St 255 NK RF sick leave. "Vacation" expenses for income tax purposes
Which paragraph of article 255 of the Tax Code of the Russian Federation includes allowances and bonuses?
The allowances established at the initiative of the organization are paragraph 25 of Art. 255 "other types of expenses incurred in favor of the employee, provided for by the employment contract and (or) the collective agreement." Prizes - paragraph 2 of Art. 255 "incentive accruals, including performance bonuses". Some types of allowances (depending on their type) may also apply to paragraph 2 of Art. 255.
The rationale for this position is given below in the materials of the System Glavbukh
BASIC
Additional payments and allowances established by the organization, take into account as part of the cost of wages, if they:
- provided for in labor and (or) collective agreements (paragraph 1, paragraph 2, paragraph 25 of article 255 of the Tax Code of the Russian Federation); *
- meet the requirements tax code RF. This approach is confirmed by the Ministry of Finance of Russia in letters dated July 27, 2010 No. 03-03-06 / 1/489, dated July 21, 2010 No. 03-03-06 / 1/474.
If the organization uses the accrual method, the moment of recognition of expenses in the form of surcharges (surcharges) depends on whether they relate to direct or indirect expenses. Indirect costs are recognized at the time of accrual (clause 2, article 318, clause 4, article 272 of the Tax Code of the Russian Federation). Direct costs are taken into account as the sale of products, works, services, in the cost of which they are taken into account (paragraph 2, clause 2, article 318 of the Tax Code of the Russian Federation). Organizations providing services can take into account direct costs at the time of their accrual (paragraph 3, clause 2, article 318 of the Tax Code of the Russian Federation).
As a rule, surcharges and allowances are related to indirect costs (, para. 3, article 320 of the Tax Code of the Russian Federation). An exception is additional payments (allowances) paid to employees engaged in the production of products, the performance of work or the provision of services (for example, additional payments to the salary of production workers). They are direct costs. Such rules are established in paragraph 1 of Article 318 of the Tax Code of the Russian Federation.
Situation: can production organization include all additional payments and allowances established on one's own initiative as indirect expenses when calculating income tax (mod = 112, id = 45101)
No, he can not.
Organizations independently determine the list of direct expenses (clause 1 of article 318 of the Tax Code of the Russian Federation, letters of the Ministry of Finance of Russia dated January 26, 2006 No. 03-03-04 / 1/60 and the Federal Tax Service of Russia dated February 24, 2011 No. KE-4-3 / 2952). However, the division of costs into direct and indirect should be economically justified. Otherwise, tax inspectors can recalculate income tax.
Thus, additional payments and allowances accrued to employees directly involved in production should be taken into account as part of direct costs. Surcharges (surcharges) established by the administration of the organization, refer to indirect costs.
N.Z. Kovyazin
deputy director of the department wages, labor protection and social partnership of the Ministry of Health and Social Development of Russia
Income tax: general procedure
Consider the amount of monthly (quarterly) bonuses as part of the cost of wages, while meeting two conditions:
- bonuses are provided for by the labor and (or) collective agreement (paragraph 1 of article 255, paragraph 21 of article 270 of the Tax Code of the Russian Federation);
- bonuses paid for performance
- Chapter 5. TAX AUTHORITIES. CUSTOMS. FINANCIAL AUTHORITIES. RESPONSIBILITY OF TAX AUTHORITIES, CUSTOMS AUTHORITIES AND THEIR OFFICIALS
- Chapter 6. BODIES OF THE INTERNAL AFFAIRS. INVESTIGATING AUTHORITIES (as amended by Federal Laws No. 86-FZ of 30.06.2003, No. 404-FZ of 28.12.2010)
- Chapter 7. OBJECTS OF TAXATION
- Chapter 8. PERFORMANCE OF THE OBLIGATION TO PAY TAXES, FEES AND INSURANCE PREMIUMS
- Chapter 10
- Chapter 11
- Chapter 12
- Chapter 13. TAX DECLARATION
- Chapter 14. TAX CONTROL
- Chapter 14.1. RELATED PERSONS. PROCEDURE FOR DETERMINING THE SHARE OF PARTICIPATION OF ONE ORGANIZATION IN ANOTHER ORGANIZATION OR AN INDIVIDUAL IN THE ORGANIZATION
- Chapter 14.2. GENERAL PROVISIONS ON PRICES AND TAXATION. INFORMATION USED IN COMPARISONING THE TERMS OF TRANSACTIONS BETWEEN RELATED PARTIES WITH THE TERMS OF TRANSACTIONS BETWEEN PERSONS NOT RELATED
- Chapter 14.3. METHODS USED IN DETERMINATION FOR TAX PURPOSES OF INCOME (PROFIT, REVENUE) IN TRANSACTIONS TO WHICH PARTIES ARE RELATED PERSONS
- Chapter 14.4. CONTROLLED TRANSACTIONS. PREPARATION AND SUBMISSION OF DOCUMENTATION FOR THE PURPOSE OF TAX CONTROL. NOTICE OF CONTROLLED TRANSACTIONS
- Chapter 14.4-1. SUBMISSION OF DOCUMENTATION FOR INTERNATIONAL GROUPS OF COMPANIES (introduced by Federal Law No. 340-FZ of November 27, 2017)
- Chapter 14.5. TAX CONTROL IN CONNECTION WITH TRANSACTIONS BETWEEN RELATED PARTIES
- Chapter 14.6. PRICING AGREEMENT FOR TAX PURPOSES
- Chapter 14.7. TAX MONITORING. REGULATIONS OF INFORMATION INTERACTION
- Chapter 14.8. PROCEDURE FOR TAX MONITORING. MOTIVATED OPINION OF THE TAX AUTHORITY
- Chapter 15. GENERAL PROVISIONS ON LIABILITY FOR TAX OFFENSES
- Chapter 16. TYPES OF TAX VIOLATIONS AND RESPONSIBILITY FOR THEIR COMPLETION
- Chapter 17. COSTS ASSOCIATED WITH THE IMPLEMENTATION OF TAX CONTROL
- Chapter 18
- Chapter 19
- Chapter 20. CONSIDERATION OF A COMPLAINT AND DECISION ON IT
- Chapter 20.1. AUTOMATIC EXCHANGE OF FINANCIAL INFORMATION
- Chapter 20.2. INTERNATIONAL AUTOMATIC EXCHANGE OF COUNTRY REPORTS IN ACCORDANCE WITH THE INTERNATIONAL AGREEMENTS OF THE RUSSIAN FEDERATION (introduced by Federal Law No. 340-FZ of November 27, 2017)
- Chapter 20.3. MUTUALLY AGREED PROCEDURE IN ACCORDANCE WITH THE INTERNATIONAL TAXATION TREATMENT OF THE RUSSIAN FEDERATION (introduced by Federal Law No. 325-FZ of September 29, 2019)
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Section VIII. FEDERAL TAXES
- Chapter 21. VALUE ADDED TAX
- Chapter 22. EXCISES
- Chapter 23. TAX ON INCOME OF INDIVIDUALS
- Chapter 24. UNIFIED SOCIAL TAX (ARTICLES 234 - 245) Repealed from January 1, 2010. - Federal Law of July 24, 2009 N 213-FZ.
