E.A. Shapoval, lawyer, Ph.D. n.

How to calculate and take into account the debt of an employee for unworked vacation days upon dismissal

It happens that an employee quits before the end of the working year, the vacation for which he has already walked off in advance. In most cases, you will be able to deduct vacation pay for unworked days from a retiring employee. And Art. 137 of the Labor Code of the Russian Federation. For this, an order from the head to deduct this amount from the money owed to the employee in the final settlement is sufficient. The employee's consent is not required.

For more information about the possibility of recovering unearned vacation pay in court, read:

But there is a limitation - you can keep no more than 20% of the amount paid to the employee s Art. 138 Labor Code of the Russian Federation. If the employee's debt is greater, then he can repay it voluntarily.

If he does not agree to return the overpaid vacation pay, which cannot be withheld upon dismissal, they can be tried to recover in court e Art. 1102, art. 1109 of the Civil Code of the Russian Federation. Or forgive the employee for the debt and not withhold anything from him.

Calculate the amount owed

STEP 1. Determine the number of unworked vacation days

* If the employee worked less than half of the last working month, then such a month does not need to be taken into account, and if he worked half or more than half of the month, then such a month is rounded up to a full month a p. 35 of the Rules on regular and additional holidays, approved. NCT USSR 30.04.30 No. 169; Art. 423 of the Labor Code of the Russian Federation.

Keep in mind that the number of unworked vacation days that you get as a result can be rounded up to a whole number. It is not prohibited by the TC R F Letter of the Ministry of Health and Social Development of Russia dated December 7, 2005 No. 4334-17. But you can round only in favor of the employee, and since you are deducting, for example, 2.33 is rounded up to 2 calendar days th articles 8, 9 of the Labor Code of the Russian Federation.

STEP 2. Calculate the amount of unearned vacation pay

When calculating, you will need information about the average earnings, based on which you paid the employee vacation. You already have this information.

It is impossible to take the average daily earnings at the time of dismissal when calculating.

If it turned out that the employee has more unworked vacation days than the duration of the last vacation (for example, there are 10 such days, and the last vacation lasted 7 days), then you need to raise information on average earnings also for the previous vacation. And accordingly, part of the employee's debt (for 7 days) is calculated based on the average earnings during the last vacation, and part (for 3 days) - based on the average earnings during the previous vacation.

The situation will become somewhat more complicated if, during the employee’s vacation, the organization as a whole (or structural unit) increased wages. In this case, part of the vacation pay is increased by the multiplying factor from the moment of the increase until the end of the vacation a p. 16 of the Regulations on the peculiarities of the procedure for calculating the average wage, approved. Decree of the Government of the Russian Federation of December 24, 2007 No. 922.

That is, according to the calendar, from the last day of vacation, you need to count the number of unworked vacation days and determine how many days fall in the period after the day of the salary increase, and how many before this date (if there are such days). For example, an employee had a vacation from July 18 to August 7. Unworked days - 12. The salary increase was from August 1. Then the number of unworked vacation days after the increase is 7.

We reflect in tax accounting and reporting

From the amount of vacation pay previously paid to the employee, personal income tax was withheld, this amount was accrued insurance premiums in off-budget funds. The amount of vacation pay itself was included in expenses for income tax purposes. And now it turns out that part of the vacation pay was paid to the employee in excess. What to do with taxes and contributions? How to correct them?

V individual cases listed in the Labor Code of the Russian Federation, Withholding vacation pay for unworked vacation days is prohibited. For example, upon termination employment contract in connection with the conscription of an employee for military service at p. 1 h. 1 art. 83, art. 137 of the Labor Code of the Russian Federation.

Let's say right away that the debt to the employer for unworked vacation days arises not because the vacation was granted to the employee in violation of the law, but because the employee quits before the end of the working year for which he was granted vacation to articles 122, 123 of the Labor Code of the Russian Federation. Consequently, at the time of granting the vacation, the vacation pay was paid legally - there was no error. And no corrections in the period of granting leave in tax accounting do not need to. All adjustments that arise in connection with the deduction now from the employee of the debt for unearned vacation pay or the forgiveness of these amounts to him will be taken into account in the period of dismissal.

We close the debt

First, consider the situation when you either withhold the debt from the employee's salary at the final settlement, or he himself contributes this amount to the organization's cash desk.

Then both the amount of vacation pay that the employee returned and the amount of insurance premiums that were excessively accrued on it must be included in non-operating income in the month the employee was dismissed. This is how the Ministry of Finance of Russia advises to take into account these amounts And Art. 250 of the Tax Code of the Russian Federation; Letter of the Ministry of Finance of Russia dated 03.12.2009 No. 03-03-05/224.

