Labor Code the amount of the advance. Salary advance: when to pay, how to calculate and how much. Is it obligatory to pay an advance on salary

There are no cardinal changes at the beginning of 2018, in terms of calculating the size of the deposit, so it is determined according to the previous scheme in 2017: in proportion to the employee's actually worked time.

Payment of monthly earnings in advance, permitted by Art. 136 of the Labor Code of the Russian Federation and consists in transferring money for the worked half of the month to the employee. The rest is paid after the second half of the month. Thus, the legislator insists on the calculation of the employer with the subordinate at least twice a month.

How much is the advance payment of the salary according to the Labor Code of the Russian Federation 2018?

The Labor Code, in this regard, does not establish any specific interest rates. He only indicates that the employee must necessarily deduct his salary at least twice a month. And the amount of the advance payment on wages under the Labor Code of the Russian Federation in 2018 is determined based on the specific situation.

The advance payment, in this case, will be 50% of the total amount of income, but taking into account the tax deduction 13% / 2 (two halves of the month) \u003d 7.5% (for one half). So, the percentage of the advance payment is 42.5% (50% - 7.5%).

But a certain amount of interest is not prescribed either in the employment contract or in the local acts of the organization where the person works, only the frequency of payments for work is established.

Payment of an advance on wages under the new rules in 2018

In 2017, the Federal Law introduced amendments to labor legislation: the procedure and terms for calculating advance payments to working citizens were adjusted. Now an employee of the company must receive remuneration for work, at least twice per month, while every 15 working day must be the day of payment of the advance, but it can be set earlier, at the discretion of the employer.

By the way, what are deductions from wages according to the Labor Code of the Russian Federation is described.

How much is the advance on salary paid in 2018?

The burning question, how much interest is the advance from the salary - worries all workers in 2018. It is calculated in proportion to the period worked. If the entire income for 30 days is 100,000 rubles, then by the 15th day the advance will be equal to 50,000 rubles, but this does not include income tax (13%).

With personal income tax, the amount will be calculated as follows:

• 100 000 – 13 % = 87 000;
• 87 000/ 2 = 43 500.

An advance payment for 15 days will be 43,500 rubles.

New terms for advance payment and salary in 2018

New terms have indeed appeared. This is every 15 days. The manager can set the day for the payment of half of the salary on any day of the month, the main thing is that the interval between the first part of it and the second does not exceed 15 days.

If the day of advance payments is a day off, then the money must be issued on the first working day before them. So, the framework for remuneration of employees is established by the legislator, and the specific number is chosen by the employer.

Do I need to pay personal income tax from an advance on wages?

Personal income tax is levied on the total amount earned by an employee for a month. It is set at 13% and has not changed so far. From an advance, income tax is not withheld, but the amount of personal income tax reflected, since advance payments are formed taking into account the final amount of the person's income, which remains after deducting tax 13 percent.

Application for advance payment against wages - sample

Description of the sample application:

• typewritten or handwritten text on a white sheet;
• on the right, starting from the center of the sheet - the addressee (includes the name of the place of work, full name of the chief, address) and the applicant (name, address);
• below - in the center: the word "STATEMENT";
• the content part from the indentation, it can be formulated in any way, it is only important that it is clear what the applicant wants and in what size;
• it is recommended to indicate the reasons for the appeal, as they contribute to convincing the manager of the need to establish an advance payment procedure in relation to the employee;
• at the end, a signature with a decryption, date is affixed.

Order for the payment of an advance from wages - sample

All organizational issues at the enterprise are resolved in the form of orders issued by the person who heads it. So, in order to establish an advance payment procedure for work for subordinates, the employer creates an order about this.

It is drawn up according to the rules for the preparation of local acts established in the organization, taking into account the generally accepted rules of office work and drawing up documents. He must also go through the approval procedure with certain authorized employees of the company.

Thus, remuneration in the form of advance payments has many nuances and requires a good regulatory awareness of the management staff in this matter.

Hello! In this article, we will tell you about the advance and in what order it should be paid.

Today you will learn:

1. How the advance is calculated and in what time frame it is issued;
2. What are the penalties for non-payment of the advance;
3. Can the employee refuse the advance himself.

Any work activity in an organization or in an enterprise involves the payment of monetary compensation. And each employer undertakes to pay the employees the due money twice a month. But in order to prevent violations of the law, you need to know what percentage of the salary is the advance and how to calculate it correctly. We will talk about this topic today.

What is advance payment

The Labor Code does not provide an official interpretation of the term "advance". He simply clarifies that it is the employer's responsibility to pay employees 2 times every 30 days. The dates when you need to transfer money are also not fixed anywhere, they are regulated by the organization itself.

If we formulate the definition of an advance, it sounds like this:

Prepaid expense – the first half of the salary to be paid to the employee.

When to pay

If we talk about the timing of payment, then the explanations of Rostrud are in effect, which indicates that the desired dates for payment are 15 or 16. But funds can be paid on the 24th and 25th, there is no violation in this.