- Chapter 25. TAX ON INCOME OF ORGANIZATIONS
- Chapter 25.1. FEES FOR THE USE OF ANIMAL WORLD OBJECTS AND FOR THE USE OF WATER BIOLOGICAL RESOURCES OBJECTS (introduced by Federal Law No. 148-FZ of November 11, 2003)
- Chapter 25.2. WATER TAX (introduced by Federal Law No. 83-FZ of July 28, 2004)
- Chapter 25.3. STATE DUTIES (introduced by Federal Law No. 127-FZ of November 2, 2004)
- Chapter 25.4. TAX ON ADDITIONAL INCOME FROM THE PRODUCTION OF RAW HYDROCARBONS (introduced by Federal Law No. 199-FZ of July 19, 2018)
- Chapter 26. TAX ON EXTRACTION OF MINERAL RESOURCES
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Section VIII.1. SPECIAL TAX REGIME (introduced by Federal Law No. 187-FZ of December 29, 2001)
- Chapter 26.1. TAXATION SYSTEM FOR AGRICULTURAL PRODUCERS (SINGLE AGRICULTURAL TAX) (as amended by Federal Law No. 147-FZ of November 11, 2003)
- Chapter 26.2. SIMPLIFIED TAXATION SYSTEM (introduced by Federal Law No. 104-FZ of July 24, 2002)
- Chapter 26.3. TAXATION SYSTEM IN THE FORM OF A SINGLE TAX ON IMPUTED INCOME FOR CERTAIN TYPES OF ACTIVITIES (introduced by Federal Law No. 104-FZ of July 24, 2002)
- Chapter 26.4. TAXATION SYSTEM FOR THE IMPLEMENTATION OF PRODUCT SHARED AGREEMENTS (introduced by Federal Law No. 65-FZ of June 6, 2003)
- Chapter 26.5. PATENT TAXATION SYSTEM (introduced by Federal Law No. 94-FZ of June 25, 2012)
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Section IX. REGIONAL TAXES AND FEES (introduced by Federal Law No. 148-FZ of November 27, 2001)
- Chapter 27. SALES TAX (ARTICLES 347 - 355) Repealed. - Federal Law of November 27, 2001 N 148-FZ.
- Chapter 28. TRANSPORT TAX
- Chapter 29. TAX ON GAMBLING BUSINESS
- Chapter 30. TAX ON PROPERTY OF ORGANIZATIONS
- Section X. LOCAL TAXES AND FEES (as amended by Federal Law No. 382-FZ of 29 November 2014)
- Chapter 31. LAND TAX
- Chapter 32. TAX ON PROPERTY OF INDIVIDUALS
- Chapter 33
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Section XI. INSURANCE PREMIUM IN THE RUSSIAN FEDERATION (introduced by Federal Law No. 243-FZ of July 3, 2016)
- Chapter 34. INSURANCE PREMIUM
Article 255 of the Tax Code of the Russian Federation. Labor costs
The taxpayer's labor costs include any accruals to employees in cash and (or) natural forms, incentive accruals and allowances, compensatory accruals related to the mode of work or working conditions, prizes and one-time incentive accruals, expenses related to the maintenance of these employees, provided for by the legislation Russian Federation, labor agreements (contracts) and (or) collective agreements.
Labor costs for the purposes of this chapter include, in particular:
1) amounts accrued at tariff rates, official salaries, piece rates or as a percentage of proceeds in accordance with the forms and systems of remuneration adopted by the taxpayer;
2) accruals of a stimulating nature, including bonuses for production results, allowances for tariff rates and salaries for professional skills, high achievements in labor and other similar indicators;
3) accruals of a stimulating and (or) compensatory nature related to the mode of work and working conditions, including allowances for tariff rates and salaries for night work, multi-shift work, for combining professions, expanding service areas, for working in difficult, harmful, especially harmful working conditions, for overtime work and work on weekends and holidays produced in accordance with the legislation of the Russian Federation;
4) the cost of free of charge provided to employees in accordance with the legislation of the Russian Federation utilities, food and products provided to the taxpayer's employees in accordance with the procedure for free housing established by the legislation of the Russian Federation (the amount of monetary compensation for the failure to provide free housing, utilities and other similar services);
5) expenses for the acquisition (manufacturing) of uniforms and uniforms (in part of the cost not compensated by employees) that are issued in accordance with the legislation of the Russian Federation to employees free of charge or sold to employees at reduced prices, which remain in the personal permanent use of employees. In the same manner, expenses for the acquisition or manufacture of uniforms and footwear by the organization, which indicate that employees belong to this organization, are taken into account;
6) the amount accrued to employees average earnings retained for the period of fulfillment by them of state and (or) public duties and in other cases provided for by the legislation of the Russian Federation on labor;
7) expenses in the form of average earnings retained by employees for the period of vacation provided for legislation of the Russian Federation, the actual expenses for paying for the travel of employees and persons who are dependent on these employees to the place of use of the vacation in the territory of the Russian Federation and back (including the expenses for paying for the transportation of luggage for employees of organizations located in the regions Far North and equivalent areas) in the manner prescribed by current legislation- for organizations financed from the relevant budgets and in the manner prescribed by the employer - for other organizations, additional payment to minors for reduced working hours, expenses for paying breaks in work for mothers to feed a child, as well as expenses for paying time associated with passing medical examinations;
8) monetary compensation for unused vacation in accordance with labor legislation Russian Federation;
9) accruals to dismissed employees, including in connection with the reorganization or liquidation of the taxpayer, reduction in the number or staff of the taxpayer's employees. For the purposes of this paragraph, accruals to dismissed employees are recognized, in particular, severance benefits paid by the employer upon termination of the employment contract, provided for by employment contracts and (or) separate agreements of the parties to the employment contract, including agreements on termination of the employment contract, as well as collective agreements, agreements and local regulations containing labor law norms;
10) one-time remuneration for length of service (bonuses for length of service in the specialty) in accordance with legislation Russian Federation;
11) allowances due to regional regulation of wages, including accruals for district coefficients and coefficients for work in severe natural and climatic conditions;
12) allowances for continuous work experience in the regions of the Far North and equivalent areas, in regions of the European North and other regions with severe natural and climatic conditions;
12.1) the cost of travel at actual expenses and the cost of carrying luggage at the rate of not more than 5 tons per family at actual expenses, but not higher than the tariffs provided for transportation by rail to an employee of an organization located in the regions of the Far North and equivalent areas (in the absence of railway these expenses are accepted in the amount of the minimum cost of air travel), and to members of his family in the event of moving to a new place of residence in another locality in connection with the termination of an employment contract with an employee for any reason, including in the event of his death, with the exception of dismissal for wrongdoing;
13) expenses in the form of average earnings kept in accordance with legislation the Russian Federation for the period of study holidays provided to employees of the taxpayer, as well as the cost of travel to and from the place of study;
14) labor costs for time forced absenteeism or the time of performance of lower-paid work in cases provided for by the legislation of the Russian Federation;
16) amounts of payments (contributions) of employers under contracts compulsory insurance, the amount of employer contributions paid in accordance with the Federal law"On additional insurance premiums for funded pension and state support formation pension savings", as well as the amounts of payments (contributions) of employers under contracts voluntary insurance(contracts of non-state pension provision) concluded in favor of employees with insurance organizations (non-state pension funds) that have licenses issued in accordance with the legislation of the Russian Federation to conduct relevant types of activities in the Russian Federation.
