Income tax with advance in. NDFL with an advance. How to be if the tax was not retained

When should I pay a salary for the first half of the month? What liability will be attracted by the employer for non-payment of an advance? How to determine the size of the advance? How does the payment of an advance in the form of 6-NDFL reflected?

Employers should pay salary twice a month, and traditionally the first payment is called an advance. However, there is no such thing in the Labor Code as an advance: in the first half of the month it is necessary to pay salary. How is the payment period for such a salary? What is the order of its calculation? Is it possible to pay it in a fixed amount in order to minimize labor cost employees of the settlement service? How to fill in section. 2 forms 6-NDFL, if at the end of the month the employee received only an advance from which NDFL was not held? What clarifications on these issues came from Mintruda, Rostrud, the Ministry of Finance and FTS, you will learn from the submitted article.

When should I pay a salary for the first half of the month?

At the beginning we remind the position of Part 6 of Art. 136 of the Labor Code of the Russian Federation, according to which it is paid at least every half months. A specific date of payment of wages is established by the rules of the internal labor regulation, a collective agreement or employment contract no later than 15 calendar days from the date of the end of the period for which it is accrued. It should be noted that in this edition this part is valid from October 3, 2016 (paragraph 1 of Art. 2, Art. 4 Federal Law from 07/03/2016 № 272-ФЗ).

Minor, at first glance, changes demanded many employers amending the local regulations and employment contracts.

In a letter dated 09/23/2016 No. 14-1 / OOG-8532, MINRRU noted that the documents that the payroll days can be established in Art. 136 of the Labor Code of the Russian Federation are listed through the comma, that is, the legislator emphasizes the equivalent of these documents, in any of which the issue of payroll comes may be resolved.

Note:

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

In the information of Rostruda "On the application of Article 2 of the Federal Law of July 3, 2016 No. 272-FZ" On Amendments to Selected Legislative Acts Russian Federation in terms of wages "(posted on the official website of the department on 12/20/2016) it is indicated that this law Does not change the order of salary payment. Requirements for limiting the timing of salary payment 15 Calendar days belong to the payment of the employee of the accrued wage at least every half months.

In this case, taking into account new edition Art. 136 TC RF wage Must be paid:

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

For your information:

The deadlines for the implementation of employees of stimulating payments accrued for the month, quarter, year or another can be established by a collective agreement, a local regulatory act. Thus, in the Promotion Regulations, it may be envisaged that the payment of award employees on the results of a certain system award system (for example, a month) is carried out in the month following the reporting (or a specific period of its payment), and the payment of a prize for the work of work Year - in March next year (or a specific date of its payment may also be denoted) (letters of the Ministry of Labor of the Russian Federation dated 09/23/2016 No. 14-1 / OOG-8532, from 09/21/2016 No. 14-1 / B-911, from 15.09. 2016 No. 14-1 / 10 / B-6568).

As for the establishment of the date of the payment of an advance, according to the explanations of the Ministry of Labor, given in the letter from 03.02.2016 No. 14-1 / 10 / B-660 "On the amount and timing of payment of wages, including after a half months," Labor Code It establishes the requirement of the maximum allowable period of time between payroll parts in terms of regulation on the question of the specific time of its payment at the employer level.

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

Editors:

The question of what time it is necessary to establish for the payment of wages, also was considered in Article E. A. Sobolevoye "All about the payment of an advance payment of the employee" (No. 8, 2016).

What liability will be attracted by the employer for non-payment of an advance?

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

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

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

For your information:

Part 6 and 7 were introduced in Art. 5.27 Administrative Code of the Russian Federation by Federal Law No. 272-FZ.

Please note that the arbitrators fall on the side of labor inspections and in the appointment of fines (judicial regulations No. 33 of the Oricheskiy judicial district of the Kirov region of 02.02.2017 No. 5-78 / 2017, a judicial area No. 1 of the Nizhny Novgorod district N. Novgorod Nizhny Novgorod region from 01/31/2017 № 5-5 / 2017), and in the case of the disqualification of managers (Resolution of the Supreme Court of the Republic of Tatarstan from 09/28/2016 No. 4A-1390/2016, Supreme Court of the Republic Mari El dated February 26, 2016 No. 4A-21/2016, Decision of the Samara Regional Court of 09/08/2016 No. 21-1880 / 2016).

In practice, another situation is possible - when the advance payment is provided local actsBut it is done with the delay.

In this case, the employer threatens material responsibility in accordance with Art. 236 TK RF (as amended by Federal Law No. 272-FZ). Unlike an administrative fine, payments are made in favor of workers whose rights are violated.

