of the Russian Federation), but the moment of actual payment of income (clause 1 article 223 of the Tax Code of the Russian Federation). Also, do not forget that from the compensation for unused vacation associated with dismissal, you need to accrue contributions for mandatory pension (social, medical) insurance and insurance against accidents and occupational diseases by contributions in the usual manner» .

Compensation for the unused part of the vacation during work

Sometimes an employer can pay compensation to an employee without waiting for the dismissal. In this case, we will talk about additional paid leave, part of which, at the written request of the employee, can be replaced by monetary compensation while working for a particular employer. However, it is not allowed to replace annual additional paid holidays with monetary compensation for pregnant women and employees under the age of 18, as well as employees employed in work with harmful and (or) dangerous working conditions, for work in appropriate conditions (with the exception of payment of monetary compensation for unused retirement leave).

There are holidays that exceed 28 days, but are not subject to compensation during the period of work, the so-called extended holidays.

How to reflect the accrual for unused vacation in 6-personal income tax

Upon dismissal, the employer is obliged to pay tax on the amount of compensation accrued (Article 217 of the Tax Code of the Russian Federation). Information on the amount of personal income tax shall be entered on an accrual basis in sections 1 and 2 of form 6 of personal income tax. Withheld tax must be transferred to the budget (Article 226 of the Tax Code of the Russian Federation).

For part-time employees, the calculation procedure is the same.

1. Article 122 of the Labor Code of the Russian Federation implies the obligation of all employers to provide every employee with compulsory leave. In the amount of twenty-eight calendar days, with payment in accordance with.
2. Article 126 of the Labor Code Russian Federation, provides for the fact that if the number of days exceeds 28 days, according to the application, compensation in the form of a salary supplement is possible. According to the necessary calculations.
3. As an exception, the following do not have such a right to compensation: underage workers, pregnant women, workers with the status “hard work”, “dangerous conditions”, “harmfulness of work”.
4. Article 291 of the Labor Code. An employment contract concluded for a period of up to two months, the number of days of mandatory leave is calculated based on the calculation of one full working month - one day of vacation.
5. Art. 124 Labor Code of the Russian Federation prohibits not granting leave to employees for two consecutive working years.

Compensation calculation

When calculating compensation, you should be guided by the same rules as when calculating average earnings.

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According to Art. 139 of the Labor Code of the Russian Federation Cash compensation is calculated on the basis of income for the last three months. By the formula: we divide the amount of average earnings for the last three months by 29.6 - this is the average number of calendar days.

The payment deadline must be no later than three working days before the holiday.

Provided that the employee worked a full year, and this is 11 working months. If the employee has worked less than 11 months, the amount of compensation includes days equivalent to the period worked.

In this case, the following nuances should be taken into account when calculating: a working month worked for less than half of working days is not counted, and the month in which most of working days is rounded off as a full working month and is taken into account in compensation calculations.

In order to properly produce, you need to collect the following information:

• Duration of work.
• Calculated average income per month.
• Daily average earnings.

The standard period is one business year. If an employee has worked at the enterprise for less than one year, he can also apply for a vacation.

In practice, it is often practiced to break the vacation into two equal parts. If an employee has worked for less than a year and different reasons(dismissal, through a dismissal order, a written statement) wishes to receive compensation for vacation in exchange for a well-deserved rest. The amount of such compensation will be equivalent to the period worked and accrued vacation days.

The following are excluded from compensation:

• Days spent on .
• Vacation period during pregnancy and childbirth.
• Time off, short-term leave without pay.
• Average pay periods.

All other accruals that were received at the place of work in the form of income are taken into account for the entire period. Sources of income do not matter, with the exception of those previously listed.

• The total amount of payroll.
• Bonuses, surcharges (for, length of service, category, category).
• Overtime, night work.
• Payment for working conditions.
• Harmful and hard work.
• Rewards.

