How is accounting reflected in the deduction of overpaid vacation pay to an employee for unworked vacation days upon dismissal?

When do unearned vacation pay appear?

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

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

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

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

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

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

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

How to calculate the amount of overpaid vacation pay upon dismissal

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

UDNO = (FEFD − DOS) × WHSD,

Where:

UDNO - deduction for days of unused vacation;

DFO - the number of vacation days actually taken;

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

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

Stages of calculating intermediate indicators:

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

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

How to determine average daily earnings

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

How to calculate the number of unworked months

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

This is also important to know:
Termination of an employment contract at the initiative of the employee

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

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

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

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

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

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

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

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

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

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

Example

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

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

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

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

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

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

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

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

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

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

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

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

"Vacation" rights and obligations

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

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

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

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

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

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

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

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

When is the ban on withholding vacation pay applied?

The employer may withhold excess paid vacation pay for vacation received in advance from the resigning employee’s salary, with the exception of a few cases. So, according to para. 4 hours 2 tbsp. 137 of the Labor Code, upon dismissal, deduction for leave provided in advance cannot be made if the employee quits due to:

• refusal to transfer to another job for medical reasons or because the employer does not have such an opportunity;
• reduction of staff at the employer or its liquidation, as well as a change of owner, which led to the dismissal of the company’s management;
• reinstatement by decision of the court (labor inspectorate) of an employee who previously worked in this position;
• conscription for military service (including alternative);
• recognition of an employee as incapacitated for medical reasons;
• the occurrence of force majeure, recognized by the Russian government as such and not allowing further continuation of work;
• death of the individual employer.

If at least one of the above grounds occurs, the employer does not have the right to withhold vacation pay upon dismissal. If an employee quits for other reasons, then the employer has every reason to make a deduction for the vacation used from the employee’s salary upon dismissal . Retention, in accordance with Part 3 of Art. 137 of the Labor Code must be made within a month after the end of the period specified for the employee to repay the debt incurred in the form of overpaid vacation pay.

If we talk about deduction for unused vacation upon dismissal, then it is not made, since vacation pay in this case was not paid to the employee. Moreover, before dismissal, the employee is provided with appropriate compensation, calculated according to the rules on regular and additional leaves, approved by the People's Commissariat of Labor of the USSR on April 30, 1930 No. 169 (hereinafter referred to as the Rules).

According to Art. 28 of the Rules, compensation is paid:

1. For the entire vacation, if the employee worked for 11 or more months or worked for more than 5.5 months and was dismissed due to the liquidation of the employer company, conscription for military service, or recognition as unfit for medical reasons.
2. Proportional to actual time worked.

That is, when calculating compensation for vacation that was not used before dismissal, overpayment of vacation pay is not possible, since they were not previously paid, while compensation payments are calculated based on actual data.

IMPORTANT! It is also not allowed to withhold compensation for unused vacation upon dismissal, for example, in the event of subsequent reinstatement of an employee in his position, since neither the Labor Code nor any other regulatory act contains such grounds for deduction from salary. Moreover, previously paid compensation does not give the employer the right to refuse to grant leave to the reinstated employee.

Is it possible to do without deductions?

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

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

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

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

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

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

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

Personal income tax and insurance premiums

Regardless of the tax 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).

Personal income tax must be transferred to the budget no later than the day following the day the taxpayer’s income is paid. This is provided for in paragraph 6 of Article 226 of the Tax Code of the Russian Federation.

From compensation for unused vacation associated with dismissal, contributions must be calculated for compulsory pension (social, medical) insurance and insurance against accidents and occupational diseases (subparagraph “e”, paragraph 2, part 1, article 9 of the Law of July 24, 2009 No. 212-FZ, paragraph 6, sub-clause 2, clause 1, article 20.2 of the Law of July 24, 1998 No. 125-FZ).

Contributions for compulsory pension (social, medical) insurance must be transferred no later than the 15th day of the next month. And contributions “for injuries” are made on the day established for the payment of wages.

Tax nuances of vacation advance forgiveness

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

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

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

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

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

If the employee does not return the money used in advance

The judicial practice of collecting overpaid vacation pay is very ambiguous. Cases when employers turn to former employees with relevant claims are quite rare. There are several reasons for this:

• usually the amounts of overpayments turn out to be too insignificant to waste time and effort on claiming them;
• the former employee does not always have income that can be recovered;
• a positive court decision is possible if it can be proven that the employee’s unlawful actions led to damage to the entrepreneur (Articles 248, 391 of the Labor Code of the Russian Federation).