If you violate the timing of salary payment, the employer must pay the employee compensation for each day of the delay. The size of such compensation is not lower than 1/150 in effect at this time of the key rate of the Central Bank of the Russian Federation from the amounts not paid on the term for each day of delay starting from the next day after the established period of payment on the day of the actual calculation inclusive. The size monetary compensation It is calculated from the amounts actually not paid on time.

How to determine the size of the advance?

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

At the same time, the officials made a reference to Resolution No. 566, according to which the amount of advance payment in the account of the workers' wages for the first half of the month is determined by the Agreement of the Administration of the Enterprise (Organization) with the trade union organization at the conclusion of a collective agreement, however minimum size The specified advance should be not lower than the working time rate for spent time.

What ways to calculate the advance applied in practice? Turn to the scheme.

Methods for calculating the salary for the first half of the month:

• Proportionally spent time;
• As a percentage of salary;
• IN fixed amount (in rubles);
• Most preferred ways.

The method is not convenient for the employer, as it imposes a responsibility for paying salary even in those situations where the worker sick or was on a business trip.

Calculation of salary in proportion to spent time. In addition to formal fulfillment of the requirements of Art. 136 of the Labor Code of the Russian Federation on the payment of wages at least two times a month, when determining the amount of wage payment for a half months, the employer must take into account the time-spent time (actually performed by him) (letter of the Ministry of Labor of the Russian Federation of 03.02.2016 No. 14-1 / 10 / B-660). The same conclusion follows from the letters of the Ministry of Labor of the Russian Federation dated 09/21/2016 No. 14-1 / B-911 and Rostrude from 09/26/2016 No. T3 / 5802-6-1.

A similar position was also given in an earlier letter of the Ministry of Labor of the Russian Federation of 05.08.2013 No. 14-4-1702. And it is emphasized that these rules apply to all employees of the organization and do not have the specifics of the application to special categories workers.

In addition to the fact that this method of calculating the advance is recommended by controlling authorities as the main one, it is convenient and employer: when paying a salary for the first half of the month, the time actually spent by the employee in this period, in practice, is excluded by the risk of overpayment and irritation of NDFLs during final calculation.

Example 1.

The institution has a wage payment period for the first half of the month of the 20th. The rules of the internal labor regulation of the organization stipulate that the advance payment is paid to the employee less the calculated NDFL.

Calculate the sum of the advance for March 2017 for workers, taking into account the time actually spent.

	Salary, rub.	Worked in March 2017, slave. day *
		From the 1st to the 15th	From the 16th to the 31st
Ivanov I. V.
Petrov P. E.
Sidorov S. I.
Kuznetsov K. A.

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

** The employee was in the annual paid vacation.

Within the deadline (03/18/2017, since 03/20/2017 fell on a day off) it will be necessary to pay advanced employees in the following amount:

	Salary, rub.	Accrued for actually spent time in the first half of the month	NDFL	The amount to issuing on hand, rub.
Ivanov I. V.		18 182 rub. (40 000 rub. / 22 slave. Days x 10 slave. Day)	2 364 rub. (18 182 rub. X 13%)
Petrov P. E.		15 909 rub. (35 000 rubles / 22 slave. Days x 10 slave. Day)	2 068 rub. (15 909 rub. X 13%)
Sidorov S. I.		7 955 rub. (35 000 rub. / 22 slave. Days x 5 slave day)	1 034 rub. (7,955 rubles. X 13%)
Kuznetsov K. A.

Controlled bodies have repeatedly indicated that NDFL is not held with advancedes. In the considered example, the reduction in the amount of the advance amount does not provide for the list of personal income tax in the budget.

Calculation of salary for the first half of the month as a percentage of salary. According to the explanations of the Ministry of Health and Social Development, given in the letter dated 25.02.2009 No. 22-2-709, with an advance payment of wages for each half of the month, wages should be accrued about equal amounts (excluding premium payments).

What percentage to install? If literally follow the recommendations given in the letter, it is 50%. However, it historically developed that the advance payment is set in the amount of 40% of the salary. This is quite a logical explanation: with the final calculation with the salaries of workers, the NDFL will be retained, and if in the form of an advance payment 50% of the salary, then the salary for the second half of the month will be significantly less.

Example 2.

The employee has a salary of 30,000 rubles. Suppose that the employee does not hold the deductions of NDFL, therefore, the amount of tax - 3,900 rubles. Let's compare what will be the amounts of payments when paying an advance in the amount of 40 and 50%.

As can be seen from the example, when setting an advance of 50% in the final calculation, the employee will receive a salary lower than the first half of the month, which does not comply with the requirements for approximately equal parts of wages.

At the same time, it should be paid to, which, in contrast to the advance established in a fixed size, to pay an advance as a percentage of the salary, not necessary in cases where the employee did not work (he was on the hospital, on a business trip, on vacation, etc. ).

About paying an advance in a fixed amount.