At the same time, when there is a labor dispute, the court will consider such payment to be a violation, since if a person takes a job on the 1st of the month, he will receive an advance payment later than 2 weeks later.

Salary advance share

Often employers make a formal advance payment. Let's say they set it purely symbolic: 2,000 rubles for everyone who works for him, regardless of their positions and salaries. This is a clear violation of the Labor Code, as the first part of the salary should be proportional to the time that the person actually worked.

Rostrud explains that the advance should not be lower than the employee's wage rate for the time he has worked. It means that minimum amount, represents the monthly salary, which is adjusted for the actual hours worked for the first two weeks of the month.

For simplicity of calculations, the advance can be made equal to half the salary. This is not prohibited by law.

Calculation methods

There are 2 calculation methods. The accountant can calculate the amount of the advance without taking into account holidays and weekends or taking them into account.

When using the first option, the formula is applied:

AB \u003d (additional payments + salary) * 50%.

The list of surcharges includes:

• For work performed in excess of the standard;
• Behind ;
• For fulfilling the duties of an employee who was absent;
• For combining several positions.

This formula does not include payments, since the incentive is usually given by summing up the results of the work for the month. If, when performing the calculation, you take into account only working days, then add up the salary with allowances and divide the result by the number of working days in a month actually worked for 15 days.

How to pay newbies

We will consider this situation using an example from real practice. A new person was hired. His first working day is the 22nd. The advance payment in this organization is transferred on the 26th. What should an accountant do?

Based on the explanations of specialists in the buch. accounting, it is not necessary to make an advance payment on the 26th, since in the first 2 weeks of the month the person did not work a single day. So, for the hours worked, you will give a newcomer a salary on the day when you transfer it to all other employees.

How to pay vacationers

In this situation, the accountant can rely on the recommendations of Rostrud. It turns out that if at least one day was worked in the first half of the month, you are obliged to issue an advance. If there are no days worked, then there is nothing to issue.

At the same time, you will not in any way violate the requirements of the law on two-time payment of wages: the law does not require payment for the time that a person has not worked.

How to make a payment to a posted worker

We will also consider this situation on a specific example :

The company's management sent employee D. on a business trip from February 01 to February 15, 2019. Does the accountant have to charge D. an advance?

If an employee is sent on a business trip, his job and average earnings are retained. At the same time, on a business trip, an employee must perform a service assignment, and not a labor function, which is fixed in the contract.

It turns out that in this situation the accountant calculates the average earnings for the days spent on a business trip and pays it on the date of the advance payment to other employees.

Advance payment to an employee on sick leave

Everything here will depend on several factors:

• What salary payment system operates in the company;
• Whether the person has worked in the accounting period for at least one day;
• From the date of opening and closing of sick leave.

Naturally, if there are days worked during the accounting period, the payment must be made.

Making an advance on salary

It all depends on how the payment is made.

There are several options:

• Transfer to a card;
• Cash payment;
• Natures. the form.

So, if we translate to the employee's card or account, then the entries look like this: DEBIT 70 CREDIT 51 "cash for wages", when we transfer the commission of a banking organization - DEBIT 91-2, CREDIT 51 "withholding of commission".

If we issue cash from the cash desk, then we issue either a T-53 statement or a cash register.

Let's clarify right away that the natural form is a non-monetary form of payment. The Labor Code in this case regulates that with this type of issue, the amount cannot be more than 20% of the monthly salary.

There are 5 postings here:

• DEBIT 70 CREDIT 90-1 - proceeds from the transfer of products against salaries;
• DEBIT 90-2 CREDIT 43 (41) - write-off;
• DEBIT 90-3 CREDIT 68 SUB-ACCOUNT "VAT calculations" - making the calculation;
• DEBIT 90-9 CREDIT 99 “profit from the transfer of property against wages”;
• DEBIT 99 CREDIT 90-9 "loss from the transfer of property against salary."

Advance payment against salary: how it is processed

The grounds on which an employee writes an application for an advance payment can be of a different nature: unforeseen family circumstances, making payments on loans, and so on.

An application for issuance must be written only if the term and amount of the advance is different from what is needed at the moment, or the organization does not pay the advance at all.

In this case, the employee just needs to write a statement in which to indicate the required amount and why it is required. If the reason can be confirmed by documents, this is only a plus for the employee. Also, the application is drawn up in 2 copies: it is better to register one with the secretariat and keep it for yourself, and give the other to the head.

The final decision on extradition remains with the head. As practice shows, making a decision takes several hours.

Refusal to pay on application

The leader certainly has the right to refuse, but not in all cases. If the organization pays salaries regularly, the refusal is completely legal. If, however, once - the refusal to pay an advance violates the rights of the employee and he can apply for their protection to the appropriate authorities.

The manager retains the right to change the amount of the advance downward. It depends on the financial position of the organization.

