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Two questions regarding personal income tax 1. An employee was provided with benefits for a child studying at a university. The benefit was valid until June 30, 2012, but the accountant erroneously provided the benefit until the end of 2012. What to do in February? Is it possible to withhold personal income tax for 2012 from an employee’s salary for January 2013? Or simply indicate the employee’s personal income tax debt in the information for 2012? Or should I somehow inform the Federal Tax Service? 2. The employee’s personal income tax was over-deducted in 2011. In March 2012, the accountant paid this amount to the employee along with his salary. What does this threaten us with?
Unlawful provision of standard deductions to employees or their incorrect application can lead to incomplete withholding of personal income tax and, accordingly, to the accrual of a fine under Art. 123 Tax Code of the Russian Federation. In particular, the company will be fined for failure to pay personal income tax in the absence of employee statements and documents confirming the right to the deduction. Therefore, if an organization independently discovers errors in providing deductions, it is necessary to recalculate the tax and withhold the corresponding amounts of personal income tax from the employee. The error was made in 2011, but was discovered between February 1 and April 1, 2012. When preparing information about an individual’s income for the past tax period, your organization must: include in taxable income those payments from which tax was not actually withheld. These payments should be included in the income of those months in section 3 of the certificate in form 2-NDFL when the income was accrued to the individual; reflect the identified personal income tax arrears in section 5 of the certificate in form 2-NDFL on line 5.7 “Amount of tax not withheld by the tax agent.”
A person can submit an application for a tax refund within three years from the date of its withholding (Clause 7, Article 78 of the Tax Code of the Russian Federation). Sources for returning the overpayment may be upcoming payments for personal income tax withheld and subject to transfer to the budget: from the income of the same person who had the overpayment (for example, if the employee from whom the excess amount of personal income tax was withheld continues to work in the organization); from the income of other taxpayers in relation to whom the organization is a tax agent. Your actions are legal.
The justification for this position is given below in the materials of the “GlavAccountant System” in the article of the magazine “Simplified”, “Salary”, which you can find in the “Magazines” tab.
Regarding the issue of excessively provided deduction
1. Article: Having provided an extra deduction, return the money to the budget
In 2011, our company erroneously provided a deduction when calculating personal income tax to an employee for two children instead of one. How to withhold an excessive tax deduction from an employee?*
N.I. Yantareva,
accountant at Sapphire LLC
In your case, you have a personal income tax debt that just needs to be paid off. To do this, you need to withhold this amount from the employee’s income paid to him in cash this year (clauses 1, 4 and 6 of Article 226 of the Tax Code of the Russian Federation). There is no need to write any statements. In addition, you will have to pay penalties based on the amount of tax transferred in violation of the deadline established by the Tax Code of the Russian Federation (Article 75 of the Tax Code of the Russian Federation).*
Answers the question
N.N. Stelmakh,
Advisor to the State Civil Service of the Russian Federation, 2nd class
2. Article: Personal income tax is not withheld. How to fix the error
The accountant made a mistake in calculating personal income tax - he did not withhold tax from the employee’s earnings or did not withhold the full amount.
You will learn what needs to be done in this case from the article.
Organizations, individual entrepreneurs, notaries and lawyers who make payments to individuals are required to correctly and timely calculate, withhold and transfer personal income tax to the budget (subclause 1, clause 3, article 24 of the Tax Code of the Russian Federation). These responsibilities are assigned to them as tax agents.*
Responsibility of tax agents
For failure to fulfill their duties, tax agents are held liable for taxes. Thus, for unlawful non-withholding (incomplete withholding) of personal income tax, in accordance with Article 123 of the Tax Code, a fine of 20% of the amount subject to withholding is imposed, and for untimely transfer, the tax agent must pay a penalty (clause 1 of Article 75 of the Tax Code of the Russian Federation). Penalties are calculated for each calendar day of delay as a percentage of the unpaid personal income tax amount. With regard to income in the form of wages, the calculation of the period of delay begins from the day following the day of receipt (transfer) of funds for payment of income. The interest rate of the penalty is equal to 1/300 of the refinancing rate of the Central Bank of the Russian Federation, valid during the period of delay.*
What can be done to minimize losses from the application of tax sanctions? There is only one thing - try to correct the mistake.
The list and sequence of actions taken to correct an error that led to an underpayment of personal income tax to the budget depends on whether it is possible for a given tax agent to withhold an additional amount of tax or whether he does not have such an opportunity.*
A tax agent can withhold personal income tax from an individual’s income
If a tax agent, at the time of detection of an underpayment of personal income tax, maintains a contractual relationship with an individual, pays him income in cash, the amount of payments satisfies the conditions of paragraph 4 of Article 226 of the Tax Code and calculations for the tax period to which the error relates have not been completed, the tax agent is obliged to withhold personal income tax not fully withheld, transfer it to the budget, accrue penalties and pay them. In this case, the tax agent will have to prepare a number of documents.*
Fixing an error in the accounting statement
First of all, the fact of identifying an error must be reflected in the accounting certificate. The question may arise, why create additional paperwork? We will try to answer.*
First of all, the accountant himself needs an accounting certificate as a document describing a fact that is important for accounting and tax accounting, to control the interaction between the taxpayer and the tax authority. It may also be required in the event of a tax audit to restore the history of events to correct an error, to prove that the error was actually discovered and corrected by the tax agent himself, and not by the tax inspector.
Based on the accounting certificate, additional personal income tax is calculated, additional settlements are made with the taxpayer and the budget, and corrections are made to the accounting and tax registers. Let us consider the contents of the accounting certificate in this case. This document should:*
– describe the essence of the error, the date when it was made, and its cause;
– give the correct version of personal income tax calculation and record the date of recalculation;
– indicate the amount of personal income tax that needs to be additionally calculated;
– indicate from what income of the taxpayer and when the additional accrued amount of personal income tax will be withheld;
– provide a calculation of the amount of penalties for late payment of taxes to the budget;
– set the date for transferring arrears and penalties for personal income tax to the budget;
– propose corrective entries for tax and accounting registers.