The question of calculating the fixed amount for the payment of salary by the advance payment of the employee of the public sector organization was considered by the Ministry of Finance in the letter dated March 29, 2016 No. 02-07-05 / 17670. The officials of the department indicted that such a question is within the competence of the Ministry of Labor, and not the Ministry of Finance. At the same time, the financiers recalled that according to Art. 91 of the Labor Code of the Russian Federation, the salary calculation is carried out for actually spent time, determined within the framework of the accounting organized by the employer. At the same time, the procedure for payment of wages (deadlines, size and components), established by local acts of the institution, should not contradict the provisions of the Labor Code of the Russian Federation. As for the accounting of actually spent time, the order of the Ministry of Finance of the Russian Federation No. 52n approved the form of the accounting of working time use of working time, on the basis of which a fixed amount was calculated for actually spent time for the first half of the month (including fixed amount adjustment), and guidelines According to its formation.

Given the data of the explanation of the Ministry of Finance, the above-gaseous position of the Ministry of Labor, as well as the risks associated with the payment of an advance in a fixed amount, we consider such a way to pay the salary for the first half of the month unacceptable for the public sector institutions.

Salary for the first half of the month and NDFL.

Per lately From the side of both the Ministry of Finance and the FTS received a lot of clarification, according to which it is not necessary to hold NDFL from the advance (Letters of the Federal Tar Service of the Russian Federation of April 29, 2016 No. BS-4-11 / 7893, from 24.03.2016 No. BS-4-11 / 4999, Ministry of Finance of the Russian Federation of October 27, 2015 No. 03-04-07 / 61550).

Recall that by virtue of paragraph 3 of Art. 226 of the Tax Code of the Russian Federation the amount of tax is calculated by tax agents at the date of the actual generation of income, determined in accordance with Art. 223 of the Tax Code of the Russian Federation, a growing outcome from the beginning tax period in relation to all income (except for income from participation In the activities of the organization), in respect of which it is used, established by paragraph 1 of Art. 224 of the Tax Code of the Russian Federation, accrued taxpayer for this period, with a credit-held tax period of the tax period withholding the current tax period.

In the letter of the Ministry of Finance of the Russian Federation of 01.02.2016 No. 03-04-06 / 4321 noted that until the expiration of the month, income in the form of remuneration could not be considered the taxpayer received. Accordingly, until the end of the month, the tax cannot be calculated. Consequently, the taxpayer calculated at the end of the month the tax amount is made tax Agent From income only with their actual payments after the end of the month, for which this amount of tax was calculated. A similar opinion is contained in the definition of the Armed Forces of the Russian Federation of 11.05.2016 No. 309-kg16-1804.

However, it is necessary to pay attention to the situation when an advance payment is paid on the last day of the month.

The Ministry of Finance believes (see Letter of 11/23/2016 No. 03-04-06 / 69181) that if you have time to pay an advance before the end of the month, I don't need to list the NDFL into the budget. This is due to the fact that, as a general rule, the institution calculates NDFL on the last day of the month, and the tax must be kept once - when paying income after the end of the month.

As for the arbitrators, they also adhere to the opinions that when paying an advance on the last day of the month of the NDFL, it is not necessary to transfer to the budget to the budget (RESOLUTION OF THE AS UO of 24.02.2016 No. F09-11987 / 15 in case No. A76-10562 / 2015).

How does the payment of an advance in the form of 6-NDFL reflected?

The amount of the advance is not subject to a separate reflection in the form of 6-NDFL: in section. 2 of this form shows the amount of wages recognized for the last number of months. As already noted, NDFL is held with the final calculation with employees and is also indicated by the same amount.

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

This happens if the employee is not charged for the second half of the month (for example, he was provided with unpaid leave), and in the first half of the month, due to non-working holidays, the employee did not actually worked half of working time and income received as an indispensable time. In the future, to keep NDFL from its income under the nearest salary payment.

Section 2 forms 6-NDFL accountant will reflect the indicators as follows:

• for the last number of month will be recognized as the amount of actually received income in the form of an advance;
• the date of the tax retention will be indicated, which does not coincide with the date of payment of the final settlement amount for the corresponding month.

Since the tax is not held in a timely manner, it will be necessary to submit to the accountant tax inspection The corresponding explanation, which will free the institution from responsibility for the presentation of unreliable information.

Example 3.

The employee has a salary in the amount of 30,000 rubles. In January 2017, he was accrued an advance of 12,000 rubles., Which was paid on 01/17/2017. 01/18/2017 The worker fell ill, and a disability sheet introduced to the employer only 06.02.2017. Hold ndfl from an advance in January in the amount of 1,560 rubles. (12,000 rubles x 13%) Accountant was able only when paying an advance for February - 17.02.2017.