Is it possible to refuse to receive an advance payment

An employee can refuse to receive payment, even write an application for this. The bottom line is that it has no power and is invalid. And the accountant, in turn, is obliged to accrue and transfer the advance payment on time.

Payment of salaries in advance

Consider the case: employee A. wrote a statement in which he asked to be given his salary 3 months in advance for family reasons. The manager entered the position of the employee and ordered the payment to be made. The accountant was faced with the task: how to arrange this in general?

First, do not frame this as a future salary, as the consequences may not be the most pleasant.

Namely:

• You will break the rule of paying salary every fortnight. As soon as this is discovered by the labor inspectorate, both you and the organization will be fined;
• Where is the guarantee that the employee will not work without working the time for which he has already received money? He will resign, he will not give consent to withhold funds, he will have to go to court, which will side with the employee, since it is impossible to collect wages that have been overpaid. There are several cases in the law, but yours does not make this list;
• There are high risks of problems with the Federal Tax Service, in terms of payment terms.

As soon as the money is issued, a statement is taken from the employee, in which it is prescribed that the amount of debt will be withheld from subsequent payments or, if the employee decides to quit, from those payments that are due during the dismissal procedure.

In addition, both in the loan agreement and in the application, indicate how the withholding will occur if, in order to pay off the debt, the salary is not enough:

• You will hold from the next one;
• Or the employee will return it from his own funds.

In this situation, even if you have to go to the courts, it is unlikely that collection will be refused.

There is a simpler design option. Although its use also carries risks. The usual monthly salary is charged and given in an amount that is more than the standard. After a while, an act of detecting a counting error is drawn up. The employee, on the other hand, writes a statement, and in it he indicates that he is not opposed to paying off the debt on excessively received wages at the expense of future payments.

The risk here is that if the employee quit before the debt is fully retained, you will not return this money through the court, because the court will require evidence that the error is arithmetic and not of another kind.

How to pay taxes on an advance

Withholding of any taxes and contributions, as well as personal income tax in advance is carried out.

Reflection in 6-NDFL

We have already said that as of the date of the advance payment, personal income tax is not calculated and is not transferred to the budget. Also, the advance payment amount is not shown separately.

Example. In February 2019, the employee was paid a salary in the amount of 53,219 rubles. Personal income tax will be 6918 rubles. On 03/20/2019, the same employee received an advance in the amount of 24,000 rubles, the final payments were made on 04/03/2019, in the amount of 22,300 rubles. To simplify everything, let's say that the employee did not receive other income.

Eventually:

Sanctions for violation of advance payment

Violations of the terms and procedure of payment are classified as administrative.

Typically, the following fines are applied as a sanction:

• For officials: 1 - 5 thousand rubles. If the prosecution for similar facts has already happened before, then the fine is 10 - 20 thousand;
• For - similar to the previous point;
• For legal entities: 30 - 50 thousand rubles, or 50 - 70, if there was already an attraction earlier.

Employees have the right to claim compensation for late payment.

Conclusion

Any person wants to be paid for their work in a timely manner and in full. But often violation of the simplest rules for calculating and issuing wages and advance payments lead to delayed payments. Today we talked about how to prevent violations and avoid troubles with regulatory authorities.

The salary traditionally consists of two parts, the first of which is called an advance payment. We will tell you about the amount of the advance payment on wages in accordance with the Labor Code of the Russian Federation 2019, as well as how to correctly calculate it, pay and pay tax.

In accordance with the Labor Code of the Russian Federation 2019, employers are required to pay their employees for wages at least every half month on the day established by the internal labor regulations, collective or labor agreement (part 6 of article 136 of the Labor Code of the Russian Federation). That is, the salary must be paid at least 2 times a month.

The first part of the salary - for the first half of the month worked is called in advance.

We will tell you what should be the amount of prepayment for wages according to the Labor Code of the Russian Federation 2019 and how to calculate it.

Attention! The Ministry of Labor has changed the rules for calculating wages. now workers need to be paid more. Experts of the newspaper "UNP" figured out how to calculate the salary now.

Advance payment under the Labor Code of the Russian Federation 2019: how much percent of salary

The Labor Code does not contain norms defining a specific amount of advance payment as a percentage of wages. However, the currently valid Resolution of the USSR Council of Ministers of 05/23/1957 No. 566 "On the procedure for paying wages to workers for the first half of the month" determines that the amount of the deposit for the first half of the month is determined by the agreement between the employer and the trade union when concluding a collective agreement, while minimum size the advance payment must not be lower than the employee's wage rate for the hours worked.

At the same time, the Ministry of Labor, in its letter dated 03.02.2016 No. 14-1 / 10 / B-660, explained that when determining the amount of salary for the first half of the month, the time actually worked by the employee or the work actually performed by him should be taken into account.

It turns out that the employer must pay out a salary at least every half a month, setting it at its discretion - choosing a percentage of the salary or a fixed amount.