In cases of voluntary insurance (non-state pension provision), the indicated amounts relate to labor costs under contracts:
life insurance, if such contracts are concluded for a period of at least five years with Russian insurance organizations that have licenses to conduct the relevant type of activity, and during these five years do not provide for insurance payments, including in the form of annuities and (or) annuities, for exclusion of insurance payments in cases of death and (or) infliction of harm to the health of the insured person;
non-state pension provision, subject to the application of a pension scheme that provides for accounting pension contributions on personal accounts of participants in non-state pension funds, and (or) voluntary pension insurance if the participant and (or) the insured person has pension grounds provided for by the legislation of the Russian Federation, giving the right to establish a state pension provision and (or) insurance pension, and during the period of validity of the pension bases. At the same time, non-state pension insurance agreements should provide for the payment of pensions until the funds on the participant's personal account are exhausted, but for at least five years, or for life, and voluntary pension insurance agreements - the payment of pensions for life;
voluntary personal insurance employees, concluded for a period of at least one year, providing for the payment by insurers of medical expenses of insured employees;
voluntary personal insurance, providing for payments only in cases of death and (or) infliction of harm to the health of the insured person.
The total amount of employer contributions paid in accordance with the Federal law"On additional insurance contributions for funded pensions and state support for the formation of pension savings", and payments (contributions) of employers paid under contracts of long-term life insurance of employees, voluntary pension insurance and (or) non-state pension provision of employees, is taken into account for tax purposes in the amount not exceeding 12 percent of the amount of labor costs.
In the event that changes are made to the terms of a life insurance contract, as well as a voluntary pension insurance contract and (or) a contract of non-state pension provision in respect of individual or all insured employees (participants), if as a result of such changes the terms of the contract cease to comply with the requirements of this paragraph, or in in the event of termination of these contracts in respect of individual or all insured employees (participants), the employer's contributions under such contracts in respect of the relevant employees, previously included in expenses, are recognized as subject to taxation from the date such changes are made to the terms of these contracts and (or) the reduction of the validity period of these contracts or their termination (except for cases early termination contract due to force majeure circumstances, that is, extraordinary and unavoidable circumstances).
Contributions under voluntary personal insurance contracts, which provide for the payment by insurers of medical expenses of insured employees, expenses of employers under contracts for the provision of medical services concluded in favor of employees for a period of at least one year from medical organizations who have the appropriate licenses to carry out medical activities, issued in accordance with the legislation of the Russian Federation, and the costs specified in paragraph 24.2 of this part, in the aggregate may not exceed 6 percent of the amount of labor costs.
Contributions under voluntary personal insurance contracts that provide for payments only in cases of death and (or) injury to the health of the insured person are included in expenses in an amount not exceeding 15,000 rubles per year, calculated as the ratio total amount contributions paid under the said contracts to the number of insured employees.
22) accruals provided for by the legislation of the Russian Federation for military personnel serving in state unitary enterprises and in construction organizations federal bodies executive power, in which the legislation of the Russian Federation provides for military service, and employees of internal affairs bodies, institutions and bodies of the penitentiary system, the federal fire service of the State Fire Service, persons serving in the troops of the National Guard of the Russian Federation and having special police ranks;
23) additional payments to disabled people provided for by the legislation of the Russian Federation;
24) expenses in the form of deductions to the reserve for the upcoming payment of vacations to employees and (or) to the reserve for the payment of annual remuneration for length of service and based on the results of work for the year, carried out in accordance with article 324.1 of this Code;
24.1) expenses for reimbursement of employees' expenses for the payment of interest on loans (credits) for the acquisition and (or) construction living quarters. These expenses for taxation purposes are recognized in the amount not exceeding 3 percent of the amount of labor costs;
24.2) expenses for payment for services for the organization of tourism, sanatorium treatment and recreation on the territory of the Russian Federation in accordance with treaty on the sale of the tourist product provided to employees, their spouses, parents, children (including adopted children) under the age of 18, wards under the age of 18, as well as children (including adopted children) under the age of 24 studying full-time education in educational organizations, former ward (after the termination of guardianship or guardianship) under the age of 24, studying full-time education in educational organizations.
For the purposes of this paragraph, the following services rendered under an agreement on the sale of a tourist product concluded by an employer with a tour operator or travel agent are recognized as services for the organization of tourism, sanatorium treatment and recreation on the territory of the Russian Federation:
services for the transportation of a tourist through the territory of the Russian Federation by air, water, road and (or) rail to the destination and back, or along another route agreed in the contract for the sale of the tourist product;
accommodation services of a tourist in a hotel (hotels) or other (other) means of accommodation, an object of sanatorium treatment and recreation located on the territory of the Russian Federation, including tourist catering services, if catering services are provided in combination with hotel accommodation services or other means of accommodation, an object of sanatorium treatment and recreation;
In paragraph 1 of Art. 255 of the Tax Code of the Russian Federation formulates the main composition of the taxpayer's expenses aimed at remuneration. This category of costs includes any accruals to employees in kind or in cash. Let's take a closer look at what else is included in these costs.
Basic payouts
First of all, they include amounts calculated according to official salaries, tariff rates, as a percentage of revenue or piece rates according to the systems and forms of payroll adopted by the payer. This is indicated in paragraph 1 of Art. 255 of the Tax Code of the Russian Federation. In addition, the costs include the amount of average earnings calculated and retained for the period the employee performs public (state) duties and in other cases established by law. This provision is provided for in paragraph 6 of Art. 255 of the Tax Code of the Russian Federation.
incentive payments
These include bonuses for the results of production activities, allowances for salaries and rates for professional excellence, achievements in work and similar indicators. These costs are defined in paragraph 2 of Art. 255 of the Tax Code of the Russian Federation. Payroll costs also include compensatory or incentive payments relating to the regime and conditions for carrying out activities at the enterprise. In particular, according to paragraph 3 of Art. 255 of the Tax Code of the Russian Federation, they provide for bonuses for work:
- At night time.
- Multi-shift mode.
- Combination of professions.
- In especially harmful, difficult conditions.
- Expansion of the service area.
- Overtime on holidays and weekends.