And what about the VAT? After all, when paying vacation pay from an employee, they withheld more tax than necessary. It turns out that now it is necessary to return part of the tax to him? Is this so and how to fill out a certificate of income of an individual in the form No. 2-NDFL Order of the Federal Tax Service of Russia dated November 17, 2010 No. ММВ-7-3/611@ in our situation, we were told in the Russian Ministry of Finance.

From reputable sources

Deputy Head of Income Tax Department individuals Ministry of Finance of Russia

“ If the employer withholds vacation pay for unworked vacation days upon dismissal, then in the register tax accounting according to personal income tax and certificate 2-NDFL, data on the amount of vacation pay paid to the employee and the amount of personal income tax withheld from them in the month of payment of vacation pay do not need to be adjusted. And in the month of dismissal, both in the register and in the 2-NDFL certificate, it is necessary to reflect the amount accrued to the employee in the final settlement, minus part of the vacation pay for unworked vacation days, which the employer withheld. At the same time, the amount of personal income tax from the last payment to the employee must be reduced by the amount of personal income tax from the part of vacation pay for unworked vacation days that the employer withheld.

After the employer has decided to withhold vacation pay X Art. 137 of the Labor Code of the Russian Federation, he must, no later than 10 working days, inform the employee in writing that personal income tax was excessively withheld from the amount of vacation pay for unworked vacation days. And the employee must write an application for the return of excessively withheld and transferred to the budget of the NDF L paragraph 1 of Art. 231 of the Tax Code of the Russian Federation.

But at the same time, it is not necessary to transfer excessively withheld personal income tax to the employee’s account. By this amount, you can simply reduce the employee's personal income tax debt, calculated from the last payment to him.

If any deductions (standard, property) were not provided to the employee, then everything is simple.

But if the employee was provided with any personal income tax deductions, the calculation will be more complicated.

Let's consider a specific example.

Example. Calculation of the amount of debt for unworked vacation days upon dismissal

/ condition / The employee was hired from September 1, 2010. From May 3 to May 31, 2011, he was granted annual paid leave for the first year of work (28 calendar days). During the vacation, he was accrued vacation pay in the amount of 19,047.62 rubles.

The salary for the second half of June 2011, accrued to the employee at the final settlement, is 10,476.19 rubles.

Employee income tax deductions are not provided.

/ solution / The algorithm of actions is this.

STEP 1. We determine the number of unworked calendar days of vacation, taking into account the fact that at the time of dismissal the employee worked in the organization for 10 months:

28 days - (28 days / 12 months x 10 months) = 28 days. - (2.33 days x 10 months) = 4.66 days

STEP 2. We calculate the amount of the employee's debt for unworked vacation days:

RUB 19047.62 / 28 days x 4.66 days = 3170.07 rubles.

Personal income tax on this amount is 412 rubles. (3170.07 rubles x 13%).

That is, the employee's debt without personal income tax is:

RUB 3170.07 - 412 rubles. = 2758.07 rubles.

STEP 3. We determine the maximum amount of deduction from the salary in the final calculation. The amount without personal income tax, on the basis of which it is determined, is:

RUB 10,476.19 - (10,476.19 rubles x 13%) = 9114.19 rubles.

The maximum amount that can be withheld from an employee is:

RUB 9114.19 x 20% = 1822.84 rubles.

It turns out that only this amount can be withheld from the employee's salary, although the employee's debt (2,758.07 rubles) is larger.

The manager decided not to collect the rest of the debt from the employee.

STEP 4. Determine the amount to be paid to the employee:

RUB 10,476.19 - 1822.84 rubles. - (10,476.19 rubles - 1822.84 rubles) x 13% \u003d 7528.35 rubles.

Now let's talk about insurance premiums. Vacation pay was paid to the employee in an amount greater than necessary. Consequently, the contribution base was overstated. But, as we have already said, we will make all adjustments in the current period - in the period of dismissal I Letter of the Ministry of Health and Social Development of Russia dated May 28, 2010 No. 1376-19.

That is, you will not have to recalculate insurance premiums during the vacation pay period.

Due to the deduction of unworked vacation pay, the employee will receive less money in the final calculation. And it is on this reduced amount that you will accrue the insurance premium. s paragraph 1 of Art. 11, art. 17 of the Federal Law of July 24, 2009 No. 212-FZ "On insurance premiums ...".

So, in the example discussed above, the base for calculating insurance premiums will be 8653.35 rubles. (10,476.19 rubles - 1,822.84 rubles). It is on the basis of this amount that it is necessary to show the amount of assessed contributions for June 2011 in personalized reporting in the form SZV-6-2 for the first half of 2011.

But if the amount of payments accrued to the employee in the dismissal quarter, less than the amount debt for unworked vacation days, you will have to adjust personalized reporting according to this worker at PFR Letter No. 08-26/5404 dated May 19, 2011. About how to do it correctly, we were told in the FIU.