The calculation does not include income such as:

• Sick leave.
• Travel allowances.
• Leave due to pregnancy and childbirth.
• Exemption from work to care for children with disabilities.

How many holidays can I get compensation for?

In the labor legislation of Russia there is no such thing as, moreover, it is forbidden to postpone paid holidays for more than two years in a row.

This is possible only in individual cases, at the request of the employee. The exception is again workers of hazardous production, hard work and under 18 years of age, according to Art. 124 part 4, the provision of annual leave to such employees is mandatory. But also such employees are charged. An employee with this status can take the main vacation, and receive compensation for the additional one.

Example

An employee who works at an enterprise and has a harmful experience. Due to this, he is credited with the main days of vacation and an additional 15 days for the harmfulness of work. According to the previously drawn up schedule for this year vacations of employees of the enterprise, he is entitled to leave in the month of June, which is 43 calendar days (summation of the main + additional).

The employee wishes to receive partial compensation. To do this, in June, he submits to the manager a written application for payment of compensation for the additional leave provided, and the provision of the main one, according to the schedule.

Such compensation will be accrued at least 3 days before the start of the main one. Article 136 RF TC).

In practice, they manage to collect the number of holidays up to, which is not economically profitable.

In cases where more than one vacation has already accumulated, the state inspectorate has the full right to oblige the employer to provide all vacations, in accordance with the written order. When accumulating a large number days of vacation, by agreement of the parties, a decision can be made to dismiss after providing all the days of vacation.

There are types of leave that are not eligible for compensation.:

• Additional leave for Chernobyl victims.
• Types of social leave

In what cases and in what amounts are deductions possible?

Hold Options Money as compensation, it is possible in some cases:

• Provided that the employee had previously taken a vacation. The so-called advance leave.
• If the employer suffered damage, withholding for repayment.
• Personal income tax deductions, since this payment is not included in the list of tax-free amounts.
• Art. 9 of the Labor Code of the Russian Federation refers to mandatory insurance premiums when accruing settlement funds in case of dismissal. It is not subject to these deductions.
• It is possible to deduct and transfer the amount to third parties, after deducting the necessary taxes. According to the application and details provided by the employee.
• Provided that the employee receives monetary compensation for vacation. According to the application and at the same time continues to work in the organization, the employer is obliged to make accruals of UST and PRF contributions.

Part-time work, vacation pay

1. Employees who work part-time are entitled to leave in the same way as in their main job, for a full working year of 28 calendar days.
2. Art. 322 of the Labor Code of the Russian Federation the duration of the vacation is determined by summing up the main and additional vacations.
3. Art. 286 of the Labor Code of the Russian Federation. Part-time employees are provided simultaneously with the main place of work.
4. The procedure for calculating the average monthly earnings is carried out similarly to the main place of work.
5. Provided that the employee at the main place of work combines part-time work calculations are carried out separately.
6. Study leave is not granted.

When calculating vacation pay for a part-time employee, refer to the hours worked, since when working part-time, the working day should not get used to four hours a day. All allowances and bonuses are taken into account. Payment is made on time, as in the main job.

Accordingly, deductions are possible subject to the previously taken advance leave.

In practice, situations are not uncommon when the employer pays compensation to the employee for unused vacation. In what cases is it possible to replace vacation with monetary compensation? What are the features of calculating this type of payment? Does the composition of labor costs include monetary compensation for the part of the vacation that exceeds 28 calendar days? Is UST subject to monetary compensation for unused days holidays? We will try to answer these questions in this article.

Requirements of the Labor Code
in terms of providing leave to employees

Article 122 of the Labor Code of the Russian Federation the obligation of the employer to provide the employee with paid leave for the duration of 28 calendar days is determined ( Art. 115 Labor Code of the Russian Federation). The transfer of vacation to the next year is allowed (by agreement of the parties) only in exceptional cases (in particular, when an employee's departure on vacation in the current year may adversely affect the organization's activities). In this case, the employee must use the days of the postponed vacation no later than 12 months after the end of the working year for which the vacation is granted.