IN explanatory note The form of 6-NDFL is necessary, in particular, specify the following.

Section 2 forms 6-NDFL. Discussion in lines 100 (date 31.01.2017) and 110 (indicated date 17.02.2017). The difference in dates is due to the fact that after receiving the advance for January, the worker fell ill. At the set deadline - 03.02.2017 - NDFL was not retained due to the absence of an employee of other revenues taxable at a rate of 13%. Holding ndfl from the advance was not carried out by virtue of paragraph 2 of Art. 223, p. 3, 4 tbsp. 226 NK RF.NDFL for January is retained from the nearest payment in monetary form 17.02.2017 (Advance for February 2017).

As for the sum of the advance periccient times, it must be taken into account when paying an advance for the next month.

Summarize:

• the salary for the first half of the month (from the 1st to the 15th) must be paid within the day from the 16th to the 30th (31st) number;
• the payment date is set in any of the documents listed in art. 136 TC RF (the rules of the internal labor regulation, collective or employment contract), while it is unacceptable instead of a specific day of payment of salary to set the period during which it can be paid;
• when determining the size of an advance, the controllers recommend to take into account the time-spent time (actually performed by him). At the same time, there is no direct ban on the establishment of an advance in percentages to the salary;
• when paying an advance payment of the NDFL into the budget, it is not necessary: \u200b\u200bcalculation, retention and payment of the tax (including for the first half of the month) are carried out with the final calculation.

And as opposition is given another example: from the funds transferred to the repayment of the loan, calculated earlier, the NDFL cannot be held, since the return loan amount of the income of the physical is not. So in this letter speech is not at all about calculus NDFL With "Avansa", but on the holding of NDFL, previously calculated from other income.

On the TC always salary

As already mentioned, TC demands to pay twice a month just wages. In art. The Labor Code of the Russian Federation states that the salary is not only the amount that an employee receives with the final calculation at the end of the month; This includes any payments to the employee, the basis for the accrual of which is the performance of labor functions. So, for the purposes of the Labor Law of the Avansa, the salary simply does not exist: the payment in the middle of the month is precisely salary. And since it is a salary, it should reflect the actually fulfilled labor rate, as st. TK RF.

But in practice it is often not like this: the amount of payment for the first half of the month is determined by the calculation, as part of the salary, which all employees receive, regardless of actual production. This discrepancy between the practice and the letter of the Labor Code of the Russian Federation even was the subject of consideration of Rostrud, whose specialists in letters of 20.05.2011 No. 1375-6-1 and dated December 24, 2007 No. 5277-6-1 were confirmed that in the TK RF there is an internal contradiction when The salary is called the payment, which may not be associated with actual labor. And in this case it is more correct to speak not about paying salary, but about the payment of the wages.

However, these letters were issued before amendments to Art. The Labor Code of the Russian Federation, where the direct link is established between the date of salary payment (and not part of the salary) and the period for which it is accrued. That is, the legislator clearly requires salary accrual for a certain period. Therefore, to use the logic set forth in the above letters of Rostrud, it is more impossible. So, companies need to go to another principle of paying the formation and even for the first half of the month to pay salary on the basis of the time actually spent in this period.

And in taxes - "Advance"

And the tax in this situation should be calculated from all over the salary for this month, and not only from the sum of the "advance", but to keep - only in the part proportional to the "Avans" paid (the letter of the Ministry of Finance of Russia dated 13.03.1997 No. 04-04-06 ). The amount of tax is determined taking into account the rules of rounding established by paragraph 6 of Art. NK RF.

The company accrued wages in the amount of 32,389 ₽ for the first half of September and paid it from 09/30/2017. The salary for the second half of September was accrued in the amount of $ 20,611 and was paid on 14.10.2017. The rights to deduct the employee is not.

Organizations As of September 30, 2017, it is necessary to calculate the NDFL from all over salary for September: (32 389 ₽ + 20 611 ₽) × 13% \u003d 6 890 ₽. It is necessary to hold this amount in proportion to payments with rounding general rules (up to 50 kopecks discarded, 50 or more rounded to a full ruble).

Therefore, when paying from 09/30/2017, 4,121 ₽ (with a listed period of 02.10.2017), and when paying 10/14/2017 - 2,679 ₽ with the list of transfer on 10/16/2017.

Early tax

So, with the rules of Holding NDFL, we figured out: the salary tax paid not in connection with the dismissal is calculated only on the last day of the month, for which this salary is accrued. Accordingly, the deduction of the calculated tax is made from any income paid on this day or later. How to do if the NDFL mistakenly was calculated and kept in the payment of "advance" until the end of the month?