From reputable sources

Deputy Manager of the Department of the Pension Fund of the Russian Federation for Moscow and the Moscow Region

“If in the billing (reporting) period the employer withholds vacation pay for unworked vacation days that were accrued in previous reporting periods, then a negative amount of additional charges may form.

In this case, corrective information is generated according to the SZV-6-1 or SZV-6-2 forms for the period in which the employee was granted leave, and they are submitted to the FIU along with the initial personalized accounting information for reporting period, in which unearned vacation pay from the employee was withheld.

In this case, the amount indicated in the form ADV-6-2 must be equal to the amount taken into account in the last calculation in the form RSV-1 approved Order of the Ministry of Health and Social Development of Russia dated November 12, 2009 No. 894n presented in Pension Fund. There is no need to make changes to the previously submitted calculation of RSV-1 insurance premiums” .

Please note that only accrued contributions to the Pension Fund need to be adjusted in the period when the employee took vacation in advance. No adjustments are required for contributions paid.

Example. Reflection in personalized reporting of a negative amount of additional charges on insurance premiums to the Pension Fund of the Russian Federation when deducting a debt from an employee

The rate of pension contributions to finance the insurance part of the labor pension for it is 26%.

Simonov A.A. took vacation in advance in the 1st quarter of 2011. The insurance premiums accrued and paid on it during this period amounted to 15,000 rubles. By order of the head, upon dismissal, it is necessary to withhold from him the amount of vacation pay for unworked vacation days.

The salary for 1 day worked in July amounted to 1000 rubles, unearned vacation pay is 1500 rubles. That is, as a result of withholding the debt from the employee, the amount of additional assessment of contributions for him for July will be negative: -130 rubles. ((1000 rubles - 1500 rubles) x 26%).

For all other employees (except Simonov A.A.) in the III quarter of 2011, insurance premiums in the amount of 25,000 rubles were accrued. And paid in the III quarter 24,870 rubles. (25,000 rubles - 130 rubles).

/ solution / The initial form CZV-6-2 for 9 months of 2011 will look like this.

Form SZV-6-2

OKUD code

OKPO code

R E E S T R
information on accrued and paid insurance premiums for compulsory pension insurance and insurance experience of insured persons

Information type:

No. p / p	FULL NAME. insured person							Work period
				accrued	paid	accrued	paid	from (dd.mm.yy)	to (dd.mm.yy)
1	2	3	4	5	6	7	8	9	10
…
4	Simonov Andrey Andreevich	011-222-333 44		-	-	-	-	01.07.2011	30.09.2011
…
Total for the registry:				25 000	24 870

The corrective form CZV-6-2 for the 1st quarter of 2011 will be completed as follows.

Insurance premiums for the last three months (in 2010 for six months) of the reporting period for insured persons

No. p / p	FULL NAME. insured person	Insurance number of an individual personal account	Address for sending information about the status of an individual personal account	The amount of insurance premiums for the insurance part of labor pension		The amount of insurance contributions to the funded part of labor pension		Work period
				accrued	paid	accrued	paid	from (dd.mm.yy)	to (dd.mm.yy)
1	2	3	4	5	6	7	8	9	10
1	Simonov Andrey Andreevich	011-222-333 44	129000, Moscow, st. Kirova, d. 2, apt. 6	14 870We indicate the amount of insurance premiums in the period when the employee took leave in advance, reduced by the amount of negative adjustment
Total for the insured:		25 000	24 870

Information about corrective (cancelling) information:

With such filling in personalized reporting, information on contributions accrued for the III quarter according to ADV-6-2 (25,000 rubles accrued, negative corrective additional charge - 130 rubles) will coincide with the information in the RSV-1 form.

Forgive the debt

Tax authorities consider expenses in the form of amounts of unworked vacation pay economically unreasonable And Art. 252 of the Tax Code of the Russian Federation; Letter No. 20-12/061148 dated June 30, 2008 from the Federal Tax Service of Russia for Moscow. Therefore, if you do not want to argue with them, then you need to reduce the income tax base in the period of dismissal by the amount of unearned vacation pay. At the same time, neither personal income tax, nor insurance premiums, nor reporting on them need to be adjusted. In addition, insurance premiums accrued on payments not taken into account for income taxation can be taken into account in tax expenses. X Letter of the Ministry of Finance of Russia No. 03-03-05/85 dated April 23, 2010.

It is always necessary to calculate the amount of debt if the employee has unworked vacation days at the time of dismissal. But if the debt is not very large and you don’t want to collect it from the employee (even for the reasons that you don’t want to make any adjustments in accounting), you can do this. For a while, you just need to forget about debt. That is, not to collect it from the employee, but also not to issue forgiveness of the debt. And after 3 years, this debt can be written off as hopeless th Art. 196, paragraph 1 of Art. 1102 of the Civil Code of the Russian Federation and you don't have to make any further adjustments.

