How is compensation paid for unused vacation? Compensation for unused vacation. Is experience important?

Termination of an employment contract when certain conditions means the payment of severance pay and other compensation amounts subject to tax and insurance contributions.

Termination of an employment contract

Termination labor relations involves the performance of certain management responsibilities towards the dismissed employee. The cases that trigger dismissal are varied. In some situations, the initiative to terminate the contract comes from the employee; in other circumstances, dismissal occurs due to the fault of the employee or taking into account cumulative external factors.

Upon completion of work, employees must be paid the amounts earned. A calculation of a compensatory nature is also required. The amount of payments depends on the conditions of dismissal, the concluded employment contract and the employer’s internal regulations on remuneration.

Grounds for dismissal

The dismissal procedure is preceded by the occurrence of certain circumstances. Among them are the following: the desire of the parties to continue the employment relationship, the nature of the concluded agreement, and the presence of other circumstances. Dismissal occurs for the following reasons:

Employee initiative. As a rule, dismissal under this article is made with the wording “by at will", coming from the employee.
At the initiative of management. Happens by various reasons. Some of them are committed taking into account the degree of guilt of the employee: non-compliance by the employee labor discipline, inadequacy for the position held, gross violation labor duties, disobedience to work regulations. The termination of the working relationship also occurs due to the refusal of management to renew the contract after the expiration of its term, including the probationary period.
Dismissal of senior management employees (directors, chief accountants) upon change of ownership.
Termination of labor relations as a result of liquidation of the enterprise, if necessary, reduction of staff.
Dismissal is the transfer of an employee to another place of duty.
Refusal of employees to further perform their duties under changed working conditions.

Procedure for terminating an employment contract

To terminate an employment contract, the initiating party must confirm its intentions in writing. The employee draws up an application addressed to management; the employer is obliged to send the dismissed employee advance notice.

When leaving at your own request, a corresponding statement is written at least 2 weeks before the designated date. During this time, the employee has the right to withdraw the application and continue working.

Dismissal may occur earlier than the agreed period by agreement of the parties. If the employer is found to have violated labor laws (delayed wages), the employee’s request to terminate the employment relationship must be satisfied immediately, without a 2-week work period.

In the presence of probationary period the resignation letter is submitted 3 days before the expiration of the probationary period.

The employer also has the right to terminate the contract with the employee during the probationary period by notifying 3 days before the end of the validity period. In other cases, it is somewhat more difficult to fire an unwanted employee.

If the reason for termination of the contract is non-compliance with discipline and internal regulations, then this fact will need to be proven in writing. Before dismissal due to redundancy, the employee will need to be offered another alternative position, if available.

In almost all cases of termination of an employment relationship, it is necessary to make a full settlement with the employee.

Payments to employees upon dismissal

There are several types of benefits that dismissed employees may qualify for. Among them are the following:

Calculation for time worked. The balance of wages representing the employer's debt is paid. The transfer must be made on the day of dismissal.
Compensation for unused vacation. All non-vacations due to the employee are taken into account. If there is leave used in advance, the amount previously paid to him is withheld from the employee. If the settlement funds are not sufficient for this, the dismissed employee repays the resulting debt only on a voluntary basis. If refused, the employer has the right to go to court for damages.
Severance pay upon dismissal. Paid if termination of the contract occurred at the initiative of the employer. Compensation payments in the amount of 2 weeks, 2 or 3 months of earnings are made in case of reduction or liquidation.

Tax-free payments upon termination of an employment contract

When dismissing an employee, the corresponding amount of personal income tax must be withheld from the settlement amount. The rule affects both payments attributable to wages and compensation accruals. But in some cases, amounts received are not subject to tax.

If an employee is paid severance pay upon termination of employment, then no tax is withheld from the amount exceeding 3 months' earnings. For workers in the Far North, personal income tax is not withheld from amounts paid equal to 6 times their earnings. In this case, compensation for unused vacation is not taken into account. From this amount of accruals, personal income tax is withheld in full.