Unfortunately, this question and regulatory authorities, and arbitrage practice Conduct. Although B. legal bases There are easily letters, where it is indicated for the inadmissibility of transfer of personal income tax "Advance", to the date of the actual income receipt (letters of the Federal Tax Service of Russia dated 29.09.2014 No. BS-4-11 / [Email Protected] and BS-4-11 / [Email Protected] , Ministry of Finance of Russia from 09/16/2014 No. 03-04-06 / 46268 and from 01.09.2014 No. 03-04-06 / 43711). But when studying them, it turns out that there is a completely different situation: the budget comes to the budget, which were not kept in the individuals when paying income, which is directly prohibited by paragraph 9 of Art. NK RF. That is, the speech in these letters is not about the tax withheld from the "advance", but about the amounts that under the guise of NDFL were listed in the budget before employees were generally paid any cash.

Therefore, we will rely solely on the norms of the Tax Code of the Russian Federation. There are two options.

Option One - Return Caused

Return to restrained to the date of the actual receipt of income in the form of a salary (until the last day of the month), and then for the last number of the month, calculate NFFL and keep it in the future when paying any income to this employee. Then the formalities of Art. NK RF is not needed.

In this case, the employer cannot be accused of unlawful incomprehension of PPFL into the budget, nor in illegal retention of the employee's worst. After all, we will remind, cases where the employer has the right to hold out of the salary, exhaustively recorded in Art. TK RF. And holding the NDFL in a situation that directly does not provide for the Tax Code of the Russian Federation, the employer violates this order, for which it can be brought to liability under paragraph 6 of Art. 5.27 Administrative Code.

Note, in this case, order return of NDFLestablished by art. NK RF, does not apply. Until the end of the month, for which the salary is calculated, the amount has been credited, in principle, it is impossible to be taxed, since the obligation to calculate the NDFL has not yet arisen. And once the amount of tax is not calculated, then the tax cannot be kept. Thus, before the date of the actual receipt of income in the form of a salary (until the last day of the month), the deduction made from the intermediate payment, according to formal signs, cannot be qualified precisely as NDFL. If you have time to return to retained before the date of the actual receipt of income in the form of salary (until the last day of the month), the employer does not need to notify the employee about the unnecessary retention, wait for his statement and list the tax on the employee's bank account.

Option Second - List the tax in the budget

If for some reason, it's impossible to return the "NDFL from the advance" to the employee, then you need to list this tax in the budget no later than the working day following the retention day. Otherwise, the organization faces a fine of 20% of this amount under Art. NK RF.

Timing for transfer to the budget of a retained NDFL is established in paragraph 6 of Art. NK RF. In this case, applied total timeSince any exceptions for the "early" NDFL of this article is not established.

It will not be possible to appeal and to the fact that by the end of the month this amount is not tax. Indeed, the depreciated amount will acquire nDFL status Only when the last day of the month comes. But on this date, the list of transfer to the budget of this amount will be missing! After all, he, according to paragraph 4 and 6 of Art. The Tax Code of the Russian Federation, it is counting from the date of payment of money, of which the tax was retained. So if the next business day is not transferred to the budget and until the end of the month does not return this amount to the employee, the organization can be fined.

Alexey Kra'nev, Tax Lawyer

This year the procedure for paying salary, including advances, former. But it is necessary to take into account the explanations of officials on the payment of NDFLs from the advance in 2019. Tell how to list the tax and in what time frame.

NDFL with advance in 2019: changes

According to the Code, it is necessary to issue a salary at least than every half past one (part 6 of Art. 136 of the Labor Code of the Russian Federation):

• Prepaid expense - Salary for the first half of the month - from the 1st to the 15th. The term of payment of an advance - from the 16th for the last number of months (the deadlines for the advance payment are determined by internal regulatory acts Companies).
• Second part of salary - Payment for the second half of the month. The period of payment - from the 1st to the 15th day of the next month.

The gap between the two parts of the salary should be no more than 15 days. Paying the second part, the employer is fully calculated with an employee for the past month (letter of the Ministry of Labor dated September 23, 199.16 No. 14-1 / OUC-8532, a letter of Rostrude from 09.26.16 No. TK / 5802-6-1).

Important:Mintrost has changed the rules for calculating the salary. Now you need to pay more workers. Experts "UNEP" told

Employers - Tax agents are obliged to hold NDFL from employee income in their actual payment (clause 4 of Art. 226 of the Tax Code of the Russian Federation). Since the date of receipt of the salary is considered the last day of the month for which it is accrued, NDFL from the advance is not held. Tax calculates and hold with the full amount salaries on the last day of the month, and pay no later than the date following the day of salary. The FNS reported in a letter from 05/26/14 No. BS-4-11 / [Email Protected]). In the letter of the Ministry of Finance of July 10, 2014 No. 03-04-06 / 33737 It is also said that the NDFL is calculated at the corresponding rate on the last day of the month, and it must be kept once - when paying income after the end of the month.