Let's look at the preparation of an accounting certificate using an example.
Should I notify the taxpayer?
According to Part 1 of Article 136 of the Labor Code, when paying wages, the employer is obliged to notify each employee in writing about the components of the wages due to him, as well as the amount and grounds for deductions made and, of course, the total amount of money to be paid. This notification is carried out by issuing a pay slip to the employee. Its form is approved by the employer (Part 2 of Article 136 of the Labor Code of the Russian Federation).*
It makes no sense to prepare a special document notifying the employee about an error that is corrected during the tax period. Tax legislation does not impose such an obligation on a tax agent.
A separate notification about the deduction of personal income tax arrears from accrued income may be necessary to inform an individual who is not related to the tax agent by labor relations. For example, when the recipient of the income is a performer under a civil contract. He may simply be sent a copy of the accounting certificate.
We pay personal income tax and penalties
Let's figure out how to draw up payment documents when paying off personal income tax debt.*
Payment order for personal income tax payment. The fields of the payment order are filled in in the order established by Order of the Ministry of Finance of Russia dated November 24, 2004 No. 106n.
In field 101 (upper right part of the form) a two-digit indicator of taxpayer status is indicated. When transferring personal income tax, code 02 is indicated - tax agent.
Field 104 (bottom of the form) reflects the indicator of the budget classification code (BCC) in accordance with the classification of budget revenues of the Russian Federation.
Field 105 indicates the value of the OKATO code of the municipality in accordance with the All-Russian Classifier of Objects of the Administrative-Territorial Division in which the tax agent is located.
Field 106 indicates the basis for the payment: TP – payments for the current year.
Field 107 indicates the tax period for which additional tax is paid if an error in tax calculation is independently discovered and the additional assessed personal income tax is voluntarily paid. For example, MS.01.2011 – monthly payments for January 2011.
A zero (0) is entered in field 108 of the payment order. In the case of voluntary repayment of debt for expired tax periods in the absence of a requirement to pay taxes (fees) from the tax authority (the value of the payment basis indicator is equal to ZD), a zero (0) is entered in field 109 of the payment order.
In field 110 of the payment order, the payment type indicator is indicated: Tax – payment of a tax or fee.
Payment order for payment of penalties. When transferring penalties for late payment in relation to our example, the corresponding BCC should be indicated in the payment order, in field 106 “Base of payment” - TP, in field 107 “Tax period” - MS.01.2011, in field 108 and 109 zeros are entered, in field 110 “Payment type” – PE.*
Please note that if the tax agent managed to correct the mistake and withhold personal income tax in full, he will only have to pay a penalty; he will be exempt from the fine.
Additional entries in personal income tax registers
Since 2011, tax agents are required to keep records of the income of individuals, calculated and withheld tax in the new tax register. Moreover, its form must be developed by the tax agent independently.*
The list of information that must be reflected in the tax registers for personal income tax is given in paragraph 1 of Article 230 of the Tax Code.
In No. 1 of the magazine “Salary” for this year, a sample tax register for personal income tax accounting was published - a tax card. In No. 2 the procedure for filling it out is given. This tax register will show corrections regarding errors made in the calculation of personal income tax in 2011.
After corrective operations are carried out, they must be reflected in the personal income tax register.*
The transfer of arrears was made during the tax period. Indicators are indicated in the columns of the months in which the operations were carried out. Let's show this with an example.
The transfer of arrears was made in the next tax period. If corrections are made at the junction of tax periods, the order in which corrections are reflected changes slightly.*
In July 2011, when forming the taxable base for income taxed with personal income tax at a rate of 13%, the premium amount of 2,000 rubles was not taken into account. The error was discovered in December 2011. Withholding of arrears on personal income tax in the amount of 260 rubles. made on January 11, 2012 from unpaid wages accrued for December 2011. How to make entries in the tax card for personal income tax?*
Solution. The amount of the premium not taken into account when forming the taxable base for personal income tax (RUB 2,000) will be shown in the tax card for personal income tax accounting for 2011 in the “July” column:*
– in table 7 “Income taxed at the rate of 13%”;
– in table 9 “Amount of taxable income”;
– in table 11 “Taxable base”.
Additional personal income tax charge in the amount of 260 rubles. we will show in the “July” column of table 12 “personal income tax at a rate of 13%”, the date of additional accrual will also be indicated there - 12/31/2011.
Since the transfer of personal income tax arrears occurred in the next tax period, it is not possible to show it in Table 13. The personal income tax accounting card does not provide for the reflection of transactions relating to the next tax period. You have the right to supplement this form with background information. See sample.
In addition, the amount of 260 rubles. should be included in the indicator for the line “at a rate of 13%” in the column “Transferred” in table 20 “Total amount of tax based on the results of the tax period.”*
The error for a closed tax period was “found” after February 1 until April 1 of the next tax period. We are talking about a situation in which the error was made in 2010, but was discovered between February 1 and April 1, 2011. When preparing information about an individual’s income for the past tax period, the tax agent must:*
– include in taxable income those payments from which tax was not actually withheld. These payments should be included in the income of those months in section 3 of the certificate in form 2-NDFL when the income was accrued to the individual;
– reflect the identified personal income tax arrears in section 5 of the certificate in form 2-NDFL on line 5.7 “Amount of tax not withheld by the tax agent.”