Types of payments to employees upon dismissal

Grounds for dismissal	Payroll calculation	Compensation for unused vacation	Severance pay
At your own request	Paid	Paid	According to the internal regulations on remuneration
By abbreviation	Paid	Paid	Within 1 average salary
Upon liquidation	Paid	Paid	Within 2-3 average earnings

1. Hello. I worked as an accountant in a private construction company for 6 years. Due to the change of ownership, the new management decided to dismiss the accounting department. Are their actions legal?

A change in the owner of an organization serves only as a basis for terminating employment relations with the management team, including the chief accountant. Regarding other accounting employees, a change of founders is not a reason for dismissal.

For employees who previously entered into a fixed-term contract, upon expiration of its validity, the following payments are due: wages, compensation for unused vacation, other payments, if they are provided for by the internal regulations on remuneration. All accrued amounts are subject to taxation, with the exception of severance pay exceeding 3 times the average salary.

3. Hello. What to do in the following situation? An employee who has worked for the organization for only 6 months resigns. Previously, by agreement with the employer, he was granted full leave for 28 calendar days. How to calculate severance payments?

If the vacation at the time of termination of the employment contract was used in advance, it is necessary to make a calculation and retain the previously issued funds. The employee can return the difference in the accrued amount on a voluntary basis. In this case, personal income tax also needs to be recalculated.

In practice, it is not uncommon for an employer to pay compensation to an employee for unused vacation. In what cases is vacation replacement allowed? monetary compensation? What are the features of calculating this type of payment? Is monetary compensation for part of the vacation exceeding 28 calendar days included in labor costs? Is monetary compensation for unused days vacation? We will try to answer these questions in this article.

Labor Code requirements
regarding the provision of leaves to employees

Article 122 of the Labor Code of the Russian Federation the employer's obligation to annually provide the employee with paid leave lasting 28 calendar days ( Art. 115 Labor Code of the Russian Federation). Transfer of vacation to the next year is allowed (by agreement of the parties) only in exceptional cases(in particular, when an employee going on vacation this year may have a negative impact on the organization’s activities). In this case, the employee must use the days of the transferred vacation no later than 12 months after the end of the working year for which the vacation was granted.

An employer is prohibited from not providing an employee with 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 employed in jobs with harmful and (or) dangerous working conditions, are obliged to provide leave annually.

Thus, the legislation establishes strict restrictions for employers in terms of providing leaves to employees. However, in practice, workers often accumulate unused vacation time from previous years. In this case, the employer retains the obligation to provide the employee with these vacations or pay him monetary compensation for their unused days.

In what cases is it paid?
cash 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 part of the vacation exceeding 28 calendar days ( Art. 126 Labor Code of the Russian Federation).

It should also be taken into account that replacing vacation with monetary compensation is not allowed:

pregnant women;

employees under eighteen years of age;

workers employed at 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 summarized working time recording) is calculated as follows:

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

Upon dismissal...

The most common case when monetary compensation is given for unused vacation is the dismissal of an employee. Let us note that upon dismissal, an employee, upon his application, may be granted all unused vacations (both main and additional), except if 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 vacation granted to the employee is paid, and, accordingly, compensation for unused vacation upon dismissal is not paid.

note: compensation for unused vacation is also paid to employees who leave the organization by transfer (on the basis provided for clause 5 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 days of unused vacation only for employees who have entered into an employment contract for a period of up to two months, due to Art. 291 Labor Code of the Russian Federation They are paid compensation at the rate of two working days per month of work. For other categories of workers, the mechanism for such calculation is not specified in the Labor Code of the Russian Federation.

The following calculation option is generally accepted. If the employee has worked for the organization for 12 months, which includes the vacation itself ( Art. 121 Labor Code of the Russian Federation), then he is entitled annual leave lasting 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 leaves, Further - Rules). If the resigning employee has not worked 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 terms of work that give the right to compensation for leave upon dismissal, surpluses amounting to less than half a month are excluded from the calculation, and surpluses amounting to 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 worked for the organization for 10 months. Upon dismissal, he is 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 gives the employee the right to receive compensation for 4.7 days (28 - 23.3).