At the same time, the argument that there are insufficient funds to recover overpayments of vacation pay usually satisfies tax inspectors and does not entail negative consequences for the company.

Methodology for calculating advance vacation pay

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

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

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

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

Where:

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

KD o - duration of the next vacation;

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

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

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

We clarify information about earnings and calculate unearned vacation pay.

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

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

∑Ond = KDno× SZ.

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

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

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

∑Ond = KD0× SZ0 + KD1× SZ1,

Where:

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

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

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

Calculation of payment for vacation days

When calculating payment for the next paid vacation, the average earnings for 1 day are calculated and multiplied by the number of vacation days.

For this purpose, the period of work at the current place is taken, if it is less than 1 year, or 12 months preceding the month of the start of the vacation, if the period of work exceeds 1 year.

Different organizations may have local regulations regarding the calculation of vacation pay.

It is only important to remember that calculation according to local rules cannot disadvantage the employee. If the organization has adopted the calculation of vacation pay for the last 6 months, then it should be calculated for 12 months and for 6.

If it turns out that when calculating vacation pay for 12 months, the amount turns out to be more, that is what you should pay.

Average daily earnings = all employee payments, including bonuses and other accruals, excluding vacation pay and sick leave, divided by 12 months and divided by 29.3 (average number of days per month as of 2021). The resulting figure will be used when calculating the amount of vacation pay.

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When calculating vacation pay, the following is taken into account:

1. actual wages;
2. bonuses regulated by the employment contract;
3. other compensations and payments determined by the employment contract.

The following are not included in the calculation of vacation pay:

1. payment for lunch, travel and fuel;
2. payment of sick leave;
3. material aid;
4. the vacation pay itself.

Example of calculating advance holiday pay

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

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

Additional terms:

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

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

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

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

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

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

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

When an employee takes rest in advance

There are quite a lot of situations in which an employee needs leave that he has not yet earned. Let's list the main ones:

• the vacation schedule is designed in such a way that some employees take them in advance;
• due to personal circumstances, the specialist is forced to go on vacation earlier than planned;
• the employee decides to quit without working for a full year;
• The company is experiencing staff reductions, and some of the staff are being laid off without being given the opportunity to take their required vacation.

In all these cases, the accountant needs to figure out how much vacation pay is due to dismissed employees, and, if necessary, make a deduction for unworked vacation days upon dismissal. Let's figure out how to do this without neglecting the norms of labor legislation.

Deduction for used vacation upon dismissal

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

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

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

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

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

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

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

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

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

Excess payments

There are several options for deductions from your salary. They may be associated with specific reasons (Article 137 of the Labor Code of the Russian Federation):

• receiving an unearned advance. Such deduction occurs when the employee was provided with an advance payment for the first half of the month. Having received it and not having completed the required period, the employee decided to quit. In this case, the entire unearned amount will be received from him. For example, a specialist was paid an advance for 10 days of work. After working only 8 days, he quits. In 2 days, the previously issued advance payment will be withheld from the employee;
• as a result of causing material damage to production or enterprise. An act is drawn up that is agreed upon with the person from whose salary deductions will be made;
• receiving a travel allowance that exceeds the actual costs of business trip expenses. After drawing up the document, the money will also be returned to the employer;
• by court decision or writ of execution. Typically, such deductions are associated with the payment of alimony. If there are several writs of execution, then deductions can reach 50% of earnings, and in rare cases, 70%;
• as a result of errors in calculations. Typically, such errors are taken to be shortcomings in arithmetic operations performed by the accountant. For example, incorrect initial data were used (wrong tariff), the same amount was not taken into account or, conversely, was taken into account twice.

Labor Code of the Russian Federation N 197-FZ Article 137

Withholding excess vacation pay

Another type of deduction is overpaid vacation pay that was provided in advance when applying for annual leave. Typically, such deductions are made only if the employee submits a resignation letter of his own free will.