Compensation
The cost of wages includes the cost of utilities, food and food, housing, which should be provided to employees free of charge. In case of non-receipt of them by employees, the taxpayer pays appropriate compensation. The employer also includes in the costs of wages the costs of manufacturing/purchasing uniforms and uniforms provided to employees according to the established rules in the legislation free of charge or sold to them at reduced prices (in the part not covered by personnel), which remain in the constant individual use of employees. These provisions establish paragraphs 4 and 5 of Art. 255 of the Tax Code of the Russian Federation.
Directions
The Tax Code provides for the inclusion in expenses of amounts in the form of average earnings accrued for vacation. Art. 255 of the Tax Code of the Russian Federation also includes the actual costs of paying for the travel of employees and persons who are dependent on them to a place of rest in the country and back. These expenses, among other things, include compensation for the baggage of employees of enterprises located in the Far North, as well as in an area that is equated to it in terms of climatic conditions. These payments are provided for in paragraph 7 of Art. 255 of the Tax Code of the Russian Federation. For organizations financed from the relevant budgets, accrual is carried out in the manner prescribed by law. For other organizations - the calculation is made according to the rules established by the employer. In paragraph 7 of Art. 255 of the Tax Code of the Russian Federation also establishes an additional payment to minor employees for a reduced time. Wage expenses also include expenses for mothers' breaks to feed their children, as well as the time required for medical examinations. According to paragraph 8 of Art. 255 of the Tax Code of the Russian Federation, monetary compensation for unused rest periods is taken into account in accordance with the Labor Code.
Retirement payouts
They are established in paragraph 9 of Art. 255 of the Tax Code of the Russian Federation. Salary costs include accruals to employees who leave, including in the event of liquidation or reorganization of an enterprise, reduction in the staff or number of employees of the taxpayer. Such amounts, in particular, are recognized as severance benefits calculated to personnel upon termination of an employment contract, provided for in the contract or separate agreements between the parties, collective agreements, as well as local documents containing the provisions of labor law.
Allowances and rewards
These payments are established in paragraphs 10-12 of Art. 255 of the Tax Code of the Russian Federation. Salary costs include one-time remuneration accrued for length of service (for length of service in the specialty). The costs also include allowances, which are due to the regional regulation of the established method of calculating wages. In them, among other things, Art. 255 of the Tax Code of the Russian Federation involves accruals according to the coefficients:
- District.
- For activities in special natural and climatic conditions.
In the cost of s / n under Art. 255 of the Tax Code of the Russian Federation includes allowances for continuous experience in the European and Far North, in areas equivalent to it.
Insurance premiums
They are determined by paragraph 16 of Art. 255 of the Tax Code of the Russian Federation. Salary expenses include employers' payments under compulsory and voluntary insurance contracts concluded between the licensed organization and the employee. The costs also include contributions paid under the relevant Federal Law. In case of voluntary insurance, the expenses include amounts under contracts:
- Personal insurance, providing compensation only in case of death or damage to health.
- Life insurance (with a validity period of at least 5 years).
- Non-state security, subject to the use of the scheme for accounting for contributions on nominal accounts.
- Voluntary individual insurance (with a period of validity of at least a year).
Other payments
P. 25 Art. 255 of the Tax Code of the Russian Federation includes other types of expenses that are made in favor of employees in salary expenses. This refers to those payments that are not specified in the previous provisions. To be accounted for, such costs must be provided for in the contract or collective agreement. According to Art. 255 of the Tax Code of the Russian Federation, sick leave is paid by the employer. At the same time, accruals are made for the first three days of the absence of an employee. The following days are compensated by insurance premiums. Another point to be noted is that Art. 255 of the Tax Code of the Russian Federation. Sick leave, paid in accordance with a voluntary individual insurance contract, expenses incurred by the employer under an agreement on the provision of medical services concluded in favor of employees for a period of at least a year from medical institutions that have licenses to carry out their activities are included in the costs in the amount of not more than 6% of the cost of wages. The total amount of the employer's contributions paid in accordance with the legislation on account of the funded part of the pension, as well as under long-term agreements on the life insurance of an individual, voluntary pension provision (including non-state), is taken into account for taxation purposes. Its size should not exceed 12% of the salary costs.
Art. 255 of the Tax Code of the Russian Federation with comments
Several changes have been made to the Code. The first of them relate to the payment of vacation pay and compensation for the period of study. AT new edition the amount of these expenses is specified in the form of average earnings. In 2014, they were listed in general view as salary costs. This means that additional accruals up to the average payment can not be attributed to compensation for periods of rest and subsequently cannot be taken into account. At the same time, paragraph 8 of Art. 255 of the Tax Code of the Russian Federation remained unchanged. The provision on accounting in the expenditure item for severance benefits, the payment of which is provided for under an employment or collective agreement, has undergone an adjustment. Until a corresponding amendment to Art. 255 of the Tax Code of the Russian Federation, there was a rather contradictory arbitrage practice. Disputes, in particular, concerned the accounting of these costs for tax purposes. Another change concerns remuneration based on annual performance results. In accordance with the amendments, such payments are included in the cost of wages under paragraph 24. Now it is indicated that it is possible to create reserves for payments based on the results of the employee's annual activities.
Question about "rollover" payments for the rest period
Consider an example. The employee takes a vacation from 06/29/2015 to 07/26/2015. According to the Labor Code, payments were made before going on vacation on 05/25/2015 in the amount of 25 thousand rubles. If the company submits quarterly reports, then 2 days of vacation for the employee fall in the second quarter of the year, and 26 days in the third. Thus, the latter form a "transitional" period of rest. According to paragraph 7, salary expenses include payments in the form of average earnings. This means that the accrued amount of 25 thousand rubles. taken into account when calculating the base as part of the costs. As for the period in which they are taken into account, clarifications are given in a letter from the Ministry of Finance dated 03/06/2015. In accordance with the explanations, these expenses are recognized in the time period in which they were formed and paid, that is, in the declaration for the second quarter.
Conditions for accounting for severance pay
Consider an example. LLC terminated the contract with the commercial director and paid him a severance pay of 300 thousand rubles. Can this amount be taken into account as part of salary costs for tax purposes and under what conditions? As amended in the Code, severance pay may be included in such expenses. However, for this it is necessary that the severance pay is provided for in the labor contract or the local act of the enterprise. The last, in particular, may be an agreement to terminate the contract. It indicates the amount of the benefit, if it was not established in the contract or under the terms of the collective agreement.