If the employee took the next paid vacation in advance, and subsequently decided to quit, the director can make a deduction for unworked days. However, this is not always done and not in full size: there are legal restrictions to be followed by accountants and managers.

The procedure for granting leave

This issue is regulated by art. 122 of the Labor Code of the Russian Federation. According to it, all citizens employed in the organization have the right to annual paid holidays. If the enterprise comes new person, then he can exercise this right only after six months of work, and in agreement with the employer - before this period.

Before the expiration of six months, leave is due to certain categories of employees:

Having worked for a full calendar year, citizens may have holidays for subsequent years in advance. The countdown starts from the moment of employment.

For instance:

Larin V.V. got a job at LLC "OOO" on February 12, 2016. The first vacation in the form of 28 days was issued to him from 08/15/2016. At the end of the year, a vacation schedule was drawn up, and he had the right to the next vacation only after 02/12/2017, because. he had already used all the days for the first year worked in advance.

What is included in vacation pay?

The employer is obliged to warn the subordinate about the beginning of his vacation two weeks in advance, and he must write a statement. Subsequently, three days before the holiday, he is paid vacation pay. If this does not happen, the employee has the right to reschedule the date as agreed with the manager for another time.

What should be taken into account or excluded when calculating average earnings for calculating vacation pay:

taken into account	excluded
Basic salary	Overtime pay
Percentage of sales, fees, bonuses	Vacation
Rewards, various bonuses	Bonuses not included in the remuneration system in accordance with the acts adopted in the organization
Odds for work in special conditions or in the Far North	Sick leave, maternity benefits
Bonuses included in the wage system at the enterprise	Reimbursement for travel and food expenses
For teachers - additional payments for exceeding the norm of hours	Material aid

When is the hold made?

The employer can withhold the overpaid money when issuing leave in advance to the employee if he decided to quit. An exception is the termination of the employment contract for the following reasons:

• The presence of medical indications in which the employee should be transferred to another position, but he refused it.
• Termination of the organization.
• Staff reduction.
• Complete disability of the employee according to the medical report.
• Restoration of the previous employee who held the position of the dismissed, by a court decision.
• Death of a subordinate.
• Conscription.
• Inability to continue working due to emergency circumstances.

Thus, in the absence of the circumstances mentioned above, the director may make deductions if the subordinate decides to leave. Art. 138 Labor Code of the Russian Federation the maximum amount that the employer has the right to withhold from the salary is set - no more than 20%.

How are the amounts to be withheld calculated?

The legislation does not determine the procedure for calculating workers' compensation funds, but usually everything is done like this:

1. The accountant calculates how many months are left until the end of the year for which the vacation was used, from the moment the employee left the company.
2. The resulting figure is multiplied by the number of days of rest provided and divided by 12 months. This is how the sum of vacation days taken in advance is recognized.
3. unspent vacation days multiplied by the average daily wage. The result is the amount to be compensated.

Let's look at a specific example:

The employee was employed by the organization on February 1, 2016. He was granted leave from 10/05/2016. – 28 calendar days. During the holidays, he received a lucrative job offer, and decided to quit by writing a statement. The employment contract was terminated on 05.11.2016. Average daily earnings - 1,000 rubles.

The number of months that he did not work before the end of the calendar year is four.

4 x 28/12 = 9 days of advance leave.

9 x 1,000 (SDZ) = 9,000 rubles. – money that must be withheld at the final settlement.

If vacation pay were calculated not according to the average daily, but according to the average hourly earnings, unworked hours would be used in the calculation.

For instance:

The company has a 40-hour work week with two days off.

The employee started the working year on 01/01/2016, and he would have ended it only on 04/30/2017, but he quit on 09/30/2016, without having worked until the end of 7 months. From the beginning of September, he was issued 28 days of vacation. The average hourly salary of an employee is 100 rubles.

28x7/12 = 16 unworked rest days.

40 (hours per working week) x 16/7 (days) = 91 unworked hours.

91 x 100 (SCZ) \u003d 9100 - the amount of deductions from the salary upon dismissal.

Hold order

The entire payroll process looks like this:

1. The employer receives a statement from the subordinate, decides on the need for a two-week working off.
2. Makes an order, fills work book and gives it to the person leaving on the last day of work, along with the payroll, having made a preliminary deduction.
3. If the employee on the day of termination labor relations was absent from the workplace, money and documents are issued no later than the day following the date of presentation of claims (Article 140 of the Labor Code of the Russian Federation).
4. When calculating the amount of compensation, restrictions are taken into account - no more than 20%.

The employee's salary is 20,000 rubles, and the amount of deductions is 12,000 rubles.

20,000 x 20% = 4,000 rubles. - the amount that the director has the right to withhold. The rest of the worker can compensate voluntarily.