Penalties for late personal income tax
Let us remind you that penalties are calculated for each calendar day of delay as a percentage of the unpaid tax amount. In this case, the day of the end of the period of delay is considered to be the day the tax is paid. With regard to personal income tax amounts that are not possible to withhold, the end date of the period of delay is not so obvious.*
On the issue of excessively withheld personal income tax
Refund of overpayment through the organization
For a refund of over-withheld personal income tax, a person can contact the organization that withheld the tax as a tax agent. To do this, he needs to write a statement in any form addressed to the head of the organization. This is stated in paragraph 1 of Article 231 of the Tax Code of the Russian Federation.*
Tax refunds in cash are not allowed, therefore the application must indicate the bank details of the account to which the tax agent should transfer the excess withheld amount (paragraph 4, paragraph 1, article 231 of the Tax Code of the Russian Federation, letter of the Ministry of Finance of Russia dated February 17, 2011 No. 03- 04-06/9-31).
A person can submit an application for a tax refund within three years from the date of its withholding (Clause 7, Article 78 of the Tax Code of the Russian Federation). At the same time, the right to apply for a tax refund does not depend on the existence of labor (civil) relations between the person and the organization on the date of filing the application.* For example, a person has the right to submit an application for the return of an overly withheld amount to the organization after dismissal from it, but before expiration of the period provided for tax refund. In this case, the tax agent is obliged to return the excessively withheld personal income tax to the dismissed employee. However, confirmation that the tax was not returned by the tax office is not required. Similar clarifications are contained in letters of the Ministry of Finance of Russia dated December 27, 2012 No. 03-04-06/4-370 and dated December 24, 2012 No. 03-04-05/6-1430.
Sources for the return of overpayments may be upcoming payments for personal income tax, withheld and subject to transfer to the budget:*
from the income of the same person who had an overpayment (for example, if an employee from whom the excess amount of personal income tax was withheld continues to work in the organization);
from the income of other taxpayers in relation to whom the organization is a tax agent.
This follows from the provisions of paragraph 3 of paragraph 1 of Article 231 of the Tax Code of the Russian Federation.
The tax rates at which personal income tax was withheld, sent by the organization to return the overpayment, do not matter. For example, a tax calculated at a rate of 13 percent can be returned from personal income tax amounts calculated at rates of 9, 13, 30 or 35 percent. At the same time, tax agents are required to keep separate records of income (personal income tax amounts), for which different tax rates are applied (clause 3 of Article 226 of the Tax Code of the Russian Federation).
Return period
The organization must transfer the repaid amount of the overpayment to the person’s bank account within three months from the date of receipt of his application for refund. If, after this period, the organization does not return the overpayment (in whole or in part) to the taxpayer, then it will have to charge interest on the amount of unrefunded tax for each day of delay. Interest is accrued at the refinancing rates in effect on the days the repayment deadline was missed. This is stated in paragraphs 3–5 of paragraph 1 of Article 231 of the Tax Code of the Russian Federation.*
The organization itself discovered the overpayment
If an organization-tax agent discovers an overpayment of personal income tax on its own, it is obliged to inform the taxpayer about this within 10 working days (paragraph 2, paragraph 1, article 231, paragraph 6, article 6.1 of the Tax Code of the Russian Federation). The Tax Code of the Russian Federation does not provide for the form and method of reporting the presence of an overpayment of personal income tax. Therefore, the tax agent has the right to send a message to the taxpayer in any form. Such clarifications are contained in the letter of the Ministry of Finance of Russia dated May 16, 2011 No. 03-04-06/6-112.*
Refund of overpayment through inspection
Upcoming personal income tax payments may not be enough to return the overly withheld tax amount within the three-month period established by paragraph 3 of paragraph 1 of Article 231 of the Tax Code of the Russian Federation. In this case, the tax agent should apply for a refund of the missing amount to the tax office at the place of his registration.*
An application for the return of an excessively transferred amount of personal income tax must be submitted to the inspectorate within 10 working days from the date of receipt of the application from the taxpayer (paragraph 6, paragraph 1, article 231, paragraph 6, article 6.1 of the Tax Code of the Russian Federation). Therefore, the tax agent must make a decision on the method of returning the overpayment (at the expense of upcoming payments or at the expense of funds returned by the inspection) immediately after receiving the taxpayer’s application (letter of the Ministry of Finance of Russia dated May 16, 2011 No. 03-04-06/6-112). *
The tax inspectorate will return the overpayment of personal income tax to the tax agent organization in the manner established by Article 78 of the Tax Code of the Russian Federation (paragraph 7, clause 1, article 231 of the Tax Code of the Russian Federation). Before the overpayment is credited to the organization's current account, the tax agent has the right to return the excessively withheld amount of personal income tax to the person at his own expense (paragraph 9, clause 1, article 231 of the Tax Code of the Russian Federation).*
If it is decided to return the overpayment using funds returned from the budget, along with the application to the tax office you must submit:*
an extract from the tax register for personal income tax on the employee’s income;
documents confirming the fact of excessive withholding and transfer of personal income tax.
The list of such documents is not established by law. However, in practice, the inspectorate may require the tax agent to:*
a copy of the employee’s application (indicating the reason for the overpayment, the date of its occurrence and the amount);
a copy of the certificate in form 2-NDFL as of the date of application for a refund;
data on settlements with the budget for personal income tax starting from the year for which the tax was recalculated. As a document confirming the data on settlements with the budget for personal income tax, you can submit an extract from account 68 subaccount “Settlements with the budget for personal income tax.” The amount of accruals on the credit of this account must be reversed by the amount of the tax overpayment (so that the amount of the overpayment is visible).
Similar clarifications are contained in the letter of the Ministry of Finance of Russia dated August 9, 2012 No. 03-04-06/6-229.
Sergey Razgulin, Deputy Director of the Department of Tax and Customs Tariff Policy of the Russian Ministry of Finance
Notify the employee of excess tax withholding.
Inform the employee that excess tax has been withheld from him. Deadline: 10 business days from the date of detection of the overpayment. In the message, indicate the amount of personal income tax withheld in excess, as well as the specific date when the overpayment was discovered.