Explanation of annual remuneration
For example, the company plans to pay certain amounts based on the results of the work of employees. What actions need to be taken for this? First of all, it is necessary to fix accounting policy a uniform method of reserving for the payment of remuneration, determine the limit and the subsequent percentage of accruals in each month. To do this, you need to make an estimate. It determines the amount of the annual reserve by the ratio of the annual payroll and the percentage deductions from it for remuneration. After that, the entire volume should be divided into months. At the same time, in monthly amounts insurance payments for the annual remuneration are also taken into account. For example, an enterprise plans salary expenses in 2016 in the amount of 7 million rubles. The percentage of reservation is 10%, and the amount of insurance premiums is 31%. The estimated limit on the final remuneration, therefore, will be 917,000 rubles. (7,000,000 × 1.31 × 10%). At the next stage, the direct formation of the reserve in a monthly format is carried out. The amount of expenses for salary and insurance premiums accrued on it is multiplied by interest rate limit. The obtained values are taken into account in expenses when calculating the mandatory budget deduction from profit under clause 24 of the Tax Code. Further, on December 31, an inventory of the reserve is carried out. It is necessary to compare the generated volume with the amount of remuneration accrued to employees, taking into account insurance. Thus, an overrun or a deficiency is revealed.
Free food clarification
Suppose the company does not have a special canteen, but separate room was equipped with everything you need. In addition, products are purchased, from which a specially hired employee prepares lunch. Are these costs included in wages? In order to include these costs, first of all, the conditions for the provision of meals must be included in employment contracts. According to Art. 131 of the Labor Code, the employer can issue part of the salary in kind. Free meals in this case will be qualified in this way. In this case, the salary will be formed from the accrued salary and the cost of free meals. Clause 1 of Art. 255 NK. In accordance with the regulation, the costs can be attributed to the amount of the employer, accepted from him in accordance with various types of settlements with personnel.
Clothes expenses
Suppose an LLC plans to purchase a uniform for personnel and donate it. How should this be accounted for in payroll costs? According to paragraph 5 of the article under consideration, the cost of uniforms, which is transferred to the specialists of the enterprise free of charge, may be included in these costs. However, it should be borne in mind that the employer will need to pay on top of the VAT on the transfer, personal income tax (since this, as in the previous example, acts as a payment in kind), as well as insurance premiums. In addition, in order to include the cost of uniforms in expenses, a number of conditions must be met:
- Issuance is economically justified.
- Uniforms allow you to determine the identity of the staff.
- Extradition is provided for in a collective or labor agreement or in other local acts of the enterprise.
- The cost of acquiring the form is documented.
As an alternative, you can use Art. 254 and reclassify clothing from uniform to special. However, in this case, an assessment of the working conditions will have to be carried out. If the transfer of clothing from the category of uniform to special does not work, it is advisable to transfer it not to the property of employees, but to temporary use. This will avoid additional costs in the form of VAT, personal income tax.
Financial assistance for the period of rest
The LLC pays financial assistance for employees' vacations based on incoming applications. Can such costs be included in salary costs? According to paragraph 23 of Art. 270 of the Tax Code, the company has no grounds for such inclusion. However, the Ministry of Finance gave clarifications on this matter. According to the Ministry, these expenses should not be taken into account only if they are not related to the fulfillment of labor obligations. The letter explains that financial assistance is interconnected with the implementation of professional activities. However, for accounting, the following conditions must be met:
- Financial assistance must be specified in the collective or labor contract.
- Payments must be tied to salary.
- Financial assistance should be associated with the observance of labor discipline.
Anniversary costs
Let's consider one more example. One of the employees turns 50 years old. In this regard, the management decided to pay him a bonus for the holiday. Can it be included in salary costs? According to Art. 255 of the Tax Code of the Russian Federation, the costs include bonuses related to the performance by the employee of his duties. The anniversary has nothing to do with the professional activities of the employee. In Art. 252 clearly states that only payments for high production results, achieved targets, excellent work can be linked to the performance of duties. Under any of these formulations, the anniversary does not fit. This means that the premium on his case is not included in the cost of wages.
Payment for gym memberships for staff
Compensating the cost in this case, the company can spend the costs under Art. 255 or art. 264. With regard to accounting for taxable expenses, a direct prohibition on this is present in paragraph 29 of Art. 270. It states that expenses of this kind cannot be included in this category. The same opinion was expressed in the letters of the Ministry of Finance.
Remuneration under civil law contracts
Consider the situation. Suppose an LLC has signed a contract with a citizen to carry out commissioning activities on production equipment. Is it possible to attribute the remuneration paid to him to salary expenses under Art. 255? In this case, you should refer to paragraph 21 of this article. It says that the costs can take into account payments to individuals who are not on the staff of the enterprise if they perform work under a work contract. At the same time, the conditions set out in Art. 252. In particular, these expenses must be documented and used to generate income from the commercial activities of the company. The contract itself must comply with the requirements of the Civil Code. When performing work by an individual, the rental and use of equipment is excluded. If these costs are present, they are classified as "Other costs".
Supplement to average earnings
Suppose a company sends its technologist on a business trip. At the same time, the actual earnings of the employee are actually less than the average. Can an additional payment be made with its subsequent inclusion in the cost of salaries involved in taxation? When sending an employee on a business trip, in accordance with Art. 167 of the Labor Code, he can count on receiving an average salary. According to paragraph 25 of Art. 255 of the Tax Code, labor costs may take into account other costs that are provided for by the enterprise in a contract or collective agreement. This means that in order to be included in the costs involved in taxation, they must be fixed in the relevant documents. In this case, any problems are excluded when making additional payments up to average earnings during a business trip and their subsequent compensation.
Conclusion
With the introduction of additions and amendments to the Tax Code, employers have the opportunity to justify and take into account many payments in favor of employees as participating in taxation. It is extremely important for business leaders to correctly draw up these charges. It is necessary to pay special attention to local documents, the content of collective and labor agreements. It should be remembered that even if certain payments can be taken into account in expenses for tax purposes, but information about them is not available in the acts, then their inclusion will be illegal. It is necessary to carefully study the conditions regarding insurance payments. Here, the forms and duration of the concluded contracts with the insurance company, the features of the services provided are important. It is extremely important to reasonably attribute certain expenses to taxation costs, referring to paragraph 25. It clearly states the requirement for the presence of information in collective or labor agreements. As mentioned above, this fact allows the employer to legitimately take into account payments. Separately, among other things, it is necessary to comply with the requirements for the form of contracts concluded for the performance of certain works by individuals. This condition is one of the key ones when considering the costs that are supposed to be included in taxable costs. Each paragraph of the article has its own specifics. In order to avoid problems, you should carefully study and analyze the conditions and circumstances indicated in them.
The taxpayer’s labor costs include any accruals to employees in cash and (or) in kind, incentive accruals and allowances, compensatory accruals related to the mode of work or working conditions, bonuses and one-time incentive accruals, expenses associated with the maintenance of these employees, provided for the norms of the legislation of the Russian Federation, labor agreements (contracts) and (or) collective agreements (paragraph as amended by Federal Law of May 29, 2002 N 57-FZ; the effect applies to relations that arose from January 1 2002.