Important! According to the Labor Code of the Russian Federation, the right to provide the first half of annual rest arises for an employee after working at the enterprise for 6 months (Article 122 of the Labor Code of the Russian Federation). Other vacations can be provided regardless of the terms of service, including in the form of an advance.

Exceptions in which the employer will not be able to deduct from the required payments upon dismissal

There are exceptions defined by law in which the employer will not be able to deduct from the required payments upon dismissal:

• upon liquidation of an enterprise as a result of its bankruptcy (Article 81, paragraph 1 of the Labor Code of the Russian Federation);
• when staffing levels are reduced (Article 81, paragraph 2 of the Labor Code of the Russian Federation);
• upon refusal to transfer to another job required by medical standards. conclusion, as well as in the absence of the necessary place at the employer;
• upon receipt of a disability that is incompatible with the further performance of one’s duties (Article 83, paragraph 5 of the Labor Code of the Russian Federation);
• when conscripted for military service in the army (Article 83, paragraph 1 of the Labor Code of the Russian Federation);
• when the owner of an enterprise changes (Article 81, paragraph 4 of the Labor Code of the Russian Federation). Typically, previously concluded employment agreements are terminated;
• in the event of emergency circumstances (Article 83, paragraph 7 of the Labor Code of the Russian Federation);
• upon death (Article 83, paragraph 6 of the Labor Code of the Russian Federation);
• when an employee who previously performed the job is reinstated (Article 83, paragraph 2 of the Labor Code of the Russian Federation), as a result of which the employee who currently occupied this position is dismissed.

The method of deducting vacation pay paid in advance from earnings upon dismissal is the simplest from a technical point of view. In such a situation, it is not necessary to obtain permission from the employee himself.

Important! A previously paid advance in the form of vacation pay is not required to be withheld by the employer’s decision.

Video - Deduction for unworked vacation

Holding order

1 step. Calculation of the time for which the resigning employee was entitled to vacation. To do this, the date of his employment is subtracted from the date of dismissal. “Vacation” experience has some features when calculating it. If the number of days in the last month when calculating rest days is more than 15 days, then rounding is done in favor of the employee. Otherwise, this month is not included in the calculations.

Step 2. The number of vacation days that were due to the resigning employee during his or her employment is calculated. The number of months worked should be divided by 12 months and multiplied by 28 cal. days that are set aside as vacation.

Opl = (Du – Dp) / 12 * 28 , where Opl is the planned number of days of annual leave;

Du – date of dismissal;

Dp – date of reception.

Step 3. Next, it is calculated how many days this employee remains in debt to the company. To do this, the total number of days that have already been taken off during the entire period of his working activity within the walls of this company is calculated ( Of ):

D = Of - Opl.

Step 4 It is necessary to determine the average earnings for the period when the vacation was received in advance. Typically, the calculation period is taken to be 12 months before the start of the vacation.

Sd = D * Sz, where D is the number of vacation days taken in advance;

Sz – average earnings.

Step 5 If a salary increase occurred while the employee was on vacation, then this measure should be taken into account when collecting the amount of the debt. To do this, an increasing coefficient is taken into account, but only for those days of “advance” rest that occurred at the time of the increase in pay.

K = Zn / Zs , where Zn is the new payment;

Zs – payment is old.

Ds = D – Dn , where Dn is the number of vacation days that fell during the period after the salary increase;

Ds – the number of vacation days that relates to the period before the salary increase.

Sd = Ds * Sz + Dn * Sz * K.

Order to collect debt from a resigning employee for advance leave received by him

Step 6 An order is issued within the company to collect the debt from the resigning employee for the advance leave he received. The order must indicate the following information:

• Full name and position of the person being dismissed;
• number of days of “advance” leave;
• amount to be deducted;
• source of retention.

The debtor is introduced to this document upon signature. If the dismissed person disagrees regarding reimbursement of the debt, the former employer will be able to demand it only through the court (Article 382 of the Labor Code of the Russian Federation).

Procedure for consideration of labor disputes

In accordance with the Labor Code of the Russian Federation, there is a limit on the amount that can be recovered from the debtor upon dismissal (Article 138). It cannot exceed 20% of the total accrual amount. It should be borne in mind that collections may concern not only “advance” payments for vacation, but also other debts, for example, under writs of execution or compensation for material damage. If the total amount of debt exceeds this barrier, then there are 2 options for solving this problem:

1. Only the amount of the debt is collected, which is 20% of the amount payable.
2. With the consent of the resigning employee, he or she independently deposits the missing amount into the company’s cash desk or transfers it to the company’s current account.