In what form - written or electronic - you will send the message, decide for yourself. But officials recommend that you first find out from the employee himself which message format is more convenient for him (letter of the Ministry of Finance of Russia dated May 16, 2011 No. 03-04-06/6-112). There is no penalty in the Tax Code for failure to report non-withheld personal income tax.
Correct the mistake
Prepare an accounting statement. Record in it the fact that an error was identified. Reflect the recalculation of personal income tax, show the amount of excessively withheld personal income tax. Describe the reasons for the error and how to correct it.
Correct the error in one of two ways, namely by:
- test;
- return.
Method 1. Offsetting the amount of tax over-withheld from the employee.
Tax offset is allowed if:
— the tax period (calendar year) is still ongoing;
— the employee continues to receive income from your company;
— the amount of income that will be accrued before the end of the year is enough to apply an additional amount of deductions.
If these conditions are met, offset the excess tax withheld against future withholdings (until the end of 2016).
Let's show the personal income tax offset using an example.
Example. The employee's salary is 20,000 rubles. per month. Payment dates are the 20th and 5th. The employee has three children under the age of 18. The accountant provided monthly deductions in the amount of 4,200 rubles. (1400 rub. × 3 people).
In September, he discovered that he had incorrectly provided a deduction for the third child instead of 3,000 rubles. — 1400 rub. Over 8 months, the overpayment of tax amounted to 1,664 rubles. [(3000 rub. -1400 rub.) × 8 months. × 13%]. How to conduct a test?
Solution. The accountant offset the over-withheld personal income tax when calculating the tax from the employee’s income for September.
He calculated tax on his salary for September in the amount of 1,846 rubles. ((RUB 20,000 - RUB 5,800) × 13%).
N and he reduced the amount of the overpayment, which is subject to deduction from income and transfer to the budget for September. I paid the difference of 182 rubles to the budget. (1846 rubles - 1664 rubles).
Application of an additional deduction amount of RUB 12,800. [(3000 rubles - 1400 rubles) × 8 months] and the accountant showed the offset of the overly withheld tax in the personal income tax card
Method 2. Return of over-withheld personal income tax.
If it is not possible to offset the over-withheld tax amount or the employee wants to return the overpayment in cash, issue a personal income tax refund.
Employee statement. The basis for the return is a written statement from the employee. It is compiled in any form. The main thing is that the refund application contains the bank details to which the tax must be transferred. After all, it can only be returned in non-cash form by transferring money to a bank account. For example, this could be a salary card account.
Please adhere to the 3 month period. You must remit the over-withheld tax within three months from the date of receipt of the employee’s application. Otherwise, pay the employee interest on the unrefunded amount based on the refinancing rate of the Central Bank of the Russian Federation for each calendar day of delay (clause 1 of Article 231 of the Tax Code of the Russian Federation). You can get your tax refund in several ways. .
Due to the tax withheld from colleagues. The easiest way is to pay the overpayment from tax amounts withheld from the income of other employees, but not yet paid to the budget. This is permitted by Article 231 of the Tax Code of the Russian Federation.
Through inspection. If the amount of excessively withheld tax is large and the amount of tax withheld from the income of other employees is not enough, send an application to your Federal Tax Service for a personal income tax refund on behalf of the company. Submit this application within 10 working days from the date of receipt of the application from the employee. Attach to the company application:
— a copy of the employee’s application for the return of excessively withheld personal income tax;
— an extract from the tax register for personal income tax on the employee’s income;
— documents confirming the fact of excessive withholding and transfer of personal income tax (letter of the Ministry of Finance of Russia dated 08/09/2012 No. 03-04-06/6-229). This can be an account statement 68 subaccount “Settlements with the budget for personal income tax”. The amount of accruals on the credit of this account must be reversed by the amount of the tax overpayment (so that the amount of the overpayment is visible).
When money from the Federal Tax Service arrives in the company’s current account, transfer it to the employee’s account.
Do not submit an update on 6-NDFL
In your reports for the first quarter and half of the year, you reflected the real picture. There is no need to submit updated forms 6-NDFL for these periods.
6-NDFL for 9 months, if overpayment of tax is credited
In line 030, include the additional deduction amount.
In line 040, show the tax calculated taking into account the correct deduction amount
On line 70, reflect the actual tax withheld. You will not be able to show the offset of the overpayment in the report for 9 months. After all, you will withhold tax from income for September only when paying wages in October. The correction will be included in Form 6-NDFL for the year.
In section 2 for 9 months you will reflect the actual information about tax withholding from salaries for June, July and August. Show the actual amounts of tax withheld, that is, excluding corrections.
You will show your salary for September and the recalculation of personal income tax in September in form 6-NDFL for 2016.
