Legislation
If we consider the issue of payment of daily allowances from a legal point of view, then first of all we should turn to Article 168 of the Labor Code of the Russian Federation, adopted by the State Duma on December 21, 2001.
In accordance with this article, the head of the company who sent the employee on a business trip is obliged to reimburse all costs associated with the business trip, including daily allowances. At the same time, the procedure and amount of reimbursement of expenses incurred in connection with a business trip are regulated by a collective agreement or local regulations.
At the same time, in accordance with paragraph 10 of the Regulations “On the specifics of sending employees on business trips”, approved by Decree of the Government of the Russian Federation No. 749 dated October 13, 2008, when sending an employee on a business trip, the employer must issue a cash advance, which will allow paying the expenses for travel and rental accommodation, and other additional expenses related to living outside the place of permanent registration. In this context, we are talking about the payment of daily allowances.
The said Regulations provide for only one exception, which allows the heads of enterprises and organizations not to pay the indicated amounts. Thus, according to paragraph 5 of clause 11 of the Regulations, in the case of a business trip to an area from where the employee can return to his permanent place of residence every day, based on transport links and taking into account the nature of the work performed, the employee does not receive the advance funds discussed above.
Travel expenses were not paid
Secondly, a business trip is a trip by an employee by order of the employer for a certain period of time to fulfill a work assignment outside the place of permanent work, Article 166 of the Labor Code of the Russian Federation.
The procedure and amount of reimbursement of expenses related to business trips to employees of other employers (commercial organizations) are determined by a collective agreement or local regulatory act, unless otherwise established by this Code, other federal laws and other regulatory legal acts of the Russian Federation.
If you have a commercial organization, then before signing the TD, Article 68 of the Labor Code of the Russian Federation, you should have been familiarized with the Regulations on Business Travel, which determines the procedure for reimbursement of expenses for a business trip.
Thirdly , before deciding to send an employee on a business trip, the employer must find out whether the employee belongs to the categories of persons who, in accordance with the law, are prohibited from being sent on a business trip.
The Labor Code of the Russian Federation establishes this prohibition in relation to pregnant women, as well as workers under the age of 18 (with the exception of certain categories). This follows from Part 1 of Art. 259, art. 268 Labor Code of the Russian Federation, para. 1 clause 14 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated January 28, 2014 N 1. Such employees cannot be sent on business trips even with their consent. Violation of this prohibition may entail administrative liability under Part 1 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, and a repeated similar offense - under Part 2 of Art. 5.27 Code of Administrative Offenses of the Russian Federation.
Restrictions have been established for certain categories of employees when sent on business trips.
In particular, the employer does not have the right to send on a business trip:
1. A woman who has a child under three years of age, if there is no written consent for a business trip or if this is prohibited for her in accordance with a medical certificate issued in the manner prescribed by law (Part 2 of Article 259 of the Labor Code of the Russian Federation).
This guarantee is also provided to the following employees (parts 2, 3 of article 259, article 264 of the Labor Code of the Russian Federation, paragraph 2 of paragraph 14 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated January 28, 2014 N 1):
- mothers and fathers raising children under the age of five without a spouse;
- guardians of children of the specified age;
- other persons raising children under five years of age without a mother;
- employees with disabled children;
- employees caring for sick members of their families in accordance with a medical report.
2. A foreign citizen temporarily staying in the Russian Federation or temporarily residing on the territory of the Russian Federation, or a highly qualified specialist under certain conditions.
3. A disabled person, if this contradicts the IPRA (IPR). This conclusion follows from an analysis of the totality of the provisions of Part 1 of Art. 23 of the Federal Law of November 24, 1995 N 181-FZ, Art. 224 of the Labor Code of the Russian Federation, taking into account the provisions of paragraph. 1 clause 9 of the Procedure (approved by Order of the Ministry of Health and Social Development of Russia dated 04.08.2008 N 379n).
4. An employee who has entered into an apprenticeship agreement with the employer, during the period of its validity, if the trip is not related to the apprenticeship (Part 3 of Article 203 of the Labor Code of the Russian Federation).
5. An employee registered as a candidate for an elected body during the election period (clause 2 of Article 41 of Federal Law No. 67-FZ of June 12, 2002).
An employer can send some employees on a business trip only if they have their written consent and they have no medical contraindications for a business trip . These categories of workers include ( parts 2 , 3 of article 259 , article 264 of the Labor Code of the Russian Federation, paragraph 2 of paragraph 14 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated January 28, 2014 N 1):
- women with children under three years of age;
- mothers, fathers raising children under five years of age without a spouse, guardians of children of the specified age, other persons raising children under five years of age without a mother (see who is recognized as a person raising children without a mother) ;
— employees with disabled children;
- workers caring for a sick family member in accordance with a medical report.
Such consent should be requested in writing, drawing up a document in any form.
If an employee, who can be sent on a business trip only with his written consent and in the absence of medical contraindications, refuses to travel, the employer will not have the right to force him to be sent on a business trip.