Thus, NDFL from the advance is not necessary if the company gives it to the end of the month.

Note!

However, if the company pays an advance of the 30th day of the month, and the wage is the 15th day of the next month, the NDFL from the advances should be transferred. According to the tax authorities, if the advance is issued on the last day of the month, the employee already receives income to this date. So, NDFL is held with the first, and from the second part of the salary. The judges also consider (the definition of the Armed Forces of the Russian Federation of 11.05.2016 No. 309-kg16-1804).

When paying ndfl from the advance in 2019

Consider clarifying the Ministry of Finance, how to keep a tax calculated from the advance payment calculated from income in kind and other payments (see below).

How to pay ndfl from an advance

Armor payment of NDFL from an advance and salaries is prohibited. Listed early tax is not a tax as such. Therefore, you will have to list the tax twice.

NDFL with salary advance payment 2019: Restrictions

At the expense of tax from income in kind or material Profit You can retain no more than 50% of the payment (clause 4 of Art. 226 of the Tax Code of the Russian Federation). For NDFL, which the company could not hold back from other income, there is no special rule. Limits need to be viewed in other laws.

For salaries and other payments for work, a limit of 20% is valid (Article 138 of the Labor Code of the Russian Federation). Employees can also receive money for rent, cash gifts or awards to the anniversary. From such income, the company has the right to keep the entire NDFL, which previously calculated from the salary, but did not hold. Limits on hold do not act (letter of the Federal Tax Service of Russia of October 26, 2016 No. BS-4-11 / [Email Protected]).

50 or 20% consider income from which you hold the tax. The income from which you could not keep NDFL is not important. At the same time, first keep the salary tax, and from the residue, determine the 50% limitation.

Example

May 29, the company forgave the director of the debt of 250,000 rubles. and calculated NDFL - 32 500 rubles. (250,000 rubles. × 13%). May 30, she calculated NDFL from a gift to the best sales manager - 8580 rubles. ((70,000 rubles. - 4000 rubles.) × 13%). On June 5, the company issued a salary to employees.

Passed loan. Salary of the director - 50,000 rubles, NDFL - 6500 rubles. (50 000 rub. × 13%). From salaries for deducting NDFL You can keep the tax from a farewell loan only 20% - 8700 rubles. ((50 000 rub. - 6500 rubles.) × 20%). Difference - 23,800 rubles. (32 500 - 8700) need to be kept from the following income. Including from the advance for June.

Present. Salarier salary - 30,000 rubles, NDFL - 3900 rubles. (30 000 rubles. × 13%). At the expense of NDFL from a gift, the company has the right to keep half salary less tax - 13,050 rubles. ((30,000 rubles. - 3900 rubles.) × 50%). So, the company can immediately hold all 8580 rubles.

Non-monetary NDFL with advance in 2019

The tax that the company has calculated with the material benefit or income in kind, can be held from the salary advance. Such a conclusion was first made the Ministry of Finance in the letter dated 05.05.17 No. 03-04-06 / 28037.

The tax on the material benefit, income in kind and any other non-adequate NDFL must be kept from the nearest cash income (clause 4 of Art. 226 of the Russian Federation). From the invance itself, NDFL does not hold (a letter of the Federal Tax Service of Russia of January 15, 2016 No. BS-4-11 / 320). It is not clear whether it is possible to keep the tax calculated from the income in kind and other payments.

From which payments can be held ndfl. In a letter No. 03-04-06 / 28037, the Ministry of Finance concluded that with advance can be held the tax that the company has calculated with non-monetary income. Logic from officials is such. The company issues salary to employees at least twice a month (Article 136 of the Labor Code of the Russian Federation). So, each part is the income of the employee. It does not matter that for NDFL, the date of receipt has not yet come. From the first part of the salary, you can still hold NDFL, calculated from the material benefit, gift.

Another thing, if the company issues a loan. Such payment itself is freed from NDFL is not an employee's income. Therefore, to keep a tax with a loan that the company has calculated with the benefit or gift, it is impossible. It is necessary to wait for income or submit at the end of the year a certificate of inconspicuous tax. In a memo, we led to payments from which you can not hold the NDFL.

It is important to understand

From the letter of the Ministry of Finance, it can be concluded that the officials were allowed to hold NDFL from the invance itself. In fact, it is not. The date of receipt of the salary of the salary is the last day of the month for which it is accrued (paragraph 2 of Art. 223 of the Tax Code of the Russian Federation). Therefore, from the invance itself, it is not necessary to calculate and hold the tax.

What payments to keep "non-monetary" ndfl

When paying ndfl from the advance in 2017, look at the table. We have led the current time sheet of personal income tax from the advance and salaries. The date when income arises and when NDFLs should pay different.