If a tax agent has erroneously provided an employee with a standard personal income tax deduction for several months, then the tax should be recalculated at the time the error is discovered. The amount of tax not previously withheld should be withheld upon subsequent payment of income to the taxpayer, subject to the rule of not exceeding 50 percent of the payment amount. The obligation to withhold tax is not related to the end of the tax period. Rationale: According to paragraph 3 of Art. 210 of the Tax Code of the Russian Federation for income in respect of which the tax rate established by paragraph 1 of Art. 224 of the Tax Code of the Russian Federation (by virtue of clause 1 of Article 224 of the Tax Code of the Russian Federation, the established tax rate is 13 percent), the tax base is defined as the monetary expression of such income subject to taxation, reduced by the amount of tax deductions provided for in Art. Art. 218 - 221 of the Tax Code of the Russian Federation, taking into account the features established by this chapter. In particular, paragraphs. 4 paragraphs 1 art. 218 of the Tax Code of the Russian Federation provides for the provision of a tax deduction for each month of the tax period, which, according to Art. 216 of the Tax Code of the Russian Federation recognizes the calendar year. The deduction applies, in particular, to the parent who is supporting the child, in the amounts provided for in this article (for example, 1,400 rubles for the first child). Tax deductions are provided to taxpayers on the basis of their written applications and documents confirming their right to this tax deduction. Clause 3 of Art. 218 of the Tax Code of the Russian Federation provides that standard tax deductions are provided to the taxpayer by one of the tax agents who are the source of payment of income, at the taxpayer’s choice based on his written application and documents confirming the right to such tax deductions. Tax amounts are calculated by tax agents on an accrual basis from the beginning of the tax period based on the results of each month in relation to all income in respect of which the tax rate established by clause 1 of Art. 224 of the Tax Code of the Russian Federation, accrued to the taxpayer for a given period, with offset of the amount of tax withheld in previous months of the current tax period (clause 3 of Article 226 of the Tax Code of the Russian Federation). Clause 4 of Art. 226 of the Tax Code of the Russian Federation provides that tax agents are required to withhold the accrued amount of tax directly from the taxpayer’s income upon their actual payment. In this case, the withheld tax amount cannot exceed 50 percent of the payment amount. In turn, Ch. 23 of the Tax Code of the Russian Federation, in particular the provisions of paragraph 4 of Art. 218 and Art. 231 of the Tax Code of the Russian Federation does not regulate the procedure for recalculating tax in a situation where it is necessary to recalculate tax due to the unjustified provision of a tax deduction, which, accordingly, leads to the tax agent’s failure to withhold personal income tax for the period of its provision. The only thing that was reflected in Art. 231 of the Tax Code of the Russian Federation on the issue of non-withholding of tax by a tax agent, this is the norm of clause 2 (no longer in force as of 01/01/2016), according to which amounts of tax not withheld from individuals or not fully withheld by tax agents are recovered by them from individuals until full repayment by these persons with tax arrears in the manner provided for in Art. 45 of the Tax Code of the Russian Federation. However, based on the systemic interpretation of the provisions of Art. 226 of the Tax Code of the Russian Federation, which determines the procedure for calculating and paying tax by tax agents, the obligation to withhold the accrued amount of tax, the amount of which is affected by standard tax deductions (taken into account when forming the tax base), arises upon the actual payment of income. Accordingly, in our opinion, tax recalculation should be made at the time an error is discovered, since the tax agent’s calculation of tax and, accordingly, its withholding and transfer to the budget will not depend on the fact of the end of the corresponding tax period in which the fact of non-accrual and non-withholding of tax was allowed due to an unjustified reduction in the tax base for standard tax deductions. In our opinion, in this case, the tax agent must take into account the recalculated tax in the tax amounts calculated based on the results of the month in which the error was discovered, and, accordingly, withhold it upon subsequent payment from the taxpayer’s income, subject to the rule of not exceeding the withheld amount of 50 percent of the payment amount .
From January to March 2016, the LLC, when calculating personal income tax, unlawfully provided a standard deduction for a child to an employee. How should the tax be recalculated?
N.G. answered questions. Bugaeva, economist
Standard personal income tax deductions in non-standard situations
Any accountant who calculates wages has to deal with standard deductions for personal income tax. We have collected questions that regularly arise from our readers and provided short answers and recommendations.
Failure to claim deductions from employees may result in a fine
S.T. Privalova, Engels
I do not collect applications for standard deductions from employees - I already know who has one child, who has two, and who has none. A “colleague in the shop” scared me that if there are part-time workers among our employees (and we have such), then I must have applications. Is it so?
The texts of the Ministry of Finance Letters mentioned in the article can be found: section “Financial and personnel consultations” of the ConsultantPlus system (information bank “Financier”): Not having deduction claims at all is dangerous. After all, their presence is one of the prerequisites for providing a deduction. V clause 3 art. 218 Tax Code of the Russian Federation. And in general, you have no right to provide a deduction without an application. e clause 3 art. 218 Tax Code of the Russian Federation.
If the personal income tax for the employee is not paid in full, then in the absence of an application for deduction, tax liability will be faced by your organization. And Art. 123 Tax Code of the Russian Federation. Therefore, in order to avoid disputes with inspectors, you must have at least one “unlimited” application from each employee to whom you provide a deduction s Letter of the Ministry of Finance of Russia dated 08.08.2011 No. 03-04-05/1-551.
Documents for deduction are the concern of the employee himself
M.D. Golentsova, Moscow
In 2010, our employee’s husband died. She became the only parent of the child, but we did not provide her with a double deduction for personal income tax, since we did not receive either an application or supporting documents from her. She recently brought an application for a double deduction to the accounting department and promised to complain to her superiors that we did not inform her of her right to a larger deduction. Is an accountant required to annually remind employees of the need to submit documents confirming their right to tax deductions?
We warn employees
Notify accounting department the emergence of the right to any standard deduction for personal income tax workers must independently.
: Of course, if an employee has had serious changes in his personal life that affect the calculation of taxes, and the accountant knows about them, then it is better to tell the employee about the possibility of receiving a larger deduction and the documents required for this X subp. 4 paragraphs 1 art. 218 Tax Code of the Russian Federation. But an accountant is not required to conduct such tax education. After all, the use of a deduction is an employee’s right, which he can use or not.
Considering that the employee’s husband died last year, you can advise her to contact the inspectorate at her place of residence for a refund of the overpayment of personal income tax for 2010 .clause 4 art. 218, paragraph 2 of Art. 229, Art. 78 Tax Code of the Russian Federation And you can recalculate personal income tax on income for 2011 and return it to her upon her application.
In case of a late application for deduction, personal income tax can be recalculated
E.V. Gvozdeva, Yaroslavl
In January, two employees were hired. And this year they were not provided with standard personal income tax deductions: neither for themselves nor for their children. And in August, both brought applications for deductions. What should we do now: start providing deductions in August or recalculate from the beginning of the year?