note: the specified standards for the payment of compensation worsen the situation of dismissed employees who have worked for less than 11 months, compared to persons dismissed after 11 months of work. However, an attempt to challenge the provisions clause 29 of the Rules V Supreme Court RF was not successful ( Decision of the Supreme Court of the Russian Federation dated December 1, 2004 No. GKPI04-1294, Determination of the Supreme Court of the Russian Federation dated February 15, 2005 No. KAS05-14), since, according to the judges, the principle of proportional calculation of compensation is fully consistent with the similar principle contained in Art. 291 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 dismissal to receive full compensation for unused vacation cannot in itself indicate the presence of any contradictions between paragraph 29 of the Rules and the provisions of Articles 3, 114 and 127 Labor Code of the Russian Federation.

Some organizations use a different method of calculation, which is reflected in the collective agreement (or wage regulations). Since the working year is divided into approximately 11 months of work and 1 month of vacation, each month the employee earns the right to vacation in the amount of 2.55 days (28 days / 11 months). From a mathematical point of view, this method of calculation is more correct and does not worsen the terms of payment of compensation for unused vacation upon dismissal of employees. However, its use will lead to an increase in labor costs, and this will most likely be regarded by the inspection authorities as an understatement of the tax base for income tax. If disagreements arise with the tax authorities, you will only have to defend your position in court.

Example 2.

I. I. Ivanova started working on 08/02/03. In 2004, she was on regular annual leave from June 1 to June 28 (28 calendar days). In 2005, I. I. Ivanova was not on vacation. In April 2006, she wrote a letter of resignation of her own free will (from 04/24/06).

The employee's salary is 10,000 rubles. per month. In addition, she was awarded:

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

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

in April - bonus for meeting production targets in March 2006 - 800 rubles. and a performance bonus forIquarter 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 worked out.

Let us remind you that upon dismissal of an employee, the calculation of payments due to him (including compensation for unused vacation) is carried out in a unified Form No. T-61 “Note-calculation upon termination (termination) of an employment contract with an employee (dismissal)”. So, we present a step-by-step calculation of compensation for the unused vacation of I. I. Ivanova.

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

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

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

bonuses for meeting production targets in the amount of 1,800 rubles, including: 500 rubles. (since it was accrued in the month that falls within 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 first quarter of 2006 (2,000 rubles) are not taken into account, since they were accrued in a month 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 vacation days that remain unused. Let us remind you that an employee is granted leave for the time he has worked, and not for the calendar year. In other words, the calculation of the period for the right to receive leave begins from the date when the employee began 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 04/02/06 to 04/24/06). Moreover, the latter is equivalent to a full working month, since it includes more than 15 calendar days. Thus, I. I. Ivanova, in her third year of work in the organization, earned 8 full months of vacation, that is, she had the right to 19 days of paid vacation (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 rub.

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, he has such a right. However, this approach is incorrect and can lead to errors when calculating compensation payments. Therefore, the calculation should be made according to established rules: take into account how many days in total the employee worked in the first and last months of work in the organization, and also be sure to calculate the length of service that gives the right to annual paid basic leave ( Art. 121 Labor Code of the Russian Federation).

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

Article 126 of the Labor Code of the Russian Federation allows the employer ( Attention! It is his right, and not his obligation), by agreement with the employee, to replace the latter’s 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 dated 02/08/06 No. 03-05-02-04/13).

Unfortunately, this article does not clearly define the situation and can be read in two ways. On the one hand, we can assume 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 he has accumulated 84 days of vacation), he must take 28 days off in any case, and the remaining 56 days (84 - 28) ask to replace it with monetary compensation.

On the other side, Art. 126 Labor Code of the Russian Federation can be assessed as follows. Let's assume that the employee is entitled to a basic vacation of 28 days and an additional vacation of 3 days, which is added to the main one. He didn't receive them for two years. As a result, 56 days of basic vacation must be provided with 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 paying monetary compensation are possible. The choice is made by agreement of the parties. That is, the employer and employee must agree on how many days of unused vacation for previous years should be replaced with monetary compensation.