Labor costs for the purposes of this chapter include, in particular:
1) amounts accrued at tariff rates, official salaries, piece rates or as a percentage of revenue in accordance with the forms and systems of remuneration adopted by the taxpayer N 57-FZ; the effect applies to relations that arose from January 1, 2002;
2) accruals of a stimulating nature, including bonuses for production results, allowances for tariff rates and salaries for professional skills, high achievements in labor and other similar indicators;
3) accruals of a stimulating and (or) compensatory nature related to the mode of work and working conditions, including allowances for tariff rates and salaries for night work, multi-shift work, for combining professions, expanding service areas, for working in difficult, harmful, especially harmful working conditions, for overtime work and work on weekends and holidays, carried out in accordance with the legislation of the Russian Federation;
4) the cost of utilities provided to employees free of charge in accordance with the legislation of the Russian Federation, food and products provided to employees of the taxpayer in accordance with the procedure for free housing established by the legislation of the Russian Federation (the amount of monetary compensation for the failure to provide free housing, utilities and other similar services) (paragraph c the version put into effect on June 30, 2002 by Federal Law No. 57-FZ of May 29, 2002; the effect applies to relations that arose from January 1, 2002;
5) expenses for the acquisition (manufacturing) of uniforms and uniforms (in part of the cost not compensated by employees) that are issued in accordance with the legislation of the Russian Federation to employees free of charge or sold to employees at reduced prices, which remain in the personal permanent use of employees. In the same manner, expenses for the purchase or manufacture of uniforms and footwear by an organization, which indicate that employees belong to this organization, are taken into account (paragraph as amended by Federal Law No. 58-FZ of June 6, 2005;
6) the amount of average earnings accrued to employees, kept for the duration of their performance of state and (or) public duties and in other cases provided for by the legislation of the Russian Federation on labor;
7) expenses in the form of average earnings retained by employees for the duration of the vacation provided for by the legislation of the Russian Federation, the actual expenses for paying for the travel of employees and persons dependent on these employees to the place of use of the vacation in the territory of the Russian Federation and back (including expenses for paying baggage transportation of employees of organizations located in the regions of the Far North and equivalent areas) in the manner prescribed by applicable law - for organizations financed from the relevant budgets and in the manner prescribed by the employer - for other organizations, additional payment to minors for reduced working hours, expenses for payment of breaks in work of mothers for feeding the child, as well as expenses for payment of time associated with the passage of medical examinations;
(Clause as amended, entered into force on June 30, 2002 by Federal Law No. 57-FZ of May 29, 2002, the effect applies to relations that arose from January 1, 2002; as amended, entered into force on January 1, 2005 by the Federal Law No. 122-FZ of August 22, 2004; as amended by Federal Law No. 366-FZ of November 24, 2014.
8) monetary compensation for unused vacation in accordance with the labor legislation of the Russian Federation ;
9) accruals to dismissed employees, including in connection with the reorganization or liquidation of the taxpayer, reduction in the number or staff of the taxpayer's employees. For the purposes of this paragraph, accruals to dismissed employees are recognized, in particular, severance benefits paid by the employer upon termination of the employment contract, provided for by employment contracts and (or) separate agreements of the parties to the employment contract, including agreements on termination of the employment contract, as well as collective agreements, agreements and local regulations containing labor law norms;
(Paragraph as amended, entered into force on January 1, 2015 by the Federal Law of November 29, 2014 N 382-FZ.
10) one-time remuneration for length of service (bonuses for length of service in the specialty) in accordance with the legislation of the Russian Federation;
11) allowances due to regional regulation of wages, including accruals for district coefficients and coefficients for work in difficult natural and climatic conditions (paragraph as amended by Federal Law No. 122-FZ of August 22, 2004;
12) allowances for continuous work experience in the regions of the Far North and equivalent areas, in regions of the European North and other regions with severe natural and climatic conditions N 122-FZ;
12.1) the cost of travel at actual expenses and the cost of carrying luggage at the rate of not more than 5 tons per family at actual expenses, but not higher than the tariffs provided for transportation by rail to an employee of an organization located in the regions of the Far North and equivalent areas (in the absence of railway, these expenses are accepted in the amount of the minimum fare for air transport), and to members of his family in the event of moving to a new place of residence in another area in connection with the termination of an employment contract with an employee for any reason, including in the event of his death, for with the exception of dismissal for guilty actions (the clause was additionally included from January 1, 2006 by the Federal Law of June 6, 2005 N 58-FZ);
13) expenses in the form of average earnings retained in accordance with the legislation of the Russian Federation for the period of study holidays provided to employees of the taxpayer, as well as expenses for travel to and from the place of study;
(Clause as amended, entered into force on June 30, 2002 by Federal Law of May 29, 2002 N 57-FZ, the effect applies to relations that arose from January 1, 2002; supplemented from January 1, 2006 by the Federal Law of June 6, 2005 No. 58-FZ; as amended by Federal Law No. 366-FZ of November 24, 2014, entered into force on January 1, 2015.
14) labor costs for the time of forced absenteeism or the time of performing lower-paid work in cases provided for by the legislation of the Russian Federation;
15) the paragraph became invalid from January 1, 2010 - Federal Law of July 24, 2009 N 213-FZ;
16) the amounts of payments (contributions) of employers under compulsory insurance contracts, the amounts of employers' contributions paid in accordance with the Federal Law "On Additional Insurance Contributions for Funded Pension and State Support for the Formation of Pension Savings", as well as the amounts of payments (contributions) of employers under voluntary insurance contracts; insurance (contracts of non-state pension provision) concluded in favor of employees with insurance organizations (non-state pension funds) that have licenses issued in accordance with the legislation of the Russian Federation to conduct relevant types of activities in the Russian Federation.
(The paragraph was supplemented from January 1, 2009 by the Federal Law of April 30, 2008 N 55-FZ; as amended by the Federal Law of June 29, 2015 N 177-FZ.
In cases of voluntary insurance (non-state pension provision), the indicated amounts relate to labor costs under contracts:
life insurance, if such contracts are concluded for a period of at least five years with Russian insurance organizations that have licenses to conduct the relevant type of activity, and during these five years do not provide for insurance payments, including in the form of annuities and (or) annuities, for except for insurance payments in cases of death and (or) injury to the health of the insured person (paragraph as amended by Federal Law No. 216-FZ of July 24, 2007);
non-state pension provision, subject to the application of a pension scheme that provides for the accounting of pension contributions on personal accounts of participants in non-state pension funds, and (or) voluntary pension insurance if the participant and (or) the insured person has pension grounds provided for by the legislation of the Russian Federation, giving the right to establish state pension provision and (or) insurance pension, and during the period of validity of the pension bases. At the same time, non-state pension insurance agreements should provide for the payment of pensions until the funds on the participant's personal account are exhausted, but for at least five years, or for life, and voluntary pension insurance agreements - the payment of pensions for life;
(The paragraph as amended, entered into force on January 31, 2005 by the Federal Law of December 29, 2004 N 204-FZ, the effect applies to legal relations that arose from January 1, 2005; as amended, entered into force on January 1, 2008 by the Federal Law dated July 24, 2007 N 216-FZ, applies to legal relations that arose from January 1, 2005; as amended by Federal Law dated June 29, 2015 N 177-FZ.
voluntary personal insurance of employees, concluded for a period of at least one year, providing for the payment by insurers of medical expenses of insured employees;
voluntary personal insurance, providing for payments only in cases of death and (or) harm to the health of the insured person (paragraph as amended by Federal Law of July 24, 2007 N 216-FZ, applies to legal January 1, 2007.