NDFL from an advance: when you pay in 2017

To begin with, we will understand whether it is necessary to pay personal income tax on the NDFL in 2017 or can I list the personal income tax on the day of salary? How not to overpay to employees and comply with the law? About everything in order.

Is it necessary to pay NDFL from the advance in 2017

Salary must be issued at least twice a month. And to list the tax from it - only once, no later than the next day after issuing the second part of the salary (paragraph 2 of Art. 223, paragraph 6 of Art. 226 Tax Code RF). Most companies do. Therefore, NDFL with salaries 2017 do not hold. There is no violation that the officials are confirmed (letters of the Federal Tax Service of Russia dated April 29, 2016 No. BS-4-11 / 7893, the Ministry of Finance of Russia dated October 27, 2015 No. 03-04-07 / 61550).

That is NFFL when paying an advance in 2017, it is not usually required to list.

When paying ndfl from the advance in 2017 to companies will have to

If on the last day of the month you pay an advance payment for this month, then you will definitely hold the tax. For NDFL targets, the last day of the month is the date of receipt of income in the form of remuneration. Therefore, even if the salary is paid in part, it is not recognized as an advance and tax on this amount must be kept. The legality of this approach was confirmed by the Supreme Court of the Russian Federation in determining on May 11, 2016 No. 309-kg16-1804.

How to list the tax, held with an advance on the initiative of the organization

Suppose the worker in the second half of the month went to the hospital. Salary during this time, it is not necessary to accrue. It turns out that the accountant will accrue the tax on the salary, and it will not be able to retain, since nothing. Therefore, from concerns to be in such a situation, the question of whether it is necessary to hold the NDFL from the advance in 2017, accountants decide positively. And then you hold the tax from the salary at least twice a month - with each payment.

Listing NDFL From the advance in 2017 it will not work early, if you send a tax to the budget after a complete calculation with employees (and from the advance, and from wages).

Example: Payment of NDFL from the advance in 2017

The worker receives salary (30,000 rubles) twice a month - 15,000 rubles. everytime. The deductions does not receive. With wages for the first part of September, the accountant held a tax in the amount of 1950 rubles. (15 000 rub. X 13%). September 20, the employee received 13 050 rubles. (15 000 - 1950). He received the same amount on October 5 - salary for the second half of September. October 6 Accountant listed the tax - 3900 rubles. (1950 + 1950). The payment period of NDFL from the advance in 2017 and with salaries coincided.

However, with this option of payment, NDFL from the advance in 2017 is difficult to fill 6-ndfl. The company has two options.

The first is to reflect in the calculation and advance, and salary separately. This is a time consuming method, because section 2 calculation will double. In addition, inspectors may have a question: why does the company reflect the income that is not yet? We will have to make explanations. But since the amount of tax listed in the budget does not affect, you do not need to clarify.

The second option to fill the 6-NDFL - not to show in the calculation of the advance and the tax deepened from it. That is, to do the same as if the company holds the tax only with salaries. Inspectors for this are not wondering, because this option does not affect the payment of tax. But in accounting and reporting will be confused, especially in the case of the salaries from the quarter.

It will be easier to reduce an advance to an amount equal to NFFL. But the tax itself is not held.

Changes in NDFL from the advance in 2017

At the expense of wage advances, it is possible to hold NDFL with moneyless income (the letter of the Ministry of Finance of Russia dated May 5, 2017 No. 03-04-06 / 28037). For example, if the employee received material benefits or other natural income.

Logic from officials is the following. The salary is given no less often than every half months (para. 10 of Art. 136 of the Labor Code of the Russian Federation). So, each part of it is an employee's income. Once an advance is also an income, then at the expense of it you can keep the tax, which refers to the material benefit, gift or other income in kind. The FNS also agree with this approach (see Comment below).

Opinion
The company has the right to keep the tax from MatveyGod at the expense of an advance

After the income recognized in the form of material benefits, hold the personal income tax at the expense of the nearest cash payments. Including the salary advances. But there are two limitations. The first is to keep tax in a similar situation, you can only within 50 percent of the cash payment (clause 4 of Art. 226 of the Tax Code of the Russian Federation). The second is to hold the tax not at the expense of all cash payments, but only at the expense of employee's revenues. For example, it is a salary and advance, premiums, hospital, vacation, money gifts. But, for example, due to daily, accountable and loans, NDFL cannot be held. These payments are not employee income.

Vladislav Volkov, Advisor to the State Civil Service of the Russian Federation of the 1st Class

Clarifications of officials do not concern NFFL from the invance itself. Tax on this payment hold and pay on the last day of the month for which salary accrued, or later.