An employer is prohibited from not granting an employee annual paid leave for two consecutive years ( Art. 124 Tax Code of the Russian Federation). At the same time, employees under the age of 18, as well as those who are employed in work with harmful and (or) dangerous working conditions, he is obliged to provide leave annually.

Thus, the legislation establishes strict restrictions for employers regarding the provision of vacations to employees. Nevertheless, in practice, employees often accumulate unused vacations from previous years. In this case, the employer retains the obligation to provide the employee with these holidays or pay him monetary compensation for their unused days.

In what cases is it paid
monetary compensation for unused vacation?

Cash compensation for unused vacation is paid upon dismissal ( Art. 127 Labor Code of the Russian Federation), as well as at the written request of the employee for the part of the vacation exceeding 28 calendar days ( Art. 126 Labor Code of the Russian Federation).

It should also be borne in mind that the replacement of vacation with monetary compensation is not allowed:

pregnant women;

employees under the age of eighteen;

workers engaged in hard work and work with harmful and (or) dangerous working conditions.

Calculation of compensation for unused vacation

The amount of compensation for unused vacation upon dismissal (including for organizations that use the summarized accounting of working hours) is calculated as follows:

The calculation of the average daily (hourly) earnings for the payment of compensation for unused vacation is made according to the rules established by Art. 139 of the Labor Code of the Russian Federation and Regulations on the calculation of the average wage, and is calculated for the last three calendar months(unless another billing period is provided for by the collective agreement) by dividing the amount of actually accrued wages by the estimated number of days (actual hours worked) for the billing period.

When leaving...

The most common case when monetary compensation is issued for unused vacation is the dismissal of an employee. It should be noted that upon dismissal, an employee, at his request, may be granted all unused vacations (both basic and additional), unless his dismissal is associated with guilty actions. The day of dismissal of the employee will be considered the last day of his vacation. In this case, the leave granted to the employee is paid, and, accordingly, compensation for unused leave upon dismissal is not paid.

note: compensation for unused vacation is also paid to employees who leave the organization in the order of transfer (on the basis provided for paragraph 5 of Art. 77 Labor Code of the Russian Federation).

In practice, when determining the number of vacation days to which an employee is entitled while working in an organization, certain difficulties arise. The fact is that the Labor Code of the Russian Federation provides for a specific procedure for calculating the days of unused vacation only for employees who have concluded an employment contract for a period of up to two months - by virtue of Art. 291 of the Labor Code of the Russian Federation compensation is paid to them at the rate of two working days per month of work. For other categories of workers, the mechanism for such a calculation is not prescribed in the Labor Code of the Russian Federation.

The following calculation option is generally accepted. If the employee has worked in the organization for 12 months, which includes the vacation itself ( Art. 121 Labor Code of the Russian Federation), then he is entitled to annual leave of 28 calendar days. In other words, full compensation is paid to an employee who has worked for the employer for 11 months ( clause 28 of the Rules on regular and additional holidays, Further - Rules). If the resigning employee has not completed a period that entitles him to full compensation for unused vacation, compensation is paid in proportion to the days of vacation for the months worked ( clause 29 of the Rules).

When calculating the periods of work that give the right to compensation for leave upon dismissal, surpluses of less than half a month are excluded from the calculation, and surpluses of more than half a month are rounded up to a full month ( clause 35 of the Rules).

Compensation is paid in the amount of average earnings for 2.33 days (28 days / 12 months) for each month of work.

Example 1.

The employee has been with the organization for 10 months. Upon dismissal, he was entitled to compensation for 23.3 days (2.33 days x 10 months). If he had worked for 11 months, he would have received compensation for a full month - 28 calendar days.