Ideally the size of the advance payment for wages according to the Labor Code of the Russian Federation 2019 is half of the employee's monthly earnings, that is, 50 percent.

Regulation on remuneration (fragment)

Calculation of salary advance in 2019

So, as we have already noted, the advance payment is considered for the first half of the month - from the 1st to the 15th, inclusive. Let's give an example of calculation.

An example of calculating a wage advance for a fully worked period

The employee's salary is 40,000 rubles. The labor contract stipulates that the advance is paid out of the time actually worked on the date of the advance payment, but the day of the advance payment is not included in the actually worked time. In April 2019 - 22 working days, in the period from 1st to 14th - 10 working days. Charged for the actual hours worked 18,181.82 rubles. (40,000 rubles / 22 days x 10 days). Personal income tax will be 2364 rubles. (RUB 18 181.82 x 13%). The amount of the advance to be issued on April 15, 2019 - 15 817.82 rubles.

In a letter dated 08/10/17 No. 14-1 / B-725, the Ministry of Labor explained that employees have the right to receive the first part of the salary in proportion to the hours worked. Moreover, the advance payment must be calculated not only from the salary, but taking into account the allowances and surcharges, which do not depend on the results of work for the month.

In a commented letter, the Ministry of Labor expressed the opinion that the first part of the salary should be paid for the hours worked. There is such a rule in the decree of the Council of Ministers of the USSR No. 566, but the document is valid in the part that does not contradict the Labor Code of the Russian Federation (Rostrud letter dated 08.09.2006 No. 1557-6). This means that it is safer to adhere to the opinion of the Ministry of Labor and consider the advance payment for the hours worked.

From Resolution No. 566 it follows that the advance payment must be calculated from the tariff rate, that is, from a fixed salary, excluding compensation, incentive and social payments. The Ministry of Labor has a different opinion. Officials believe that for the first half of the month the employee is entitled to compensation for work at night, as well as for work in harmful conditions, bonuses for combining positions, professional skill, etc. (letter of the Ministry of Labor of Russia dated 04/18/17 No. 11-4 / OOG- 718).

Consider the explanations of officials on payment of personal income tax from advance payment in 2019. How to withhold, including from income in kind and when to transfer. Personal income tax from advance: when to pay \u003e\u003e

Bonuses, extra pay for overtime, work on weekends and holidays do not need to be included in the calculation of the first part of salary. The company will calculate these payments only at the end of the month and will pay to the employee at the final settlement.

An example of calculating an advance on wages with bonuses, surcharges, work on weekends

The company pays out the first part of the salary on the 20th, and the final payment on the 5th. Accountant's salary - 42,000 rubles. In September - 21 working days. The standard time is 168 hours. The salary per day is 2000 rubles. (42,000 rubles: 21 days). On September 15, the employee worked at night, and on the 18th and 19th she replaced the cashier. Cashier's salary - 33 600 rubles. Additional payment for night shifts at a rate of 20% - 400 rubles. (42,000 rubles: 168 hours × 8 hours × 20%). For the work of a cashier at a rate of 25% - 800 rubles. (33,600 rubles: 168 hours × 8 hours × 2 days × 25%). At the end of the month, the company accrued a premium of 5,000 rubles.

First part. From September 1 to September 20, the employee worked for 14 days. Salary - 29,200 rubles. (2,000 rubles × 14 days + 400 rubles + 800 rubles).

The second part of. From 20 to 30 September working days - 7. Salary - 19,000 rubles. (2,000 rubles × 7 days + 5,000 rubles).

The director may be under investigation if the company pays less than the minimum wage for more than two months or does not pay at all (part 2 of article 145.1 of the Criminal Code). The leader can be fined, sent to correctional labor, or even to prison.

It's fast and free!

After 2016, some amendments to the Labor Code regarding the calculation and payment of salaries came into force. They remain valid in 2018.

For non-compliance with the deadlines and delay in the issuance of funds, the employer faces administrative liability in the form of a fine up to 100,000 rubles or even disqualification from activities up to three years.

To avoid trouble with the law, it is important to familiarize yourself with the procedure for salary payments in the current year.

How is it paid taking into account the new requirements?

According to the current Labor Code, wages must be paid to employees at least twice a month.

IN mandatory about earning money management must notify workers in writing.

In such a notice, it is necessary to indicate all the required parts of the payment, including additional surcharges, as well as withholding funds, if any, for example. Such a pay slip is issued only when the basic salary is issued for a month, and not an advance. It is recommended to keep records of the sheets separately.

Calculation of wages, regardless of whether for the first half of the month or for the second, is made for the days actually worked. This amount also includes other allowances for the worked period, with the exception of bonuses that are accrued for the entire month. The allowances that are included in the advance include night shifts, overtime work, combination of job duties, and so on.

Important!Unlike salary with advance payments income tax not deducted.

What is the date of payment under the Labor Code of the Russian Federation?

The legislation establishes the procedure for calculating payments with at least twice a month. However, there is no specific date in the Labor Code.