Read our Algorithm:
https://taktaktak.ru/blog/posts/2014/09/perechen-kategoriy-rabotnikov-kotor/ Who can refuse business trips and overtime work? Labor law
What does the employer care about?
It is not worth violating the requirements of labor legislation regarding the payment of daily allowances, as this can lead to administrative and financial liability.
So, according to paragraph 1 of Article 5.27. Code of the Russian Federation on Administrative Offences, adopted by the State Duma on December 20, 2001, violation of labor legislation is fraught with a warning or a fine imposed on an official of the organization in the amount of 1-5 thousand rubles. The same measure is provided for individual entrepreneurs without forming a legal entity. As for legal entities, in their case the fine varies from 30,000 to 50,000 rubles.
If we are talking about a repeated violation, then in this case the official faces a fine of 10,000 to 20,000 rubles or disqualification for a period of 1 to 3 years. For individual entrepreneurs, the amount of the administrative fine will rise to 10,000-20,000 rubles, for legal entities - 50,000-70,000 rubles.
Sometimes an enterprise pays per diem even when an employee is sent on a business trip to a place from which it is possible to return every day. If this happens, then during the next inspection the employer may be required to charge insurance premiums and personal income tax on the amount of daily allowance.
Even if meals are included, you must pay a daily allowance
— 08/10/2018, 20:22 The employee is sent on a business trip. The HR specialist is tasked with handling organizational issues related to the trip.
When booking the hotel, it turned out that the price included three meals a day. In this regard, a natural question arose whether it is necessary to pay an employee a daily allowance when paying for food. Let's figure out what labor legislation and the Tax Code say about this.
During a business trip, an employee finds himself outside his place of residence and is forced to bear the costs of staying in a place unfamiliar to him. In addition to compensation for travel expenses to the place of business trip and housing costs, the employer must pay the employee daily allowance (Art.
168 Labor Code of the Russian Federation). Per diem means the rate of reimbursement of an employee’s expenses for staying outside his place of permanent residence. All employers in the commercial sector of the economy can set the daily allowance amount independently (for more information, see “”). Having decided on their size, the daily allowance must be approved.
This can be done (Part 4 of Article 168 of the Labor Code of the Russian Federation):
- by order of the manager (for more details, see “”);
- local act (for more details, see "";
Also, the amount of daily allowance can be specified in the employment (collective) agreement. Daily allowance must be paid for all days spent on a business trip, including weekends and non-working holidays that fall during the business trip and days spent en route (for more details, see.
"", ""). Per diem is a compensation payment aimed at reimbursing the entire total of an employee’s expenses on a business trip, and not just the cost of food. Therefore, daily allowances must be paid even when paying for meals, including by the receiving party. The fact that this conclusion is the only correct one is confirmed by the courts (decisions of the Supreme Arbitration Court of the Russian Federation dated January 26, 2005 No. 16141/04, the Supreme Court of the Russian Federation dated March 4, 2005 No. GKPI05-147).
Let us remind you that the employee’s daily allowance must be paid before the trip.
The legislation does not establish a specific period; it remains at the discretion of the employer (for more details, see “”). In any case, it is better not to neglect the rule on the payment of daily allowances. The fact is that untimely payment of daily allowances is considered an offense, and for this an organization (individual entrepreneur) can be held administratively and financially liable (for more details, see below).
""). Daily allowances up to 700 rubles/day for business trips within the Russian Federation and 2500 rubles/day for business trips abroad are not subject to personal income tax and insurance contributions (para.
10 clause 3 art. 217, paragraph 2 of Art. 422 of the Tax Code of the Russian Federation).
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Daily allowance limit for business trips in 2021
There are no government regulations regulating the amount of payments upon departure on behalf of management.
The head of the enterprise has the right to independently establish the procedure for receiving and calculating daily allowance for a business trip. When determining the amount of payments, the company is guided by the Tax Code, which regulates the maximum allowable amount of daily allowance for calculating personal income tax and insurance premiums.
Important! The Tax Code (paragraph 12, paragraph 3, article 217) defines the maximum allowable amount of daily allowance that is not subject to personal income tax - this is 700 rubles for business trips in Russia, and 2,500 rubles for trips abroad. When an organization allocates a larger amount, the employer is obliged to withhold personal income tax from the employee.
According to the Decree of the Government of the Russian Federation No. 729 of October 2, 2002, the minimum amount of daily allowance for both private and budget organizations should not be less than 100 rubles.
Article 217 of the Tax Code of the Russian Federation “Income not subject to taxation (exempt from taxation)”
Decree of the Government of the Russian Federation dated October 2, 2002 No. 729 “On the amount of reimbursement of expenses associated with business trips on the territory of the Russian Federation to employees who have entered into an employment contract to work in federal government bodies, employees of state extra-budgetary funds of the Russian Federation, federal government institutions”
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