Thus, the 11th month of work entitles the employee to receive compensation for 4.7 days (28 - 23.3).

note: the specified norms in the payment of compensation worsen the situation of laid-off workers who have worked for less than 11 months, compared with persons laid off after 11 months of work. However, an attempt to challenge the clause 29 of the Rules in Supreme Court RF was not successful ( Decision of the Armed Forces of the Russian Federation dated 01.12.04 No. GKPI04-1294, Determination of the Armed Forces of the Russian Federation of February 15, 2005 No. KAS05-14), since, in the opinion of the judges, the principle of proportional calculation of compensation is fully consistent with a similar principle contained in Art. 291 of the Labor Code of the Russian Federation. The very fact that paragraph 28 of the Rules provides for the right of an employee who has worked for at least 11 months upon his dismissal to receive full compensation for unused vacation cannot in itself indicate the existence of any contradictions between paragraph 29 of the Rules and the provisions of articles 3, 114 and 127 TK RF.

Some organizations use a different method of calculation, which is reflected in the collective agreement (or regulation on remuneration). Since the working year is divided into approximately 11 months of work and 1 month of vacation, the employee earns a vacation entitlement of 2.55 days per month (28 days / 11 months). From the point of view of mathematics, this method of calculation is more correct and does not worsen the conditions for paying compensation for unused vacation upon dismissal of employees. However, its application will lead to an increase in labor costs, and this will most likely be regarded by the inspection authorities as an underestimation of the tax base for income tax. If there are disagreements with the tax authorities, then you will have to defend your position only in court.

Example 2.

I. I. Ivanova was hired on 02.08.03. In 2004, she was on regular annual leave from 1 to 28 June (28 calendar days). In 2005, I.I. Ivanova was not on vacation. In April 2006, she wrote a letter of resignation to own will(since 24.04.06).

The salary of the employee is 10,000 rubles. per month. In addition, she received:

in January 2006 - a bonus based on the results of work for 2005 in the amount of 3,000 rubles. and a monthly bonus for meeting production targets in December 2005 - 500 rubles;

in February - a bonus for meeting production targets in January 2006 - 600 rubles;

in March - a bonus for meeting production targets in February 2006 - 700 rubles;

in April - a bonus for meeting production targets in March 2006 - 800 rubles. and performance bonus forIquarter of 2006 in the amount of 2,000 rubles.

The duration of the billing period in the organization is 3 months. The billing period has been fully completed.

Recall that upon dismissal of an employee, the calculation of payments due to him (including compensation for unused vacation) is made in a unified form No. T-61 "Note-calculation upon termination (cancellation) of an employment contract with an employee (dismissal)". So, let's give a step-by-step calculation of compensation for unused vacation by I. I. Ivanova.

1) Determine the amount of actually accrued wages for the billing period (January - March 2006). It includes:

official salary of an employee for three months in the amount of 30,000 rubles. (10,000 rubles x 3 months);

bonus based on the results of work for 2005 in the amount of 750 rubles. (3,000 rubles / 12 months x 3 months);

bonuses for meeting performance indicators in the amount of 1,800 rubles, including: 500 rubles. (since it was accrued in the month that falls on the billing period), 600 and 700 rubles.

note: the monthly bonus for meeting production targets in March 2006 (800 rubles), as well as the quarterly bonus based on the results of work for the 1st quarter of 2006 (2,000 rubles) are not taken into account, since they were accrued in a month that goes beyond the calculated period (in April).

Thus, the amount of actually accrued wages in the billing period will be 32,550 rubles. (30,000 + 750 + 1,800).

2) Calculate the average daily earnings for the billing period: (32,550 rubles / 3 months / 29.6 days) = 366.55 rubles.

3) Determine the number of days of vacation that remained unused. Recall that vacation is granted to an employee for the time worked by him, and not a calendar year. In other words, the calculation of the period for the right to receive leave begins from the date when the employee started work, and not from the beginning of the calendar year.