The document states that the date of issue money the employee must be established in accordance with the internal labor regulations in the organization. The employer is obliged designate a specific date for calculating wages in a collective or labor agreement and convey this to employees under signature.

The contract must indicate the specific day of the month when payments will be made. Specifying the period (from what to what date) of payroll is considered illegal.

Since the calculation of payments is permissible at least twice a month, then the period between the advance and wages should not exceed 15 days.

If the beginning of the working month is counted from the 1st day, then the advance payment for the first half must be paid from the 16th to the 30th day (with a thirty-day working month). In this case, the salary must be calculated by the 15th day of the next month.

Advance payments are made based on payroll -.

What if the date falls on a weekend?

The current Labor Code provides for the hit of the payment day on weekends or non-working holidays.

In the event of a similar situation, payments must be made on the eve of the set day of advance payment or salaryif they got a day off.

If the payment day falls on the second day off, then the salary must be calculated before the first day off (for example, on Friday).

If it is a holiday after the weekend, then the salary must be paid before the weekend.

How to establish the order of issue at the enterprise?

In order for the deadline for the issuance of wages to comply with labor legislation, payments must be calculated at least twice a month.

At the same time, if the date for the advance payment is indicated not on the 15th or 16th, but for example on the 20th, then this will not be considered a violation, since the salary for the first part of the month must be paid before the last day.

Thus, if the advance payment at the enterprise is set on the 20th, the salary in this case will be paid on the 5th of the next month. This date does not exceed the fifteen day payout period and is considered legal.

Before the deadline

The law establishes a minimum period when salaries can be paid, namely at least twice a month. However, a different frequency of payments is allowed. If more frequent payments are specified in the employment or collective agreement, they can be produced in less than half a month.

The frequency of payment of salaries is established by the management of the organization, indicating this in its official documentation. Therefore, the issuance of an advance payment earlier than the stipulated period is permissible and not prohibited by law.

In some cases, it is possible to issue money against wages earlier than the deadline set at the enterprise at the request of the employee — .

Bigger

The current legislation provides for advance payments as salaries for the first half of the worked month. Moreover, its amount should be no less than the tariff rate or salary for this period.

The maximum amount of payments is not indicated in the Labor Code of the Russian Federation, therefore the amount of the advance payment may be more, but not less than the salary for the days worked.

If an excess amount has been paid

It happens that the paid advance on wages was not worked out or was accrued by mistake. In this case, the overpaid the amount can be withheld from the employee.

To do this, the employer needs to require the employee to return the overly charged amount.

It's fast and free!

When do you have to pay the salary for the first half of the month? To what responsibility will the employer be held for non-payment of the advance payment? How to correctly determine the amount of the advance? How is the payment of an advance in the form of 6-NDFL reflected?

Employers are required to pay salaries twice a month, and traditionally the first payment is called an advance. However, in the Labor Code, there is no such thing as an advance: for the first half of the month, you must pay wages. How is the term for payment of such a salary established? What is the procedure for calculating it? Is it possible to pay it in a fixed amount in order to minimize the labor costs of employees of the settlement service? How to fill in sect. 2 forms 6-NDFL, if at the end of the month the employee received only an advance from which personal income tax was not withheld? You will learn about the clarifications on these issues from the Ministry of Labor, Rostrud, the Ministry of Finance and the Federal Tax Service from the presented article.

WHEN SHOULD I PAY THE WAGE FOR THE FIRST HALF OF A MONTH?

First, let us recall the provisions of Part 6 of Art. 136 of the Labor Code of the Russian Federation, according to which wages are paid at least every fortnight. The specific date of payment of wages is established by the internal labor regulations, a collective agreement or an employment contract no later than 15 calendar days from the end of the period for which it was charged. Note that in this edition, this part is effective from October 3, 2016 (clause 1, article 2, article 4 of the Federal Law dated 03.07.2016 No. 272-FZ).

Seemingly insignificant changes required many employers to amend local regulations and employment contracts.

In the Letter dated 09.23.2016 No. 14-1 / OOG-8532, the Ministry of Labor noted that the documents that can establish the days of payment of wages in Art. 136 of the Labor Code of the Russian Federation are listed separated by commas, that is, the legislator emphasizes the equivalence of these documents, in any of which the issue of the days of payment of wages can be resolved.

Note:

If the norms of local regulations or the collective agreement of an organization of a constituent entity of the Russian Federation contradict the current labor legislation, these norms are considered invalid.

In the Information of Rostrud "On the application of Article 2 of the Federal Law of July 3, 2016 No. 272-FZ" On amendments to certain legislative acts Russian Federation in the part concerning wages "(posted on the official website of the department on 20.12.2016), it is indicated that this law does not change the procedure for paying wages. Requirements for limiting the timing of payment of wages to 15 calendar days apply to the payment of accrued wages to the employee at least every half month.