Calculation of taxes on 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 ( clause 3 art. 217 Tax Code of the Russian Federation). Since compensation for unused vacation upon dismissal must be paid to the employee on the day of dismissal ( Art. 140 Labor Code of the Russian Federation), then the tax withheld from it must be transferred to the budget upon its actual payment ( clause 4 art. 226 Tax Code of the Russian Federation), in particular, not later in the day actual receipt of cash from the bank Money for payment of compensation either on the day of transfer of this amount to the employee’s account or on his behalf to the accounts of third parties ( clause 6 art. 226 Tax Code of the Russian Federation).

Cash compensation in lieu of leave exceeding 28 calendar days, paid at the request of the employee and not related to dismissal, is usually paid along with the salary for the corresponding month ( clause 3 art. 226 Tax Code of the Russian Federation).

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

Subclause 2 of clause 1 of Art. 238 Tax Code of the Russian Federation it has been determined that compensation for unused vacation paid to a resigning employee is not subject to unified social tax ( 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 ( clause 2 art. 10 Federal Law dated December 15, 2001 No. 167-FZ) and contributions to compulsory social insurance against accidents at work and occupational diseases (clause 1 of the List of payments for which insurance premiums are not charged to the Federal Social Insurance Fund of the Russian Federation, Further - Scroll,P. 3 Accrual rules, accounting and expenditure of funds for the implementation of compulsory social insurance against accidents at work and occupational diseases).

For compensation paid upon the written application of employees who continue to work in the organization, different taxation rules are established. According to the Ministry of Finance, such payments are subject to UST taxation on a general basis ( Letters of the Ministry of Finance of the Russian Federation dated 02/08/06 No. 03-05-02-04/13,dated 16.01.06 No. 03-03-04/1/24,Federal Tax Service for Moscow dated August 15, 2005 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 provide the taxpayer with 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 unified tax on them.

Example 3.

In accordance with Art. 119 of the Labor Code of the Russian Federation, the organization provides an employee with irregular working hours with 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), 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 profit tax purposes on the basis clause 8 art. 255 Tax Code of the Russian Federation, it must be subject to UST.

note: there are cases when local tax authorities insist on levying unified social tax on compensation for unused vacation not related to dismissal, if this payment was not taken into account as expenses for profit tax purposes. It should be noted that the courts on this issue take the side of taxpayers (see, for example, resolution of the Federal Antimonopoly Service of Ukraine dated December 21, 2005 No. Ф09-5669/05-С2, CO dated December 15, 2005 No. A64-1991/05-10, SZO dated January 28, 2005 No. A66-6613/2004).

Let us give one more opinion on this issue. But let us immediately note that it is quite risky and will inevitably lead to disputes with the tax authorities. The essence of this approach is as follows: based on pp. 2 p. 1 art. 238 Tax Code of the Russian Federation from UST taxation all types established by law are exempt Russian Federation, legislative acts of the constituent entities of the Russian Federation, decisions of representative bodies local government compensation payments related to the implementation an individual labor duties within the limits established in accordance with the legislation of the Russian Federation. Replacement of part of annual paid leave with compensation is provided Art. 126 Labor Code of the Russian Federation. The concept of compensation is not established in tax legislation, therefore it should be used in the meaning in which it is used in the Labor Code of the Russian Federation ( clause 1 art. 11 Tax Code of the Russian Federation). Therefore, all requirements established Art. 238 Tax Code of the Russian Federation, and there is no need to accrue UST for the amount of compensation paid based on written statements from employees (regardless of whether such payments are taken into account for profit tax purposes).

Since monetary compensation in return for 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 clause 1 art. 11 Tax Code of the Russian Federation The norms of the Labor Code of the Russian Federation are subject to application. Thus, in in this case all requirements established are met Art. 238 Tax Code of the Russian Federation. Therefore, it is not necessary to accrue UST for the amount of compensation paid upon the 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 profit tax purposes). There is also positive arbitration practice in the case considered (see, for example, resolutionsFAS NWO dated 02/04/05 No. A26-8327/04-21, from 07.11.05No. A05-7210/05-33). A taxpayer who has decided to replace part of the vacation exceeding 28 calendar days with monetary compensation has the right to take this payment into account in labor costs in accordance with clause 8 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 accidents at work: they are not calculated 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 taken into account to reduce the tax base. The basis is clause 8 art. 255 Tax Code of the Russian Federation(cm., letters from the Russian Ministry of Financedated 16.01.06 No. 03-03-04/1/24, Federal Tax Service for Moscow dated August 16, 2005 No. 20-08/58249). Wherein, if the employer and employees have reached an agreement to pay monetary compensation for all days of unused vacation, 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 upon dismissal of an employee.