The first working year of I.I. Ivanova ended on 08/01/04, the second - on 08/01/05. During this time, the employee is entitled to 56 days of vacation (28 days x 2 years).

From August 2, 2005 to April 24, 2006, the third working year lasted, including 7 full months and one incomplete (from 02.04.06 to 24.04.06). Moreover, the latter is equivalent to a full working month, as it includes more than 15 calendar days. Thus, for the third year of work in the organization, I.I. Ivanova earned vacation for 8 full months, that is, she had the right to 19 days of paid leave (2.33 days x 8 months = 18.64 days).

The total number of vacation days earned by I. I. Ivanova is 75 (56 + 19). Consequently, upon dismissal, she is entitled to compensation for 47 days (75 - 28).

4) So, let's calculate compensation for unused vacation: 366.55 rubles. x 47 days = 17,227.85 rubles.

note: there are cases when, when calculating compensation, accountants determine the number of days of unused vacation in the last working month in a simplified version. In their opinion, if an employee quits before the 15th, he does not have the right to vacation days for the last month, if after the specified date - accordingly, there is such a right. However, this approach is incorrect and can lead to errors in calculating the compensation payment. Therefore, the calculation should be made according to the established rules: take into account how many days the employee worked in total in the first and last months work in the organization, as well as it is obligatory to calculate the length of service giving the right to annual paid basic leave ( Art. 121 Labor Code of the Russian Federation).

If the employee continues to work in the organization ...

Article 126 of the Labor Code of the Russian Federation allows the employer Attention! It is his right, not his obligation) by agreement with the employee to replace the last part of the vacation, exceeding 28 calendar days, with monetary compensation. At the same time, it is impossible to compensate for the main vacation for the current year with money ( Letter of the Ministry of Finance of the Russian Federation No. 03-05-02-04/13 dated February 8, 2006).

Unfortunately, this article does not clearly define the situation and can be read in two ways. On the one hand, it can be assumed that out of the available number of days of unused vacation (for example, an employee has not been on vacation for 3 years, which means that he has accumulated 84 vacation days), he must take 28 days off in any case, and the remaining 56 days (84 - 28) ask to be replaced with monetary compensation.

On the other hand, Art. 126 Labor Code of the Russian Federation can be regarded as follows. Suppose that an employee is entitled to a basic vacation of 28 days and an additional one of 3 days, which is added to the main one. He didn't receive them for two years. As a result, 56 days of the main vacation must be provided to him as days of rest, and only the accumulated additional 6 days can be compensated in cash.

This duality will persist until amendments are made to the Labor Code of the Russian Federation. Accordingly, the explanations given in Letter of the Ministry of Labor dated April 25, 2002 No. 966-10, according to which, due to the uncertainty of the legislative wording, two options for the payment of monetary compensation are possible. The choice is made by agreement of the parties. That is, the employer and the employee must themselves agree on how many days of unused vacations in previous years to replace with monetary compensation.

Calculation of taxes from compensation for unused vacation

Personal Income Tax

When paying compensation for unused vacation, the employer is obliged to calculate and pay personal income tax on this amount ( paragraph 3 of Art. 217 Tax Code of the Russian Federation). Since compensation for unused leave upon dismissal must be paid to the employee on the day of dismissal ( Art. 140 of the Labor Code of the Russian Federation), then the tax withheld from it must be transferred to the budget when it is actually paid ( paragraph 4 of Art. 226 Tax Code of the Russian Federation), in particular, no later than the day the bank actually receives cash to pay compensation or on the day the amount is transferred to the employee’s account or, on his behalf, to the accounts of third parties ( paragraph 6 of Art. 226 Tax Code of the Russian Federation).

Monetary compensation in return for a vacation exceeding 28 calendar days, paid at the request of the employee and not related to dismissal, as a rule, is paid together with the salary for the corresponding month ( paragraph 3 of Art. 226 Tax Code of the Russian Federation).