: To be more certain, we forwarded this question to tax service specialists.
From authoritative sources
Advisor to the Individual Taxation Department of the Taxation Directorate of the Federal Tax Service of Russia
“If an employee submitted an application for a personal income tax deduction in the middle of the year, that is, later than he had the right to a deduction, then the employer decides whether to provide him with a deduction from the beginning of the year or not. And from the month when the application for the deduction was received, he is obliged to provide it, but only if the condition on the limit of total income for the corresponding standard deduction is met at subp. 3, 4 p. 1 art. 218 Tax Code of the Russian Federation” .
As you can see, there are two options.
OPTION 1. Recalculate personal income tax. Moreover, according to the Tax Code of the Russian Federation, the right to a deduction does not depend on the month in which the application is submitted, and the deadline for filing such an application is also not established. Then, upon the employee’s application for a personal income tax refund, you return the required amount of tax to him A clause 1 art. 231 Tax Code of the Russian Federation, while simultaneously reducing the personal income tax transferred to the budget for this and other employees by the same amount.
OPTION 2. Start providing deductions from the month when the application was received, if you don't want to count anything. As a result, during the year the employee may be deducted a larger amount of personal income tax than if the deduction had been provided from the beginning of the year. He will be able to return the excess tax withheld from him to his inspectorate after the end of the year. To do this, the tax officer will need to submit a declaration, application and documents confirming the right to the deduction. T clause 4 art. 218, paragraph 2 of Art. 229, Art. 78 Tax Code of the Russian Federation.
A deduction for a disabled child is provided from the month the disability was established.
T.S. Mortkovich, Novosibirsk
One of our employees has a disabled child. The disability certificate was issued on May 12, 2011, and he brought it to us in August 2011 along with an application for the return of personal income tax for May - July. Is it possible to provide an employee with a double deduction for a child from May?
: Can. What is important here is date of disability determination. The employee receives the right to a double deduction not from the month the application was submitted to you and not from the date the certificate was issued, but precisely from the moment when his child was recognized as disabled (this date is indicated in the certificate )subp. 4 paragraphs 1 art. 218 Tax Code of the Russian Federation; Art. 1 of the Federal Law of November 24, 1995 No. 181-FZ “On the social protection of disabled people in the Russian Federation”; pp. 11, 36 Rules for recognizing a person as disabled, approved. Decree of the Government of the Russian Federation dated February 20, 2006 No. 95; Appendix No. 1 to the Order of the Ministry of Health and Social Development of Russia dated November 24, 2010 No. 1031n. An employee can receive deductions due to him from the month of establishment of disability:
- <или>with your help thanks recalculation at clause 1 art. 231 Tax Code of the Russian Federation;
- <или>by contacting your tax office Yu clause 4 art. 218, Art. 78, paragraph 2 of Art. 229 Tax Code of the Russian Federation.
The only parent of a disabled child receives a four-fold personal income tax deduction
M.L. Filchenkova, Vyborg
Our employee is the only parent of a disabled child. What is the amount of personal income tax deduction in this case? What deduction code should be indicated in the 2-NDFL certificate?
: For a disabled child of 1000 rubles, the deduction is doubled. Also, the child’s only parent is entitled to a double child deduction. T subp. 4 paragraphs 1 art. 218 Tax Code of the Russian Federation. Therefore, your employee needs to provide a deduction of 4,000 rubles. (RUB 1000 x 2 x 2 )Letter of the Federal Tax Service of Russia for Moscow dated January 19, 2009 No. 18-14/002387@; Clause 1 Letter of the Federal Tax Service of Russia dated 08.08.2008 No. 3-5-04/380@; Letter of the Ministry of Finance of Russia dated March 17, 2005 No. 03-05-01-03/20 up to the month in which her cumulative income from the beginning of the year reaches 280,000 rubles.
In the certificate on form No. 2-NDFL you will need to indicate the deduction code “112 » Appendix No. 4 to the Directory “Deduction Codes”, approved. By Order of the Federal Tax Service of Russia dated November 17, 2010 No. ММВ-7-3/611@.
The current employer cannot provide a deduction in place of the former
S.Yu. Zelenskaya, Sergiev Posad
In July, we hired an employee who quit his last job on January 14, 2011. He brought a 2-NDFL certificate, which shows that in 2011 he was not provided with standard deductions. Can we provide an employee with standard deductions that he did not receive this year from his previous employer, and deductions that he did not receive while he was not working anywhere?
We warn the employee
If the former employer did not provide deductions, then you can return the tax paid on that income only through your inspectorate.
: No, you have no right to do this. The tax agent calculates personal income tax and provides deductions only:
- from those amounts of income the source of which it is;
- for the amounts of tax that he himself withholds l pp. 2, 3 tbsp. 226, paragraph 1, art. 231 Tax Code of the Russian Federation.
If there is no labor relationship between the organization and the individual, then we can’t talk about deductions. T Letter of the Federal Tax Service of Russia dated March 15, 2006 No. 04-1-04/154. And the employee will be able to receive deductions that were not provided by another employer during the “unemployed” period after the end of the calendar year A clause 4 art. 218, Art. 78, paragraph 2 of Art. 229 Tax Code of the Russian Federation.
The deduction also applies to interest on a loan from a resident.
A.K. Gomozova, Moscow
Is it possible to provide a participant of our LLC (resident) with a standard child deduction when paying him interest on a loan received from him?
: Yes. After all, interest on loans paid to residents is subject to personal income tax at a rate of 13 %clause 3 art. 43, subp. 1 clause 1 art. 208, Art. 224 Tax Code of the Russian Federation. This means that this income can be reduced by the standard deduction T clause 3 art. 210, sub. 4 paragraphs 1 art. 218 Tax Code of the Russian Federation. In this case, you need to receive from the participant an application for a deduction and documents confirming the right to it. O clause 3 art. 218 Tax Code of the Russian Federation.