The total amount of employers' contributions paid in accordance with the Federal Law "On additional insurance premiums for funded pensions and state support for the formation of pension savings", and payments (contributions) of employers paid under long-term life insurance contracts for employees, voluntary pension insurance and (or) non-state pension provision of employees is taken into account for tax purposes in an amount not exceeding 12 percent of the amount of labor costs.
(The paragraph was supplemented from January 31, 2005 by the Federal Law of December 29, 2004 N 204-FZ, the effect applies to legal relations that arose from January 1, 2002; supplemented from January 1, 2009 by the Federal Law of April 30, 2008 N 55-FZ; as amended by Federal Law No. 177-FZ of June 29, 2015, effective from July 30, 2015.
In the event that changes are made to the terms of a life insurance contract, as well as a voluntary pension insurance contract and (or) a contract of non-state pension provision in respect of individual or all insured employees (participants), if as a result of such changes the terms of the contract cease to comply with the requirements of this paragraph, or in in the event of termination of these contracts in respect of individual or all insured employees (participants), the employer's contributions under such contracts in respect of the relevant employees, previously included in expenses, are recognized as subject to taxation from the date such changes are made to the terms of these contracts and (or) the reduction of the validity period of these contracts or their termination (with the exception of cases of early termination of the contract due to force majeure, that is, extraordinary and unavoidable circumstances) (paragraph as amended by the Federal Law nom dated July 24, 2007 N 216-FZ.
Contributions under voluntary personal insurance contracts providing for the payment by insurers of medical expenses of insured employees, as well as employers’ expenses under contracts for the provision of medical services concluded in favor of employees for a period of at least one year with medical organizations that have the appropriate licenses for medical activities issued in in accordance with the legislation of the Russian Federation, are included in expenses in an amount not exceeding 6 percent of the amount of labor costs (paragraph as amended by Federal Law No. 213-FZ of July 24, 2009.
Contributions under voluntary personal insurance contracts that provide for payments only in cases of death and (or) injury to the health of the insured person are included in expenses in an amount not exceeding 15,000 rubles per year, calculated as the ratio of the total amount of contributions paid under these contracts to the number of insured employees (paragraph as amended by Federal Law No. 216-FZ of July 24, 2007.
When calculating the maximum amounts of payments (contributions) calculated in accordance with this subparagraph, labor costs do not include the amounts of payments (contributions) provided for by this subparagraph (the paragraph was additionally included from June 30, 2002 by the Federal Law of May 29, 2002 N 57 -FZ; the effect applies to relations that arose from January 1, 2002);
Effect of the provisions of clause 16 of part two this article(as amended by Federal Law No. 177-FZ of June 29, 2015) applies to legal relations that arose from January 1, 2015 - see Part 2 of Article 2 of Federal Law No. 177-FZ of June 29, 2015.
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17) the amounts accrued in the amount of the tariff rate or salary (when performing work on a rotational basis), provided for by collective agreements, for calendar days of being on the way from the location of the organization (collection point) to the place of work and back, provided for by the shift work schedule, and also for days of delay of workers on the way due to meteorological conditions (paragraph as amended by Federal Law No. 137-FZ of July 27, 2006;
18) amounts accrued for the work performed individuals recruited to work for the taxpayer in accordance with special contracts for the provision of labor with government organizations(Clause as amended, entered into force on June 30, 2002 by Federal Law No. 57-FZ of May 29, 2002; the effect applies to relations that arose from January 1, 2002;
19) in cases stipulated by the legislation of the Russian Federation, accrual at the main place of work for workers, managers or specialists of the taxpayer during their training with a break from work in the system of advanced training or retraining of personnel (clause as amended by the Federal Law of May 29, 2002 N 57-FZ; the effect applies to relations that arose from January 1, 2002;
20) labor costs of donor workers for the days of examination, blood donation and rest provided after each day of blood donation;
21) the cost of remuneration of employees who are not on the staff of the taxpaying organization for the performance of work by them under concluded civil law contracts (including work contracts), with the exception of remuneration under civil law contracts concluded with individual entrepreneurs (paragraph as amended by Federal Law No. 57-FZ of May 29, 2002, effective from June 30, 2002; the effect applies to relations that arose from January 1, 2002;
22) accruals provided for by the legislation of the Russian Federation to military personnel serving in military service at state unitary enterprises and in construction organizations of federal executive bodies in which military service is provided for by the legislation of the Russian Federation, and to private and commanding staff of internal affairs bodies, the State Fire Service, provided for by federal laws, laws on the status of military personnel and on institutions and bodies executing criminal penalties in the form of deprivation of liberty (the clause was supplemented from January 1, 2003 by the Federal Law of July 25, 2002 N 116-FZ;
23) additional payments to disabled people provided for by the legislation of the Russian Federation;
24) expenses in the form of deductions to the reserve for the upcoming payment of vacations to employees and (or) to the reserve for the payment of annual remuneration for length of service and based on the results of work for the year, carried out in accordance with Article 324.1 of this Code;
(The clause was additionally included from June 30, 2002 by the Federal Law of May 29, 2002 N 57-FZ; the effect applies to relations that arose from January 1, 2002; as amended by the Federal Law of November 29, 2014 year N 382-FZ.
24.1) expenses for reimbursement of employees' expenses for the payment of interest on loans (credits) for the acquisition and (or) construction of residential premises. These expenses for taxation purposes are recognized in an amount not exceeding 3 percent of the amount of labor costs (the item was additionally included from January 1, 2009 by Federal Law No. 158-FZ of July 22, 2008);
Clause 24 of the previous edition from June 30, 2002 is considered clause 25 of this edition - Federal Law of May 29, 2002 N 57-FZ. The action applies to relations that arose from January 1, 2002.
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25) other types of expenses incurred in favor of the employee, provided for by the employment contract and (or) the collective agreement.
Commentary on Article 255 of the Tax Code of the Russian Federation
Article 255 of the Tax Code of the Russian Federation provides a list of labor costs that organizations can take into account when taxing profits. Let's say these costs include:
- amounts accrued to employees in accordance with the wage systems adopted in the organization;
- incentive payments (bonuses, allowances for tariff rates and salaries, etc.);
- the cost of uniforms and uniforms, which are issued to employees free of charge (in cases provided for by law);
- the cost of wages saved to employees during the holidays.
Also, labor costs include expenses under contracts of compulsory and voluntary insurance of employees (clause 16, article 255 of the Tax Code of the Russian Federation). In particular, these are contracts:
- long-term life insurance, which are concluded for a period of at least five years and during this time do not provide for insurance payments in favor of the insured person (except for the insurance payment provided for in case of his death);
- pension insurance or non-state pension provision (these agreements should provide for the payment of a lifetime pension only after the insured person becomes entitled to a state pension);
- voluntary personal insurance of employees, which are concluded for a period of at least one year and provide for the payment of medical expenses of the insured;
- voluntary personal insurance, concluded in the event of the death of the insured person or his disability in connection with the performance official duties.