At the same time, taking into account the new edition of Art. 136 of the Labor Code of the Russian Federation, wages must be paid:

• for the first half of the month - on the set day from the 16th to the 30th (31st) day of the current period;
• for the second half of the month - from the 1st to the 15th day of the next month.

Note:

The timing of the implementation of incentive payments to employees, accrued for a month, quarter, year or other period, can be established by a collective agreement, a local regulatory act. So, in the provision on bonuses, it can be provided that the payment of bonuses to employees based on the results of a period defined by the bonus system (for example, a month) is carried out in the month following the reporting month (or a specific period for its payment may be indicated), and the payment of bonuses based on the results of work for year - in March of the next year (or a specific date of its payment can also be indicated) (letters of the Ministry of Labor of the Russian Federation dated 09.23.2016 No. 14-1 / OOG-8532, dated 09.21.2016 No. 14-1 / B-911, dated 09.15. 2016 No. 14-1 / 10 / B-6568).

As for setting the date for the advance payment, according to the explanations of the Ministry of Labor given in the Letter dated 03.02.2016 No. 14-1 / 10 / B-660 "On the amount and timing of payment of wages, including for half a month", the Labor Code establishes a requirement for a maximum the allowable time interval between the payment of parts of wages when regulating the issue of specific terms of its payment at the employer's level.

At the same time, it is unacceptable to establish, instead of a specific day of salary payment, a period during which it can be paid (for example, from the 16th to the 18th day). This conclusion is contained in the Letter of the Ministry of Labor of the Russian Federation dated November 28, 2013 No. 14-2-242.

From the editor:

The question of what terms must be set for the payment of wages was also considered in the article by E. A. Soboleva "Everything about the payment of an advance on wages to an employee of an institution" (No. 8, 2016).

WHAT IS THE RESPONSIBILITY OF AN EMPLOYER FOR FAILURE TO PAY AN ADVANCE?

It is worth noting that the norm of Part 6 of Art. 136 of the Labor Code of the Russian Federation is imperative, therefore, its application does not depend on the will of workers. The fact is that in practice there are still situations when employers pay salaries once a month on the basis of the relevant statements of employees. For such amateur performances in accordance with Part 6 of Art. 5.27 -the RF Code of Administrative Offenses faces a fine:

• for officials (manager and accountant) - in the amount of 10,000 to 20,000 rubles;
• for legal entities - in the amount of 30,000 to 50,000 rubles.

Repeated violation entails the imposition of an administrative fine in a larger amount (for officials - from 20,000 to 30,000 rubles, on legal entities - from 50,000 to 100,000 rubles). This is provided for by Part 7 of Art. 5.27 - RF Code of Administrative Offenses. Instead of a fine, another measure of responsibility is possible - the disqualification of an official for a period of one to three years.

Note:

Parts 6 and 7 are introduced in Art. 5.27 -KoAP RF by Federal Law No. 272-FZ.

Please note that the arbitrators take the side of labor inspections and when imposing fines (decisions of the Judicial District No. 33 of the Orichevsky Judicial District of the Kirov Region dated 02.02.2017 No. 5-78 / 2017, the Judicial District No. 1 of the Nizhny Novgorod District of N. Novgorod, the Nizhny Novgorod Region) of January 31, 2017 No. 5-5 / 2017), and in case of disqualification of managers (decisions of the Supreme Court of the Republic of Tatarstan dated September 28, 2016 No. 4a-1390/2016, the Supreme Court of the Mari El Republic dated February 26, 2016 No. 4A-21/2016, The decision of the Samara Regional Court dated 09/08/2016 No. 21-1880 / 2016).

In practice, another situation is possible - when the advance payment is provided for by local acts, but is made with a delay.

In this case, the employer faces financial liability in accordance with Art. 236 of the Labor Code of the Russian Federation (as amended by Federal Law No. 272-FZ). Unlike an administrative fine, payments are made in favor of employees whose rights have been violated.

In case of violation of the terms of payment of wages, the employer must pay the employee compensation for each day of delay. The amount of such compensation is not less than 1/150 of the effective at this time key rate The Central Bank of the Russian Federation from amounts not paid on time for each day of delay, starting from the next day after the due date for payment to the day of actual settlement, inclusive. The amount of monetary compensation is calculated from the amounts actually not paid on time.

HOW TO CORRECTLY DETERMINE THE SIZE OF THE ADVANCE?

In the Letter dated 05.08.2013 No. 14-4-1702, when considering the issue of determining the size of the employee's salary for the first half of the month, the Ministry of Labor confirmed that the size of the advance payment of the Labor Code of the Russian Federation does not regulate.

At the same time, officials made a reference to Resolution No. 566, according to which the amount of advance payment on account of workers' wages for the first half of the month is determined by an agreement between the administration of the enterprise (organization) and the trade union organization when concluding a collective agreement, but the minimum amount of this advance must not be lower than the wage rate of the worker for the time worked.

What methods of calculating an advance are used in practice? Let's turn to the diagram.