Under what circumstances does the right to withholding for leave arise upon dismissal

Six months after the start of employment with a particular employer (and sometimes even earlier - by agreement of the parties or on the basis of part 3 of article 122 of the Labor Code of the Russian Federation), the employee receives the right to his first annual vacation. According to Art. 115 of the Code, the duration of paid leave cannot be less than 28 days.

Advance leave upon dismissal before working for 12 months gives the employer the right to withhold for leave upon dismissal. After all, vacation pay is calculated for the entire period, that is, for 28 days, which are due to the employee once a year, but in this case the year has not been worked out, although the vacation has already been used.

When does the holiday pay ban apply?

Unnecessarily paid vacation pay for vacation received in advance can be withheld by the employer from wages retiring employee, except in a few cases. So, according to par. 4 hours 2 tbsp. 137 Labor Code, withholding upon dismissal for leave provided in advance cannot be made if the employee leaves for the reason:

• refusal to transfer to another job for medical reasons or because the employer does not have such an opportunity;
• downsizing of the employer or its liquidation, as well as a change of ownership, which led to the dismissal of the company's management;
• reinstatement by a court decision (labor inspectorate) of an employee who previously worked in this position;
• conscription for military service (including alternative);
• recognition of an employee as disabled for medical reasons;
• force majeure recognized Russian government as such and not allowing to continue working;
• death of the employer.

If at least one of the above grounds takes place, the employer is not entitled to withhold for leave upon dismissal. If the employee leaves for other reasons, then the employer has every reason to make a deduction for the used vacation from the employee’s salary upon dismissal . Withholding, according to part 3 of Art. 137 of the Labor Code, must be made within a month after the end of the period determined for the employee to repay the debt that has arisen in the form of overpaid vacation pay.

If we talk about deduction for unused vacation upon dismissal, then it is not made, because 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 holidays 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 a whole vacation, if the employee worked for 11 or more months or worked for more than 5.5 months and was fired due to the liquidation of the employer company, conscription for military service, or recognition as unfit for medical reasons.
2. Proportional to actual hours worked.

That is, when calculating compensation for vacation that was not used before dismissal, overpayment of vacation pay is not obtained, because they were not previously paid, while compensation payments are calculated according to actual data.

IMPORTANT! Also not allowed withholding compensation for unused vacation upon dismissal, for example, in the event of a subsequent reinstatement of an employee in a position, since neither the Labor Code nor any other normative act does not contain such grounds for deduction from wages. Moreover, previously paid compensation does not give the employer the right to refuse to grant leave to the reinstated employee.

The procedure for withholding vacation pay upon dismissal

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Withholding for unworked vacation days upon dismissal must be made by the employer, subject to the restrictions established by Art. 138 of the Labor Code of the Russian Federation. According to part 1 of the article, their amount should not exceed 20% of the amount of wages paid, even if the employee himself does not object to the deduction of a larger amount.

In the event that the amount of the overpayment of vacation pay when making the final settlement with the employee upon dismissal exceeds the maximum allowable amount, he can voluntarily pay off the debt that has arisen. The refund can be made by depositing cash through the company's cash desk or transferring it to its current bank account.

If the dismissed employee does not do this, the employer will be able to claim the resulting debt from him only through the courts. Judicial practice on the issue of collecting debt from an employee due to the impossibility of making a withholding for unworked vacation days upon dismissal is very contradictory.

Don't know your rights?

Thus, some judges believe that deduction for unworked leave upon dismissal cannot be made dependent on whether the employee has sufficient income to cover such debts in the form of wages paid before dismissal (appellate ruling of the Supreme Court of the Republic of Karelia dated 11.01.2013 No. 33-111/2013).

Others are sure that if upon dismissal it is not possible to withhold the entire amount paid for unworked vacation, then the employer cannot demand repayment of such a debt from the dismissed employee. Unless, of course, we are talking about a counting error in the calculation or dishonesty of the employee himself - in these cases, the employer has such a right by virtue of Part 2 of Art. 137 of the Labor Code (decree of the Presidium of the Rostov Regional Court of September 15, 2011 No. 44g-109).

How to calculate the amount of overpaid vacation pay upon dismissal

The calculation of deduction for leave upon dismissal is made using the following formula:

UDNO = (DFO - DOS) × WHSD,

UDNO - retention for days unused vacation;

DFO - the number of actually taken vacation days;

DOS - the number of vacation days laid down in accordance with the vacation experience;

WHSD is the average daily earnings calculated at the time of payment of vacation pay.

Stages of calculation of intermediate indicators:

1. To calculate the DOS indicator, it is necessary to divide by 12 the number of vacation days required by law or an employment contract for a working year (minimum - 28 days). Then the resulting value should be multiplied by the number of actually worked months. If the received number of days turned 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 07.12.2005 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 hours actually worked, if it does not reach 12 months (clause 6 of the regulation, approved by the government decree “On the features of the procedure for calculating the average wage” dated December 24, 2007 No. 922).