UST, contributions to the Pension Fund and compulsory social insurance
from industrial accidents

Subparagraph 2 of paragraph 1 of Art. 238 Tax Code of the Russian Federation determined that compensation for unused vacation paid to a resigning employee is not subject to UST ( letters of the Ministry of Finance of the Russian Federation dated September 17, 2003 No. 04-04-04 / 103, UMNS for Moscow dated March 29, 2004 No. 28-11 / 21211), as well as contributions to compulsory pension insurance ( paragraph 2 of Art. 10 of Federal Law No. 167-FZ dated December 15, 2001) and contributions to compulsory social insurance against industrial accidents and occupational diseases ( Clause 1 of the List of payments for which insurance premiums are not charged to the FSS of the Russian Federation, Further - Scroll,P. 3 accrual rules, accounting and expenditure of funds for the implementation of compulsory social insurance against industrial accidents and occupational diseases).

For compensations paid at the written request of employees who continue to work in the organization, other taxation rules are established. According to the Ministry of Finance, such payments are subject to UST on a general basis ( letters of the Ministry of Finance of the Russian Federation dated 08.02.06 No. 03-05-02-04 / 13,dated 16.01.06 No. 03-03-04/1/24,Federal Tax Service for Moscow dated 15.08.05 No. 21-11/57993). In addition, the accountant should not forget about contributions to the Social Insurance Fund.

note: Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 14, 2006 No. 106 clarified that Clause 3 of Article 236 of the Tax Code of the Russian Federation does not give the taxpayer the right to choose which tax (unified social tax or income tax) to reduce the tax base for the tax by the amount of the corresponding payments. In other words, if the taxpayer has the right to attribute compensation payments for unused vacation to expenses that reduce the taxable base for income tax, then he must accrue UST on them.

Example 3

In accordance with Art. 119 of the Labor Code of the Russian Federation, the organization provides an employee with an irregular working day with an annual additional paid leave, the duration of which is determined by the collective agreement and is 3 calendar days.

At the request of the employee (upon agreement with the administration), a part of the unused vacation exceeding 28 calendar days is replaced by monetary compensation .

Due to the fact that the specified compensation payment is taken into account for income tax purposes on the basis of paragraph 8 of Art. 255 Tax Code of the Russian Federation, it must be subject to UST.

note: there are cases when the local tax authorities insist on the taxation of UST compensation for unused vacation, not related to dismissal, if this payment was not taken into account as an expense for income tax purposes. It should be noted that the courts this issue take the side of the taxpayers (see, for example, Decree of the FAS UO of December 21, 2005 No. Ф09-5669 / 05-С2, TsO dated 12/15/05 No. A64-1991 / 05-10, SZO dated 28.01.05 No. А66-6613/2004).

Let's take another look at this issue. But we note right away that it is quite risky and will inevitably lead to disputes with the tax authorities. The essence of this approach is as follows: pp. 2 p. 1 art. 238 Tax Code of the Russian Federation from UST taxation all types of compensation payments established by the legislation of the Russian Federation, legislative acts of the constituent entities of the Russian Federation, decisions of representative bodies of local self-government related to the implementation individual job duties within the limits established in accordance with the legislation of the Russian Federation. Replacement of a part of the annual paid leave with compensation is provided Art. 126 Labor Code of the Russian Federation. The concept of compensation is not established in the tax legislation, therefore it should be used in the sense in which it is used in the Labor Code of the Russian Federation ( paragraph 1 of Art. 11 Tax Code of the Russian Federation). Therefore, all requirements are met Art. 238 Tax Code of the Russian Federation, and it is not necessary to accrue UST on the amount of compensation paid on written applications of employees (regardless of whether such payments are taken into account for income tax purposes).