Ways of calculating salaries for the first half of the month:

• In proportion to the hours worked;
• As a percentage of salary;
• In a fixed amount (in rubles);
• Most preferred methods.

The method is not convenient for the employer, as it imposes on him the obligation to pay wages even in those situations when the employee was sick or was on a business trip.

Calculation of salaries in proportion to hours worked. In addition to the formal fulfillment of the requirements of Art. 136 of the Labor Code of the Russian Federation on the payment of wages at least twice a month, when determining the amount of payment of wages for half a month, the employer must take into account the time actually worked by the employee (actually the work performed by him) (Letter of the Ministry of Labor of the Russian Federation of 03.02.2016 No. 14-1 / 10 / B-660). The same conclusion follows from the letters of the Ministry of Labor of the Russian Federation dated 09.21.2016 No. 14-1 / B-911 and Rostrud No. T3 / 5802-6-1 dated 26.09.2016.

A similar position was given in an earlier Letter of the Ministry of Labor of the Russian Federation dated 05.08.2013 No. 14-4-1702. Moreover, it is emphasized that these norms apply to all employees of the organization and do not have specific application to certain categories of employees.

In addition to the fact that this method of calculating the advance is recommended by the regulatory authorities as the main one, it is also convenient for the employer: when paying salaries for the first half of the month in proportion to the time actually worked by the employee in this period, in practice, the risk of overpayment and non-withholding of personal income tax is excluded in the final calculation.

Example 1

The institution has a deadline for payment of wages for the first half of the month on the 20th day. The internal labor regulations of the organization provide that the advance is paid to the employee minus the calculated personal income tax.

Let's calculate the amount of advance payment for March 2017 for employees, taking into account the hours they actually worked.

* The institution has a five-day working week. In March 2017

22 working days.

** The employee was on annual paid leave.

IN fixed time (03/18/2017, since 03/20/2017 fell on a day off) it will be necessary to pay employees an advance in the following amount:

The regulatory authorities have repeatedly indicated that since advance payments of personal income tax is not held. In the example considered, a decrease in the amount of the advance by the amount of tax does not provide transfer of personal income tax to the budget.

Calculation of salaries for the first half of the month as a percentage of salary. According to the explanations of the Ministry of Health and Social Development given in the Letter dated February 25, 2009 No. 22-2-709, with the advance method of calculating wages for each half of the month, wages should be accrued approximately in equal amounts (excluding bonus payments).

What percentage should you set? If you literally follow the recommendations given in the letter, this is 50%. However, historically, the advance payment is set at 40% of the salary. There is a completely logical explanation for this: in the final calculation, personal income tax will be withheld from the salary of employees, and if 50% of the salary is paid in advance, then the salary for the second half of the month will be much less.

Example 2

The employee has a salary of 30,000 rubles. Suppose that the employee is not entitled to personal income tax deductions, therefore, the tax amount is 3,900 rubles. Let's compare what the payments will be if the advance payment is 40 and 50%.

As can be seen from the example, when the advance payment is set at 50%, upon the final settlement, the employee will receive a salary lower than in the first half of the month, which does not meet the requirements for approximately equal parts of wages.

At the same time, it should be noted that, in contrast to the advance payment established in a fixed amount, it is not necessary to pay the advance payment as a percentage of the salary in cases where the employee did not work (was on sick leave, on a business trip, on vacation, etc.). ).

On the payment of an advance in a fixed amount. The issue of calculating a fixed amount for the advance payment of salaries to an employee of a public sector organization was considered by the Ministry of Finance in a Letter dated March 29, 2016 No. 02-07-05 / 17670. Officials of the department indicated that such an issue is within the competence of the Ministry of Labor, and not the Ministry of Finance. At the same time, the financiers recalled that according to Art. 91 of the Labor Code of the Russian Federation, payroll is calculated for the actual hours worked, determined within the framework of accounting organized by the employer. At the same time, the procedure for payment of wages (terms, size and components) established by local acts of the institution should not contradict the provisions of the Labor Code of the Russian Federation. As for the accounting of actually worked time, Order of the Ministry of Finance of the Russian Federation No. 52n approved the form of the time sheet, on the basis of which a fixed amount is calculated for actually worked time for the first half of the month (including adjusting the fixed amount), and guidelines for its formation.

Taking into account these explanations of the Ministry of Finance, the above-mentioned position of the Ministry of Labor, as well as the risks associated with the payment of an advance in a fixed amount, we consider this method of paying salaries for the first half of the month unacceptable for public sector institutions.

SALARY FOR THE FIRST HALF OF THE MONTH AND PIT.

Recently, both the Ministry of Finance and the Federal Tax Service have received a lot of explanations, according to which it is not necessary to withhold personal income tax from the advance payment (letters of the Federal Tax Service of the Russian Federation dated April 29, 2016 No. BS-4-11 / 7893, dated March 24, 2016 No. BS-4-11 / 4999, Ministry of Finance of the Russian Federation dated 27.10.2015 No. 03-04-07 / 61550).