So, the deduction for used in advance, but unworked leave 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 deduction is repaid by the dismissed person on his own or collected by the employer through the court. It is important to remember that in some cases there is a ban on deductions upon dismissal (for example, due to the liquidation of the employer).

There are situations when an employer must deduct for unworked vacation days upon dismissal of an employee. This happens when an employee takes his vacation in advance.

According to the Labor Code of the Russian Federation, an employee can go on vacation six months after being hired. In this case, he is given 28 calendar days, although the employee has earned only 14 days. It turns out that he spent 14 days in advance.

If the employee decides to quit before the end of his working year, for which he has already taken a vacation, then the employer has the right to deduct for the vacation used in advance upon dismissal.

The exception is when an employee leaves:

• in case of refusal to transfer to another position, since he can no longer hold this position according to the conclusion of the medical commission - clause 8 of Art. 77 of the Labor Code of the Russian Federation;
• upon liquidation of the enterprise - paragraph 1 of Art. 81 of the Labor Code of the Russian Federation;
• upon termination of the activities of the IP - paragraph 1 of Art. 81 of the Labor Code of the Russian Federation;
• when abbreviated - paragraph 2 of Art. 81 of the Labor Code of the Russian Federation;
• when changing the owner of the enterprise - paragraph 4 of Art. 81 of the Labor Code of the Russian Federation;
• when calling an employee for urgent military service - paragraph 1 of Art. 83 of the Labor Code of the Russian Federation;
• upon reinstatement in this position of an employee who previously held it - paragraph 2 of Art. 83 of the Labor Code of the Russian Federation;
• if the employee is recognized medical board completely unfit for work - paragraph 5 of Art. 83 of the Labor Code of the Russian Federation;
• at the death of one of the parties to the employment contract - paragraph 6 of Art. 83 of the Labor Code of the Russian Federation;
• in the event of emergencies, as well as man-made and natural disasters- paragraph 7 of Art. 83 of the Labor Code of the Russian Federation.

Withholding vacation pay upon dismissal is the right of the employer, and not his obligation. He independently decides whether to make a deduction from a resigning employee or not. If a positive decision is made, then the consent of the employee is not required.

In order not to be mistaken in the calculations, it is necessary to correctly determine the "vacation" experience. To do this, you need to calculate the number of whole months and days from the date this employee was hired to the date of his dismissal.

By general rule, if the number of days is more than 15, then you need to round up to a whole month.

If there are less than 15 days, then down to a whole month.

For example, an employee has 7 months and 16 days of "holiday" experience. When rounded, it turns out that he needs to calculate as 8 months.

28/12 * M, where M is the number of months of vacation experience.

For example, for 8 months of unused vacation, the employee is entitled to 28 / 12 * 8 = 19 days of vacation.

The employee was paid vacation pay for 28 calendar days of vacation in the amount of 38,300 / 29.3 * 28 = 36,600 rubles.

Consequently, the employer must make a withholding for leave upon dismissal in the amount of 36,600 - 24,836 = 11,764 rubles.

When holding, you must adhere to paragraph 1 of Art. 138 of the Labor Code of the Russian Federation. That is, the employer does not have the right to withhold from the employee more than 20% of his salary. Therefore, holiday pay deductions will be limited to this limit. Even at the written request of the employee, the employer cannot deduct more than this limit.

If the amount of all payments upon dismissal is less than the amount of deduction, then the employee can voluntarily pay the missing amount to the cash desk of the enterprise or transfer it to the current account.

If the employee refuses to do this voluntarily, then the employer has the right to go to court with a claim for the recovery of overpaid amounts from him, on the basis of Art. 382 and Art. 383 of the Labor Code of the Russian Federation.

Is deduction for unworked vacation days always allowed?

The labor legislation of our country really allows deductions from the wages of retiring employees. Here it is necessary to observe only one important condition: the deduction will be legal if the employee leaving the organization actually received leave for the year that he had not yet fully completed. Only in such a situation will the employer really have the legal right to exercise unilateral withholding.

However, there will be certain exceptions to the above rule. In particular, the current regulations established a list of special circumstances of dismissal under which retention Money is invalid. Such situations include the following:

1. If an employee officially refuses to be transferred to another position, which is required by him in accordance with the received medical indications. In this case the only way The resolution of the situation will be the dismissal of the employee for special reasons. However, here the employer will not have the right to exercise a withholding.
2. The dismissal of an employee is associated with the reorganization of the institution or with the complete liquidation of the organization. In this case, the dismissal also occurs due to circumstances beyond the control of the employee. Therefore, the employer cannot intentionally withhold vacation pay.
3. If an employee is dismissed on the basis of an order to reduce, which was issued by the head of the organization or other authorized person. These rules will also apply to individual entrepreneurs.
4. If during the direct dismissal of an employee there was a change of ownership of the organization's property. They may be: general manager companies, chief director institutions, and others.
5. If professional activity employee was interrupted due to his assignment to military service. In this case, such departure of an employee will be equated to dismissal due to circumstances beyond his control.
6. If the departure of an employee was the result of the return to this position of a former employee, in accordance with the order of a judicial institution or other authorized organization.
7. If other emergency circumstances have occurred that are not dependent on the will of the parties, which are a direct obstacle to the further continuation of professional relations. This may include, for example, the introduction of martial law in the country, a major natural disaster, accidents, epidemics, etc.