Regarding monetary compensation in return for additionally provided according to the 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 dated 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 clause 24 art. 270 Tax Code of the Russian Federation, equated the costs of paying compensation to the costs of paying for vacations. But in Tax Code In the Russian Federation, these concepts are separated: the amount of compensation for unused vacation is included in labor costs on the basis clause 8 art. 255 Tax Code of the Russian Federation, and vacation pay - according to clause 7 art. 255 Tax Code of the Russian Federation. At least for this reason it is impossible to put an equal sign between them. At the same time in Art. 270 Tax Code of the Russian Federation only the costs of paying for additional vacations are mentioned (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, when calculating income tax, the costs of paying compensation in return for additional vacations (regardless of whether such vacation is provided for by labor legislation or collective and (or) employment agreements). It is clear that such a point of view is unlikely to be accepted by 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 provided, but they are not considered within the scope of this article.

Regulations on the specifics of the procedure for calculating average wages, approved. Decree of the Government of the Russian Federation dated 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 situation of employees (Article 139 of the Labor Code of the Russian Federation).

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

Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 No. 1.

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

People often refer to severance pay as all the money they receive when they quit. The exciting situation of changing jobs is always fraught with a bunch of questions from dismissed employees. Therefore, in this article I will answer in as much detail as possible. important question –What will the employee be paid upon dismissal? How are payments calculated, what are the consequences for the employer of non-payment or delay in this case, and other related issues.

Severance pay upon dismissal is stipulated by Article 178 of the Labor Code of the Russian Federation, which is called “Severance pay” and refers to Chapter 27 “Guarantees and compensation to employees related to termination of an employment contract.”

○ Severance pay upon dismissal.

Severance pay is a sum of money paid in a lump sum upon dismissal for certain reasons.

If something unpleasant happens for the employees - liquidation of the organization or mass reduction number (staff) of employees, in this case the employee is required to pay severance pay in the amount of average monthly earnings. In addition, he will retain his average monthly salary for the period of employment, but no longer than two months from the date of dismissal (including severance pay).

EXAMPLE! If an employee of Vasilisa the Beautiful wage the average monthly salary is 18,200 rubles, and employee Zmey Gorynych’s salary is 22,660 rubles; both will receive exactly these amounts as severance pay upon layoff.

However, if an enterprise or organization has a collective agreement stipulating that when dismissing employees during liquidation or reduction of staff, everyone is paid a severance pay of 30,000 rubles, then this is exactly the amount that will be paid to everyone.

IMPORTANT! IN labor law Along with the Labor Code, other acts apply equally if they improve the situation of the employee.

If a laid-off employee applied to the employment service body, but was not employed within two weeks (about which he was given a corresponding decision from this body), then, by providing his work record book and this decision on his old job, he can count on average monthly earnings during the third month from the date of dismissal. But this case is exceptional.

Severance pay in the amount of two weeks' average earnings paid upon termination of the employment contract in the cases below.