Recall that by virtue of paragraph 3 of Art. 226 of the Tax Code of the Russian Federation, tax amounts are calculated by tax agents on the date of actual receipt of income, determined in accordance with Art. 223 of the Tax Code of the Russian Federation, on an accrual basis from the beginning tax period in relation to all income (excluding income from equity participation in the activities of the organization) in respect of which the tax rate, established by clause 1 of Art. 224 of the Tax Code of the Russian Federation, assessed to the taxpayer for the given period, offsetting the tax amount withheld in the previous months of the current tax period.

In the Letter of the Ministry of Finance of the Russian Federation dated 01.02.2016 No. 03-04-06 / 4321 it is noted that before the expiration of the month, income in the form of wages cannot be considered received by the taxpayer. Accordingly, the tax cannot be calculated until the end of the month. Consequently, withholding from the taxpayer the amount of tax calculated at the end of the month is made by the tax agent from income only when they are actually paid after the end of the month for which this amount of tax was calculated. A similar opinion is contained in the Definition of the RF Armed Forces dated 05/11/2016 No. 309-KG16-1804.

At the same time, it is necessary to pay attention to the situation when the advance is paid on the last day of the month.

The Ministry of Finance considers (see Letter No. 03-04-06 / 69181 of 23.11.2016) that if tax agent has time to pay the advance before the end of the month, then the personal income tax does not need to be transferred to the budget. This is due to the fact that general rule the institution calculates personal income tax on the last day of the month, and tax must be withheld once - when income is paid after the end of the month.

As for the arbitrators, they are also of the opinion that when an advance is paid on the last day of the month, personal income tax from its amount does not need to be transferred to the budget (Resolution of the AC UO dated February 24, 2016 No. F09-11987 / 15 in case No. A76-10562 / 2015).

HOW IS THE ADVANCE PAYMENT IN THE FORM OF 6-NDFL REFLECTED?

The amount of the advance is not subject to separate reflection in the 6-NDFL form: in section. 2 of this form shows the amount of salary recognized on the last day of the month. As already noted, personal income tax is withheld at the final settlement with employees and is also indicated in one amount.

In practice, a situation is possible when an employee receives an advance payment of 40%, but at the end of the month he will not have income from which personal income tax can be withheld.

This happens if for the second half of the month the employee has not accrued income (for example, he was granted unpaid leave), and in the first half of the month, due to non-working holidays, the employee did not actually work half of the working time and income was received, including for the unworked time. In the future, personal income tax should be withheld from his income at the next salary payment.

In section 2 of the 6-NDFL form, the accountant will reflect the indicators as follows:

• on the last day of the month, the amount of income actually received in the form of an advance will be recognized
• a tax withholding date will be indicated that does not coincide with the date of payment of the final settlement amount for the corresponding month.

Since the tax has not been withheld in a timely manner, the accountant will need to submit an appropriate explanation to the tax office, which will release the institution from responsibility for providing false information.

Example 3

The employee has a salary of 30,000 rubles. In January 2017, he received an advance payment of 12,000 rubles, which was paid on January 17, 2017. On January 18, 2017, the employee fell ill, and presented the certificate of incapacity for work to the employer only on February 6, 2017. Withhold personal income tax from the advance payment for January in the amount of 1,560 rubles. (12,000 rubles x 13%) the accountant was able to only if the advance was paid for February - 17.02.2017.

In the explanatory note to the 6-NDFL form, it is necessary, in particular, to indicate the following.

Section 2 of the 6-NDFL form. The discrepancy in lines 100 (the date is 01/31/2017) and 110 (the date is 02/17/2017). The difference in dates is due to the fact that after receiving the advance payment for January, the employee fell ill. On the due date - 03.02.2017 - personal income tax was not withheld due to the absence of the employee's other income taxed at a rate of 13%. Withholding of personal income tax from the advance was not made by virtue of paragraph 2 of Art. 223, p. 3, 4, Art. 226 of the Tax Code of the Russian Federation, personal income tax for January was withheld from the next payment in cash on February 17, 2017 (advance payment for February 2017).

As for the amount of the advance due to the unworked time, it must be taken into account when paying the advance for the next month.

* * *

Summarize:

• wages for the first half of the month (from the 1st to the 15th day) must be paid on the set day from the 16th to the 30th (31st) day;
• the date of payment is set in any of the documents listed in art. 136 of the Labor Code of the Russian Federation (internal labor regulations, collective or labor agreement), while it is inadmissible, instead of a specific day for payment of wages, to establish a period during which it can be paid;
• when determining the amount of the advance, the controllers recommend taking into account the time actually worked by the employee (the actual work performed by him). At the same time, there is no direct prohibition on establishing an advance as a percentage of salary;
• when paying an advance, it is not necessary to transfer personal income tax to the budget: the calculation, withholding and payment of tax (including for the first half of the month) are carried out during the final calculation.