Since monetary compensation in return for the part of the vacation exceeding 28 calendar days is provided Art. 126 Labor Code of the Russian Federation, and the Tax Code does not establish other rules, then by virtue of paragraph 1 of Art. 11 Tax Code of the Russian Federation the norms of the Labor Code of the Russian Federation are subject to application. Thus, in this case, all the requirements established by Art. 238 Tax Code of the Russian Federation. Therefore, it is not necessary to accrue UST for the amount of compensation paid upon a written application of employees who continue to work in the organization (regardless of whether such payments are taken into account or not taken into account for income tax purposes). There is also a positive arbitration practice in the considered case (see, for example, decreesFAS SZO dated 04.02.05 No. A26-8327 / 04-21, dated 07.11.05No. А05-7210/05-33). A taxpayer who has made a decision to replace part of the vacation exceeding 28 calendar days with monetary compensation is entitled to take into account the specified payment in labor costs in accordance with paragraph 8 of Art. 255 Tax Code of the Russian Federation. At the same time, there is no need to accrue UST for this payment.

Let's say a few words about contributions for compulsory insurance against industrial accidents: they are not charged on the amount of compensation for unused vacation ( item 1 of the List).

income tax

When calculating corporate income tax, the amount of monetary compensation for unused basic leave not related to dismissal, paid in accordance with labor legislation, is accepted as a reduction in the tax base. The basis is paragraph 8 of Art. 255 Tax Code of the Russian Federation(cm., letters of the Ministry of Finance of the Russian Federationdated 16.01.06 No. 03-03-04/1/24, Federal Tax Service for Moscow dated 16.08.05 No. 20-08/58249). Wherein, if the employer and employees have reached an agreement to pay monetary compensation for all days of unused vacations, then the unused vacations are combined, including for those periods when the Labor Code of the Russian Federation was in force, which did not allow such compensation, except when the employee was dismissed.

With regard to monetary compensation in return for additionally provided under a collective vacation agreement (that is, on the employer's own initiative), then such expenses are not taken into account for tax purposes. This point of view is presented in particular in Letter of the Ministry of Finance of the Russian Federation of September 18, 2005 No. 03-03-04/1/284.

It should be noted that not all experts agree with it. The fact is that the Ministry of Finance, referring to paragraph 24 of Art. 270 Tax Code of the Russian Federation, equated the cost of compensation to the cost of vacation pay. But in the Tax Code of the Russian Federation these concepts are separated: the amount of compensation for unused vacation is included in the cost of wages on the basis of paragraph 8 of Art. 255 Tax Code of the Russian Federation, and holiday pay - according to paragraph 7 of Art. 255 Tax Code of the Russian Federation. At least therefore between them it is impossible to put an equal sign. At the same time in Art. 270 Tax Code of the Russian Federation it refers only to the cost of additional vacation pay (and not compensation for unused vacation).

From the foregoing, we can conclude that the Tax Code of the Russian Federation does not prohibit taking into account the costs of paying compensation in return for additional holidays when calculating income tax (regardless of whether such a holiday is provided for by labor legislation or collective and (or) employment contracts). It is clear that such a point of view is unlikely to be accepted by the regulatory authorities, so you will most likely have to defend your case in court.

There are categories of workers who, in accordance with the Labor Code and other federal laws extended basic leave is granted, but they are not considered within the scope of this article.

Regulation on the features of the procedure for calculating the average wage, approved. Decree of the Government of the Russian Federation of April 11, 2003 No. 213.

A collective agreement may establish a different settlement period for payment of compensation for unused vacation (for example, 6 months, a year), if this does not worsen the position of employees (Article 139 of the Labor Code of the Russian Federation).

Clause 28 of the Rules on regular and additional holidays, approved. People's Commissariat of Labor of the USSR 04/30/30 (valid to the extent that does not contradict the Labor Code of the Russian Federation).

Decree of the State Statistics Committee of the Russian Federation dated 05.01.04 No. 1.

If the employee quit, for example, on April 10, 2006, then she would not be entitled to compensation for the last part-time working month, since she was at the workplace for less than 15 calendar days.