If the employee was given medical report, which does not allow him to work under the conditions under which he was once hired for this job, while the employer offered work in a different position, but the employee refused (or the employer does not have a suitable vacancy). In this case, the employee is dismissed under clause 8 of part one of Article 77 of the Labor Code of the Russian Federation.
The situation could turn out worse - and the employee, due to some serious reasons with health The medical-sanitary examination establishes a “non-working” disability group. It turns out that he is completely incapable of labor activity and must be dismissed immediately on the day the conclusion is issued due to circumstances beyond the control of the parties, paragraph 5 of part one of Article 83 of the Labor Code of the Russian Federation.
The employee was called for an emergency military service(the law in this case equates the alternative civil service to this service).
EXAMPLE!If employee Ivan Zhukov received a summons and he honestly joined the army, and before that his average monthly earnings were 22,500, then upon settlement he will be paid severance pay in the amount of 11,250. In addition, he will be paid wages worked and compensation for unused vacation . There will be something to spend the holidays on!
The practice of labor relations is quite extensive, and our courts observe procedural deadlines and can take quite a long time to make their final decision. Thus, a situation may arise that you are hired to replace a person who filed a lawsuit for illegal dismissal and reinstatement at his former workplace in the same status.
And this citizen was restored by the court to his former workplace. Unfortunately for you, as someone who works in this place today, the employer is forced to fire you (grounds - paragraph 2 of part one of Article 83 Labor Code RF). Looking weak In this case, compensation for your suffering will be the payment of severance pay.
It may happen that the employer is forced to move to another area for a number of reasons. If an employee does not agree to be transferred to work in another area together with the employer and refuses to move, then, in accordance with paragraph 9 of part one of Article 77 of the Labor Code of the Russian Federation, he resigns and is paid severance pay in the amount of two weeks’ average earnings.

○ Payments upon dismissal by agreement of the parties.

Payments upon dismissal by agreement of the parties are not required by law. However, payments and amounts of severance payments may be stipulated on the basis of an employment or collective agreement. In addition, payment may be stipulated in the agreement on termination of the employment contract itself.

EXAMPLE! Having written a letter of resignation by agreement of the parties from Field of Miracles LLC, Cat Basilio stipulated (and this was included in writing in the agreement) that his severance pay would be 5,000 rubles. This amount was added to his salary and compensation for unused vacation.

○ Deadlines for payment of severance pay upon dismissal.

The deadline for payment of severance pay upon dismissal is the employee’s last working day, when he will be given:

Wages.
Compensation for unused vacation.
Severance pay, if stipulated by law or other act (collective agreement, employment contract, by agreement of the parties).

IMPORTANT! Money amounts, which must be paid to an employee dismissed due to the liquidation of an organization or due to a reduction in numbers or staff, for the second and, in exceptional cases, for the third month of the employment period, are not considered severance pay! Accordingly, their payment terms are determined locally.

Upon dismissal, the employer is obliged to pay the employee compensation for all unused vacations. Moreover, compensation is paid for vacations accumulated over 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 payment of compensation is established by paragraph 28 of the Rules on regular and additional leaves, approved by the People's Commissariat of Labor of the USSR dated 04/30/30 No. 169.

If, shortly before dismissal, an employee used vacation for an unfulfilled working year, then upon dismissal, overpaid vacation pay must be withheld from his salary. In some cases, such deduction is not made, for example, during the liquidation of an organization (Part 2 of Article 137 of the Labor Code of the Russian Federation).

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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 leaves). If the resigning employee has not worked the 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 upon dismissal, surpluses amounting to less than half a month are excluded from the calculation, and surpluses amounting to more than half a month are rounded up to a 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 July 1 to July 18, 2015. His salary for the time actually worked in July is 15,600 rubles. Can Krainov count on compensation for unused vacation? If yes, then for how many days and in what amount?

The annual basic paid leave is 28 calendar days.

The employee has worked more than half the month, and therefore can count on compensation for unused vacation.
More than half a month has been worked, so compensation should be paid for one month. We determine the days for which compensation should be calculated. 28 days / 12 months = 2.33 days.
Determine the average daily earnings. IN general case, to determine compensation for unused vacation, the calculation period is 12 calendar months. But the specified employee did not work the pay period; accordingly, 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.
We determine compensation for unused vacation.
917.08 * 2.33 = 2,136.86 rubles.

Compensation for unused vacation: personal income tax and contributions

Commented by Alexey Bondarenko, lawyer, tax consultant: “Regardless of the taxation system that the organization uses, 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 completed work duties, 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 in the case of remuneration, 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 compensation for unused vacation associated with dismissal, you need to accrue contributions to compulsory pension (social, medical) insurance and insurance against accidents and occupational diseases in contributions in the usual manner» .