In what case can unworked vacation days appear?

Many modern workers simply do not understand the mechanism for calculating unworked vacation days. That is why, in the case of deductions from wages, they very often have unfounded claims against their employer. Consider an example of the occurrence of unworked vacation days:
“Vasin I.V. got a job at Klever LLC as a manager on 07/01/2018. In accordance with the current rules of labor legislation, the full right to issue the first holiday period, whose standard duration is exactly 14 days, occurred to him in January 2019. However, for that period of time, the employee needed to receive a full-fledged vacation, the duration of which is 28 calendar days. He asked for such a leave from the employer, to which he received a positive response from the boss.

While on vacation Vasin I.V. unexpectedly found a new, more attractive job for him. Immediately after the end of the rest period, the employee filed a letter of resignation of his own free will.

Thus, at the time of the dismissal, the situation that arose looked like this: an employee who worked only half of his legal vacation used the entire rest period. We can say that 14 days of rest were taken from the company in advance. Consequently, on the basis of existing rules, the employer has a legal opportunity to make a deduction from the accrued wages of a subordinate.

If we talk about the basic principles for establishing the exact amount of deduction for vacation, a standard scheme is applied here, which is also used during the calculation of vacation pay. The main indicator in this case will be the size of the average salary of an employee. Further, this amount will need to be multiplied by the exact number of vacation days that were taken by the employee in advance and had not yet been worked out by him at the time of direct dismissal.

Deduction entries for unworked vacation days

Of course, withholding wages is a serious procedure in which every action of the employer must be documented. This is necessary so that in the future the head of the organization has all the necessary confirmation of the fact that he really did everything right and did not violate the legal rights of the employee. It is possible that an employee will want to make appropriate claims regarding the actions of his own boss.

During the implementation of the deduction from wages, the main information must be fixed by an authorized person in accounting documents. For this, wiring is made. The rules and features of their compilation are similar to those that apply during the accrual of vacation pay. However, there will still be some differences here. First of all, all amounts that are withheld from the income of subordinates must be recorded in the documents with the appropriate “-” sign.

The debit of the accounts will look like this: 20 - main production, 26 - general business expenses, 44 - sales expenses, etc.

Particular attention in the implementation of withholding must be paid to the establishment of the tax base. In particular, it should be reduced by the overcharged amount of vacation pay.

As for the main features of the calculation, they will all look standard. After the amount of deduction has been officially established, the employer will be able to start preparing other required documents. The main one in this case will be the order of the head of the company regarding the deduction of a certain amount of money from the employee's earnings.

Is it possible to do without deductions for vacation?

For many employers, the process of withholding money for unworked vacation by an employee is not a very pleasant procedure. This is quite understandable, because such news can spoil the relationship between the employer and the resigning subordinate. Moreover, an employee may consider such a decision of the boss to be absolutely unfair and try to contact the appropriate authorities.

That is why modern employers often wonder if it is possible to somehow avoid retention? To do this, you can use the following methods:

1. Preliminary signing by the parties of labor relations of a special agreement on debt forgiveness. Such a document is most often found in situations where an individual entrepreneur acts as an employer. The agreement prescribes all the nuances of resolving the situation in which the employee will not work all the vacation days at the time of dismissal. The document must be signed by both the head of the organization and the employee himself.
2. In some cases, even in the absence of a prior agreement, the employer may simply "forgive" the employee and release him from the organization without any forced deductions. Similar situations are also most often found in individual entrepreneurs. In some cases, such solutions will indeed be optimal, especially when it comes to a very small number of unworked vacation days. Here, the employer can simply save himself from additional worries regarding the preparation of the required documents, filling out financial statements and other actions.

Last modified: January 2020

If an employee quits, the employer, in particular, the accounting department and the personnel department, have a lot of trouble. Prepare an order, make an entry in the labor, calculate and pay wages, severance pay(the staff is being reduced, the organization is being liquidated), to compensate for unclaimed vacation days. What if the vacation is taken in advance? The accounting department applies deduction for unworked vacation days upon dismissal of an employee.

When does the right of retention arise?

There are two scenarios when this is possible.