Participation in the activities of special risk units gives the right to a monthly deduction of 3,000 rubles.
I.E. Bakaneva, Chelyabinsk
Our employee wrote a statement that, according to Decree of the Government of the Russian Federation No. 958 of December 11, 1992 (concerning participants in nuclear weapons tests, liquidators of radiation accidents, etc.), his wages are exempt from paying all taxes. Is it possible, on the basis of this Resolution, not to withhold personal income tax from an employee’s salary and not to make deductions to extra-budgetary funds? Or is he entitled to regular tax benefits?
: Let's start with the fact that in this Resolution there is not a word about tax benefits X Criteria for the direct participation of citizens in the actions of special risk units, approved. Decree of the Government of the Russian Federation dated December 11, 1992 No. 958. But if the employee has a document confirming that he belongs to a category such as citizens from special-risk units, in particular, a certificate of a veteran of a special-risk unit A Art. 15 Law of the Russian Federation dated May 15, 1991 No. 1244-1 “On the social protection of citizens exposed to radiation as a result of the disaster at the Chernobyl nuclear power plant”; Clause 2 of the Resolution of the Armed Forces of the Russian Federation dated December 27, 1991 No. 2123-1, then he is entitled to a standard personal income tax deduction in the amount of 3,000 rubles. monthly O subp. 1 clause 1 art. 218 Tax Code of the Russian Federation. There are no income restrictions for this deduction.
As for insurance premiums, no benefits are provided for income paid to participants in the activities of special risk units. This means that contributions must be calculated according to general rules and tariffs, as in relation to your other employees. V Part 1 Art. 7, Art. 9, part 2 art. 12 of the Federal Law of July 24, 2009 No. 212-FZ “On insurance premiums...”.
If the employee’s income is less than the amount of deductions, personal income tax does not need to be withheld
A.N. Kirillova, Shuya
Recently they hired an employee at 0.3 rate with a salary of 1900 rubles. In addition, she is entitled to monthly deductions: for herself - 400 rubles. and for two minor children - 1000 rubles each. How to withhold personal income tax?
: No way. The amount of the employee’s income throughout the year will be less than the amount of deductions she is entitled to. In such a situation, the tax base for personal income tax is zero. Yu clause 3 art. 210 Tax Code of the Russian Federation, accordingly, you do not have to withhold tax. But you still need to submit a 2-NDFL certificate for the employee at the end of the year b clause 2 art. 230 Tax Code of the Russian Federation. And you also need to keep a tax register for it.
The standard deduction applies to the amount of all income for the month
K.O. Bespalova, St. Petersburg
The employee went on vacation for 28 calendar days from February 14, 2011. Vacation pay and wages for January were transferred on February 7, 2011 and in the amount did not exceed 40,000 rubles. But taking into account wages for February, the employee’s total income since the beginning of the year exceeded 40,000 rubles. When paying vacation pay, was it necessary to provide him with a standard deduction (400 rubles) for February?
: The date on which holiday pay is received is the date on which it is paid. And although vacation pay is the employee’s February income A ; ; , there was no need to provide a 400-ruble deduction for February. After all, the deduction is provided taking into account the total amount of income for the month. And in total, vacation pay and salary for February exceeded 40,000 rubles .subp. 3 p. 1 art. 218 Tax Code of the Russian Federation
No deduction for the next year will be provided in advance.
E.N. Astakhova, Voronezh
Our employee went on vacation and was subsequently fired on January 11, 2011. Vacation pay was paid to her and personal income tax on it was transferred to the budget on December 30, 2010. When calculating personal income tax from vacation pay for January, we provided her with a standard deduction for a child for January (by December 2010 . the employee has lost the right to standard deductions for this year). Did we do the right thing?
: No. Vacation pay paid - employee's December income A Letter of the Federal Tax Service of Russia for Moscow dated March 23, 2010 No. 20-15/3/030267@; Letter of the Federal Tax Service of Russia dated April 10, 2009 No. 3-5-04/407@; Letter of the Ministry of Finance of Russia dated March 6, 2008 No. 03-04-06-01/49. And if by December 2010 the employee had already lost the right to a child deduction, then there was no reason to apply the deduction to her vacation pay, even if paid for January O subp. 4 paragraphs 1 art. 218 Tax Code of the Russian Federation. For the first time in 2011, the deduction could only be applied to the employee's salary (or other income) for January.
Please note that such incorrect provision of a deduction may lead to the accrual of penalties and fines, albeit minor ones. A pp. 1, 7 tbsp. 75, Art. 123 Tax Code of the Russian Federation. After all, you withheld and transferred tax to the budget in a smaller amount than you should have.
If one of the spouses is unemployed, the other is not entitled to a double deduction.
A.M. Dynina, Vladimir
The employee’s wife does not work and stays at home with the child. Does he have the right to take advantage of the standard child deduction at double the rate?
: No. If a child has both parents, the mother or father can claim a double deduction only if one parent waives his or her deduction in favor of the other. But, according to the Ministry of Finance, such a refusal is possible only when this parent has income taxed at rate 13 %Letters of the Ministry of Finance of Russia dated March 25, 2011 No. 03-04-05/7-186, dated February 27, 2009 No. 03-04-05-01/85.
Tax officials believe that the main condition for refusing the deduction is the existence of an employment relationship between the employee and the employer. m Letter of the Federal Tax Service of Russia dated March 4, 2009 No. 3-5-03/233@. Therefore, if one of the employees is on parental leave or has taken leave without pay, then he can refuse to receive a deduction in favor of his spouse. If it does not work at all, then such a refusal is impossible.