This will end the resigning employee’s problems with resolving the issue of compensation for vacation received in advance.

With the consent of the resigning person, he independently deposits the missing amount into the company’s cash desk or transfers it to the company’s current account

The situation is different with the enterprise. The accountant needs to make adjustments.

• when a resigning employee voluntarily contributes the amount of debt, the amount of 2-personal income tax that was previously taken into account should be adjusted;
• When you forgive a debt, you must take this amount into account when calculating your income tax.

Example

The employee was hired on October 6, 2021. In May 2017, he wrote an application for leave in full (28 cal days). At the same time, the average daily income is 1,100 rubles. Upon dismissal, the amount of 30,000 rubles was accrued. The dismissal date is July 9, 2021.

1 step. Determining the number of days that the dismissed person has left. He received a full leave of 28 cal. days due only for work for a whole year:

Df = 07/09/2017 – 10/06/2016 = 277 days;

DD = 365 – 277 = 88 days.

The total number of months in this case is 3 (88/30). The days of vacation debt are equal to:

D = 3 / 12 * 28 = 7 days.

Step 2. We calculate the amount of debt based on average daily earnings:

SD = 7 * 1100 = 7700 rubles.

Step 3. The amount beyond which cannot be withheld from an employee upon dismissal is determined:

30,000 * 0.2 = 6,000 rubles.

Step 4 The amount to be issued is calculated taking into account the collected income tax:

Amount of 2-NDFL with 30,000 rubles of income upon dismissal:

30000 * 13 / 100 = 3900 rubles.

The amount of 2-personal income tax on vacation pay already received, which can be recovered from the resigning person, will be:

6000 * 13 / 100 = 780 rubles.

The employee must receive a total payment at the time of dismissal:

30000 – 6000 – 3900 + 780 = 20880 rubles.

The amount that was not recovered by the employer must be taken into account when calculating income tax. In this example, its value is 1,700 rubles.

In case of early dismissal and full leave, vacation pay will be withheld

Accounting assignments will look like this:

If the employee agrees to reimburse the remaining amount voluntarily, then this should be taken into account in additional accounting transactions:

If there is an increase in salary while on vacation, then additional calculations must be made. For example, from May 15, 2021, an employee’s salary increased from 28,000 rubles to 32,000 rubles. The vacation took place from 05/03/2017 to 05/31/2017. The number of days before the increase was:

05/14/2017 – 05/03/2017 = 12 days.

Please note that 05/09/2017 is a holiday and is not included in the vacation calculation. Therefore, the number of days until the promotion is 11.

After promotion:

05/31/2017 – 05/15/2017 = 17 days.

The increasing coefficient is calculated as the ratio of the new salary to the old one:

K = 32000 / 28000 = 1.14.

It should only apply to 17 days.

O = 11 * 1100 + 17 * 1100 *1.14 = 33418 rubles.

The amount of the overpaid amount will increase, but you can only get 20% of the income from the dismissed person.

So, after receiving leave as an advance, you should remember that dismissal earlier than the period for which the “advance” leave was issued entails the recovery of excess money paid to him from the dismissed person. Moreover, this amount cannot exceed the 20% barrier of the total amount of accruals upon dismissal established by law.

Results

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

Sources:

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

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

Holding order

Deduction for leave upon dismissal is an exceptional case for which the employee’s consent is not required. But employers still often face difficulties in this regard. In particular, they are concerned with the question of how to retain overpaid funds without breaking the law. There are two ways to legally resolve the issue of the remaining vacation pay:

• Agree with the employee on voluntary retention;
• Collect funds through the court.

If employees are against deduction of funds from their own salaries, even under the pretext that this is provided for by the Labor Code, this issue is resolved in court.

Other situations may arise: for example, the final amount was more than 20% of monthly earnings or more than a month has passed since the dismissal. Then the employer will also have to file a claim against his subordinate.

Once the employer has determined the exact amount of overpaid holiday pay, he will need to issue an appropriate withholding order. The employee must familiarize himself with the document and put his signature on it. If this is provided for by tax legislation, you can also recalculate in reporting documents.