Compensation for unused part of vacation while working

Sometimes an employer can pay compensation to an employee without waiting for 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 specific employer. However, it is not allowed to replace annual additional paid leave with monetary compensation for pregnant women and employees under the age of 18, as well as employees engaged in work with harmful and (or) dangerous working conditions, for work in appropriate conditions (except for the payment of monetary compensation for unused leave upon dismissal).

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

How to reflect the accrual for unused vacation in 6-NDFL

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

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

Each employee has the right to annual paid leave of 28 calendar days. This right arises after six months of working for one employer.
Vacation is provided according to a schedule that must be approved no later than December 15 current year next year. The right to use does not depend on the calendar year, but on the working year, that is, from the moment the employee is hired. This is stated in the letter of Rostrud dated December 18, 2012 No. 1519-6-1.

If he was hired on November 15, 2017, then the right to use full vacation arises six months later, that is, from May 15, 2018. In this case, the employee can “walk” for 28 calendar days, but he will receive “Vacation Pay” in proportion to the time worked.
He will have the right to full vacation and full “vacation pay” only after 11 months of work, that is, from October 14, 2018.

In addition to the main vacation, there is also an additional one. It is provided to certain categories of workers. For example:

workers of the Far North and territories that have a similar status;
employees working in harmful conditions labor;
workers with hazardous working conditions;
other categories of workers listed in Art. 116 Labor Code of the Russian Federation.

Both main and additional leave are paid. The amount of vacation pay depends on the employee’s average earnings for Last year. According to Art. 139 of the Labor Code of the Russian Federation, to calculate the average salary, all labor payments to an employee for the last calendar year are taken into account.

An employee has the right to receive compensation for unused vacation only in two cases:

upon dismissal for all unused vacation days;
without dismissal for vacation days exceeding 28 calendar days. This is stated in Art. 127 Labor Code of the Russian Federation.

The amount of compensation for unused vacation depends on the number of days and the employee’s average earnings for the last year. The average salary of an employee for the year is calculated by dividing the actual salary for the year by 12 months and by a constant number of 29.3 - this is the average number of days in a month.

For example, an employee has 6 days of unused vacation in 2018. Over the last year, his total salary was 420,000 rubles.
The average daily salary of this employee is (420,000 / 12) / 29.3 = 1,194.5 rubles per day
For 6 days of unused vacation, he will receive 1,194.5 * 6 = 7,167.2 rubles.

Is it possible to receive compensation for vacation and continue to work? An employee can only receive compensation for unused additional vacation. To do this, he must write an application addressed to the employer or a person authorized by the employer to sign such applications.

The application is written in free form. If your company has developed an application form, you must use it. The application must contain the following information:

On the right top corner You must provide information about the employer and the applicant:
- the position of the employer's representative who has the right to sign such statements, and his full name. For example: “To the General Director of Petarda LLC, K.P. Silyanov”;<\li>
- position and full name of the applicant. For example: “From the programmer M.E. Uvarov”;
Next, in the center you need to write the word “Statement”;
Then the “body” of the statement. Here you need to indicate the main text, that is, a request to replace unused vacation days with monetary compensation. Also here you need to indicate the reason why the additional leave arose, its duration and period. You also need to indicate Art. 126 of the Labor Code of the Russian Federation, on the basis of which such a right arises for the employee;
Then the date of application and the signature of the employee himself.

Based on the application, the personnel officer issues an order and sends an order for payment of compensation to the accounting department. The employee must read the order and put his signature on it.

Payment of compensation is made within 10 days after acceptance of the application or on the day of payment of the next salary.

Replacing a vacation that does not exceed 28 calendar days with monetary compensation is prohibited by law. But some employers accommodate employees halfway and pay them such compensation for those vacations that employees “did not take off” in previous years.
Since this is prohibited by law, at the very first inspection by the labor inspectorate, the employer, as entity, a fine will be imposed in accordance with Part 1 of Art. 5. 27 Code of Administrative Offenses of the Russian Federation in the amount of 30 thousand rubles, and for general director, as an official - the fine will be from 1,000 to 5,000 rubles.

The decision to pay compensation is made by the employer. This is his right, not his obligation. This is stated in Art. 126 of the Labor Code of the Russian Federation, as well as in the letter of Rostrud dated March 1, 2007 No. 473-6-0.