Even if a full-time student works, the parent is still provided with a child deduction
NOT. Pankratova, Astrakhan
The adult child of our employee got a job at our company. He is not yet 24 years old and is a full-time student. Should we still provide his parent with the standard deduction of RUB 1,000?
: Must. Since in such a situation all conditions for providing a child deduction to the parent are met Yu subp. 4 paragraphs 1 art. 218 Tax Code of the Russian Federation. After all, there is not a word in the Tax Code of the Russian Federation that the child should not work. This position is confirmed by specialists from the Federal Tax Service of Russia.
From authoritative sources
“Prohibitions on providing a parent with a deduction for a working child - a full-time student under 24 years of age - the provisions of Art. 218 of the Tax Code of the Russian Federation do not contain. Moreover, such a student himself can also claim the usual standard deduction for himself in the amount of 400 rubles. monthly O subp. 3 p. 1 art. 218 Tax Code of the Russian Federation” .
Federal Tax Service of Russia
Therefore, if a child both studies and works, a child deduction can be provided to the employee in the same way as to any other employee.
6-NDFL when recalculating standard deductions, how to apply? From our material you will learn why there is a need to recalculate deductions and how to reflect this in the 6-NDFL report.
What are standard deductions called and why are they recalculated?
Standard deductions (SD) are:
- established by Art. 218 of the Tax Code of the Russian Federation, amounts that reduce the income received by an individual when determining the tax base for personal income tax;
- one of the types of tax deductions (along with social, property, etc.) used in calculating personal income tax.
Are deductions applicable when calculating other taxes? You will find the answer in the material “What are VAT tax deductions?” .
To receive SV, you must:
- receive income taxed with personal income tax at a rate of 13% (persons receiving only income exempt from personal income tax, or only income from dividends, or income taxed at other rates cannot apply for SV);
- be a resident for personal income tax purposes (stay in our country for more than 183 days for 12 consecutive months).
Indicated in Art. 218 of the Tax Code of the Russian Federation, deductions are fixed - established by tax legislation in fixed amounts depending on the category of taxpayer:
- 3,000 rub. — for Chernobyl victims, disabled people of the Second World War, etc.;
- 500 rub. — for heroes of Russia, former prisoners of concentration camps, etc.;
- 1,400, 3,000, 6,000, 12,000 rub. - “children’s” deductions.
Read about how to get a “children’s” deduction .
It should be noted that receiving SV is an employee’s right:
- which he may not use or apply for it not from the beginning of the calendar year;
- which cannot be used in the absence of supporting documents and an application from the potential recipient of the deduction.
A sample application for a standard deduction can be downloaded.
These reasons may serve as a reason to recalculate the SV. In addition, the need for recalculation may arise in other cases - for example, if an employee acquired resident status during the year or an error was identified in the calculations.
We will tell you how to reflect the fact of recalculation of deductions in 6-NDFL in the next section.
An employee is late with documents: how to recalculate deductions and reflect personal income tax
If an employee has the right to standard tax deductions (for example, “children’s”), but did not take care to provide supporting documents in a timely manner and (or) delayed submitting the application, the deduction will not be provided to him.
As a result, he loses his money, since personal income tax will be withheld from his income in large amounts.
However, an employee can easily correct this situation by asking his employer for standard deductions.
The employer must:
- start providing standard deductions from the month in which the entire package of supporting documents and the application for deduction are submitted to the accounting department;
- recalculate deductions from the beginning of the year.
In this case, it will be necessary to take into account the limitation established by subsection. 4 paragraphs 1 art. 218 of the Tax Code of the Russian Federation: in 2019, the “children’s” deduction is provided only until the employee’s income exceeds 350,000 rubles.
If the “income” threshold is exceeded, no deductions are provided, and the employee will be able to return the excess tax withheld by contacting the tax authorities at the end of the year (Article 78, paragraph 4 of Article 218 of the Tax Code of the Russian Federation). 6-NDFL will reflect only the income received by the employee and personal income tax (calculated and withheld) without taking into account deductions.
If the threshold is not exceeded, in 6-NDFL you must:
- reflect the deduction on line 030;
- Personal income tax is calculated using the formula: (line 020 - line 030) / 100 × line 010.
The same algorithm for filling out 6-NDFL is used if it is decided to provide deductions from the beginning of the year (or from the moment the right to do so is obtained). Let's look at this situation with an example.
Example
Turner Trifonov N.Yu. (monthly earnings 80,000 rubles) had a daughter in February 2019. He applied for the “children’s” deduction only in September 2019. The employer decided to recalculate personal income tax taking into account deductions from February 2019 - the moment the employee’s right to a deduction arose.
In 6-NDFL for 9 months of 2019, deductions will go to line 030 in the amount of 4,200 rubles. (1,400 rubles × 3 months, where 3 months is the period during which the employee’s income did not exceed 350,000 rubles).
Personal income tax calculated from N. Yu. Trifonov’s income for 9 months (p. 040) will amount to 93,054 rubles: (80,000 rubles × 9 months - 4,200 rubles) × 13%.
At the same time, the withheld personal income tax (line 070) for the specified period amounted to 93,600 rubles. (RUB 80,000 × 9 months × 13%).
The employer is obliged to return the excessively withheld tax to Trifonov N.Yu. at his request (clause 1 of Article 231 of the Tax Code of the Russian Federation), reducing the personal income tax transferred to the budget for the rest of the company’s employees by the same amount. The refund amount in 6-NDFL will be reflected on line 090.
Read how to return over-withheld personal income tax to an employee.
Results
Standard deductions can be taken by the persons listed in Art. 218 Tax Code of the Russian Federation.
In 6-NDFL, recalculation of deductions can occur for various reasons: a belated application by an individual to a tax agent with a request for standard deductions, acquisition of resident status by an employee, etc.