The amount of payments for the specified types of voluntary insurance for the purposes of profit taxation is standardized. The total amount of employers' contributions paid under contracts of long-term life insurance of employees, voluntary pension insurance and (or) non-state pension provision of employees is accounted for in an amount not exceeding 12 percent of the amount of labor costs. In turn, the norms of contributions under voluntary personal insurance contracts, which provide for the payment of medical expenses, amount to 3 percent of the amount of labor costs.
In addition, a limit has been set for payments under voluntary personal insurance contracts concluded in the event of the death of the insured person or his disability in connection with the performance of official duties. They are taken into account for tax purposes within 10,000 rubles. per year per insured employee.
Labor costs can include amounts paid to employees who are not on the staff of the organization and perform work on civil law contracts. However we are talking only about those employees who are not individual entrepreneurs. As for the latter, the costs of remuneration for their labor should be taken into account as part of other production costs. The corresponding norm is enshrined in paragraph 41 of Article 264 of the Tax Code of the Russian Federation.
Now let's move on to the changes.
Payment for travel of employees to the place of study
Clause 13 of Article 255 of the Tax Code of the Russian Federation stipulates that the cost of paying for the travel of employees to the place of study is taken into account as part of labor costs. And although last year this type of cost was not directly named, the tax authorities did not object to enterprises taking it into account when calculating income tax. After all, the list of labor costs is open (see letter of the Ministry of Taxes of Russia dated September 5, 2003 N VG-6-02 / [email protected]).
Moreover, officials insist that the university must have state accreditation (letter of the Ministry of Finance of Russia dated April 24, 2006 N 03-03-04/1/389). However, if the university does not have it, this does not mean that the organization cannot pay the employee the cost of travel. Maybe, but it doesn't have to. Here everything is determined by the norms of the collective or labor agreement. As for income tax, nothing prevents such costs from being included in labor costs under paragraph 25 of Article 255 of the Tax Code of the Russian Federation. After all, they are registered in the internal documents of the company.
Overalls and uniform
Since 2006, firms have been allowed to include in labor costs the cost of uniforms issued to employees. With regard to special clothing, this rule was in effect before.
According to articles 209 and 212 of the Labor Code of the Russian Federation, overalls are issued to workers employed in work with harmful and (or) dangerous working conditions, as well as in work performed in special temperature conditions or associated with pollution. Unlike special uniforms, they are not designed to protect workers from any harmful factors. It only demonstrates the employee's belonging to the organization.
Uniform and special clothing may be provided to an employee:
- for use only at work (in this case, the ownership of the clothes remains with the company).
When the issuance of uniforms or special clothing is provided for by law, such expenses can be taken into account without problems. For example, for three-star hotels and above, it is mandatory for staff to have uniforms (Resolution of the State Standard of Russia dated February 21, 1994 N 33).
If uniform or special clothing is not provided for by law, but is issued at the initiative of the organization, tax authorities often object to reducing taxable income by the amount of such expenses. However, arbitration practice in most such cases is in favor of taxpayers (see, for example, Resolution of the Federal Antimonopoly Service of the Moscow District dated March 5, 2005 N KA-A41 / 1387-05);
- for personal permanent use (in this case, the ownership of the clothes passes to the employee).
In this case, when calculating income tax, the organization may include the costs of purchasing clothing in labor costs if its issuance is provided for by law or a collective agreement or agreement. This statement is true for both special and uniform clothing.
Compensation for unused vacation
Compensation for unused vacation is paid not only upon dismissal of the employee, but also if the employee decides to replace part of the vacation with money.
If an employee quits without taking his main or additional vacation in full, he must be paid compensation on the last day of work. Note that this also applies to people working part-time. Compensation for unused vacation is calculated in the same way as vacation pay, that is, based on the average earnings of the employee (Article 139 of the Labor Code of the Russian Federation).
Allows you to pay compensation to an employee in return for the part of the vacation that exceeds 28 calendar days. An exception is made only for pregnant women, underage employees and workers employed in hazardous industries. These categories cannot replace part of the vacation with compensation.
To receive compensation in return for vacation, the employee must write an appropriate application with a request to give him money. The manager is reviewing this application. And if he considers it possible, he can issue an order to pay the employee monetary compensation for unused vacations.
However, the specific procedure for the application of Article 126 in the Labor Code of the Russian Federation is not spelled out. Currently, there are two points of view (letter of the Ministry of Labor of Russia dated April 25, 2002, No. 966-10). First. Compensation can be paid if the main vacation exceeded 28 days as a result of adding up all unused vacations. That is, let's say a person was not on vacation in 2004, but in 2005 he was on vacation for only 14 days. Total - 42 days (28 + 14). Then he will have to take 28 days off, and for the remaining 14 days he will be compensated. Second. You can only compensate for those days of each of the unused annual holidays that exceed 28 calendar days. In the example above, there are no such days. Therefore, if the employee is not entitled to extended basic or additional leave, compensation will not be paid to him.
I must say that now the State Duma is a bill that amends the Labor Code of the Russian Federation. It has gone through three readings. In the updated version of Article 126 of the Labor Code of the Russian Federation, it is planned: "When summing up or transferring vacation to the next working year, a part of each annual vacation exceeding 28 calendar days can be replaced by monetary compensation." That is, if you use the above example, it will become clear that there are no such days here. Therefore, if the employee is not entitled to extended basic or additional leave, compensation will not be paid to him.
Compensations for unused leave upon dismissal, which are paid in accordance with labor legislation, are included in labor costs (clause 8, article 255 of the Tax Code of the Russian Federation). This means that such costs can be excluded from the organization's taxable income when calculating income tax.
There is, however, one exception here. It concerns compensations that are paid for additional leave, which the organization independently established for its employees in excess of the norms provided for by law. The fact is that the amounts of excess vacation pay are not taken into account when calculating income tax (clause 24, article 270 of the Tax Code of the Russian Federation). Accordingly, it is impossible to take into account when taxing the amount of compensation for excess additional holidays. The same can be said about any amounts of compensation that are paid in larger amounts than provided by law.
Compensation for unused vacation paid in exchange for part of the vacation is also included in labor costs. After all, they are charged in accordance with labor laws. As in the case of dismissal, compensation for additional holidays independently established by the organization is not taken into account when calculating income tax.
From the amount of compensation that is paid in return for that part of the vacation that exceeds 28 calendar days, the UST will have to be paid. The fact is that compensation for unused vacation without dismissal is not mentioned in Article 238 of the Tax Code of the Russian Federation. You will also have to pay pension contributions. After all, as we have already noted, they are paid from the same base as the UST.
Consultations and comments of lawyers on Article 255 of the Tax Code of the Russian Federation
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