1. The newly accepted leaves before the expiration of the year of work, for which he will be able to earn an annual paid vacation in full. An employee can take the opportunity to take a full vacation after six months of work (part 3 of article 122 of the Labor Code of the Russian Federation), during this period of time he will earn 14 days.

Dementiev A.I. got a job on 01/23/2017. He will be able to exercise the right to rest from 07/23/2017, although he will not work a full year. If he quits before the expiration of 12 months of work, he must return part of the vacation pay for the vacation provided in advance.

1. The dismissed person was provided with an annual paid vacation until the expiration of the next year of work; by the time of dismissal, he had not worked that year.

Another working year Chereshneva D.V. lasts from 05/01/2017 to 04/30/2018. Rest granted 02/01/2018. Part of it will take off in advance. If Chereshneva quits before the end of the working year, the consequences indicated in the example with A.I. Dementiev will arise.

The employee's work year begins on the date of admission. Periods that are not counted as rest periods shift the year by the corresponding number of days.

When it is not possible to withhold vacation pay upon dismissal

The legislator limits the circle of persons from whose settlement funds the amount is withheld. It cannot be retained if the debtor leaves due to circumstances (clauses 1, 2, 5, 6, 7 of article 83, clause 8 of part 1 of article 77, clauses 1, 2, 4 of part 1 of article 81):

• inability to perform duties due to illness, injury, refusal to transfer to the proposed jobs;
• conscription;
• restored previously occupying this workplace;
• inability to practice labor activity;
• death of an employee, employer, recognition of this fact by the court;
• emergency due to a natural disaster, a major accident in production, transport, war, epidemic;
• liquidation, downsizing;
• the owner of the property of the organization has changed (the clause applies to the director, deputy directors, chief accountant).

It is necessary to know: .

When is produced

The debt is withheld from the settlement funds of the person leaving on the day of dismissal.

Retention amount limit: It is allowed to keep no more than 20% of the earnings (Article 138 of the Labor Code of the Russian Federation).

In established cases, the percentage may increase to 50. If withheld: alimony for minor children, compensation for harm to those who have lost their breadwinner, damage caused by a crime, the value may increase to 70% (Article 138 of the Labor Code of the Russian Federation).

If funds are not enough

It may happen that the size of the retained will overcome the threshold of 20%. For instance, . What to do then?

There are three solutions:

1. To offer the resigning person to voluntarily return the money to the cashier, to the account of the enterprise.
2. Forgive the debt. The debtor and the organization enter into an agreement in writing, which specifies the amount, the number of unworked days. The agreement is concluded in order to confirm the agreement with documents if disagreements arise between the parties.
3. Keep the debt by contacting the judicial authorities (Articles 382, ​​383 of the Labor Code of the Russian Federation). The court decision most often supports the resigned. The legislation regulates the collection of debts on the day of termination of the employment contract, and not after.

How to calculate the number of unworked days

For a month of work, a person who is given 28 days of a vacation period increases his well-deserved rest by 2.33 days. If less than 15 days are left when calculating the vacation period, the remainder is discarded, more is taken for a whole month.

To determine, you can use the formula:

D \u003d I - (O: 12 * S)

D - the number of unworked days;

I - the number of days of vacation used;

O - the duration of the leave provided;

C is the length of service for vacation, expressed in months.

The resulting fractional can be reduced to an integer in favor of the employee (letter of the Ministry of Health and Social Development of Russia dated 07.12.2005).

Kudryashov N.T. adopted on 11/15/2017. From July 23 to August 19, 2018, he was on vacation for 28 days. Retired on 09/10/2018.

From 11/15/2017 to 08/14/2018 - 9 months, from August 15 to September 10, 2018 - 27 days. Rounding up 27 days to a whole month. The leave period will be 10 months.

Calculate unworked days:

Deduction calculation procedure:

1. Calculate the number of days used in advance.
2. Check your average daily earnings.
3. Clarify whether there was an increase in wages during the absence of the employee.
4. Calculate the number of used days before, after the salary increase.
5. Calculate the average daily earnings after the salary increase.
6. Calculate the retained amount.

The accountant definitely needs to check whether the salary at the enterprise increased during the absence of the employee.

It is convenient to calculate using a table.

U - deduction for vacation used in advance upon dismissal;

D, D1 - days used in advance before, after the change in salary;

З, З1 - average daily earnings before, after the change in salary.

The average daily earnings after the salary change is calculated as the product of the average daily earnings before the change and the salary increase factor.

Komarov I.V. rested from November 13 to December 10, 2017 for the annual period from 08/22/2017 to 08/21/2018. He is entitled to 28 days of rest each year. Issued 35840 rubles. holiday pay. During the absence of Komarov I.V., from 04.12.2017, salaries were raised at the enterprise. Salary before the change - 40,000 rubles, after - 44,500. Komarov leaves on April 30, 2018.