Dates of payment of NDFL with salaries in 2017

The date for which a person received income is determined by Article 223 of the Tax Code of the Russian Federation. By wages - this is the day of payment of funds. On natural income is the day of issuing naturoplats. Income when muting is the date of credit (sub. 4, paragraph 1 of Art. 223 of the Tax Code of the Russian Federation).

The income of the Commanded Employee define on the last day of the month, in which the advance report was approved (sub. 6, paragraph 1 of article 223 of the Tax Code of the Russian Federation).

Important!
How to consider NDFL in 2017

Payments taxed at a rate of 13 percent are considered a growing outcome during the year. Ndfl, held in previous months, counted at the next payment. Exception is made for income from equity participation. The tax with them is retained separately for each payment. As well as in revenues taxable at other rates.

Dates of payment of NDFL in 2017 Table

When paying a profit of income in kind, the Tax Code impresses the tax agent to keep NDFL, calculated from this income, with the following payment of the same "physics" of money income. And what if the next such income will be an advance payment for the first half of the month? Do I need to hold "natural" ndfl with an advance or should you wait for any other income?

When determining the NDF unit, all taxpayer incomes obtained by both in cash and in kind (clause 1 of Article 210 of the NC) are taken into account. NDFL is calculated on the date of the actual receipt of income by the physician. This in the general case coincides on the day of the payment of income of the physical (paragraph 4 of Art. 226 NK). At the same time, the special procedure for obtaining it is established for certain types of income.
One of these exceptions is income in the form of remuneration.

"Labor" routine

Before switching to tax side The question is, it is worth reminding the requirements that are established for the procedure for paying the salary by labor legislation. In some sense, they predetermine and "tax" rules for work with income in the form of salary.
So, part 6 of Article 136 of the TC found that the wage is paid at no less than every half months. The specific date of payment of salaries is established by the rules of the internal labor regulation, a collective agreement or employment contract no later than 15 calendar days from the date of the end of the period for which it is accrued.
Thus, for the first half of the month, the salary should be paid within the number of the current period from the 16th to the 30th (31st), and for the second half from the 1st to the 15th day of the next month (see Letter from the Ministry of Finance dated February 14, 2017 N 14-1 / OOG-1293).
Note! The employer has the right to pay salary more often than twice a month. The main thing is that the payments are made at least than every half months. That is, it is possible to pay more frequent salary, it is impossible.

NDFL-consequences

As we have already noted, for NDFL targets, the head of 23 of the Tax Code has established a special procedure for determining the date of the actual receipt of income in the form of remuneration. Such in accordance with paragraph 2 of Article 223 of the Code is recognized as the last day of the month for which it is accrued. At the same time, according to paragraph 6 of Article 226 of the Code of Code, the tax agent must list the NDFL no later than the day following the day of payment of the income taxpayer.
Since the salary is paid in accordance with the TC at least two navigations, the question arises: should it be held with each of these parts by NDFL? I must say that at present, the Ministry of Finance, and representatives of the FNS for this expense adhere to a single opinion - the tax agent makes calculation, deduction and transfer to the NDFL budget with salaries (including the number for the first half of the month) once a month The final calculation of the income of the employee at the end of each month for which income was accrued in the time limits established in paragraph 6 of Article 226 of the Code (see the emails of the FTS dated January 15, 2016 N BS-4-11 / 320, Ministry of Finance dated October 27, 2015 G. N 03-04-07 / 61550).
Logic here is simple - NDFL from an advance payment is not calculated and is not deducted simply because at the time of payment of an advance before the expiration of the past month, income for the purposes of NDFL taxation is not yet obtained.

Example 1. In the organization according to the position of removal of remuneration, the advance payment of the 20th day of the current month is paid, and the salary - the 5th day of the next month.
When paying an advance NDFL is not detected. Salary tax is calculated on the last number of past month. The calculated amount of NDFL is held when paying the salary - the 5th day of the next month - and is listed in the budget no later than the 6th.
Suppose the salary of the employee is 30,000 rubles. On the 20th, he is paid an advance payment of 20,000 rubles. Ndfl is not calculated from it and is not held.
Ndfl with salaries in the amount of 3,900 rubles. (30,000 rubles. X 13%) is held when paying the remaining part of the salary. That is, the 5th of the employee will receive "on the hands" 6 100 rubles. (10 000 rub. - 3 900 rubles.).

Exceptional case

At the same time, there are situations where the tax agent will still have to calculate the NDFL salary advance payment. Such a duty occurs in the case when the advance payment for the first half of the month will be paid on the last day of this month. After all, under such circumstances, income is already considered to be obtained with everyone, as follows (see, for example, the Ministry of Finance, No. 03-04-06 / 69181, the definition of the entire May 11, 2016 N 309-kg16-1804, etc.).
Also, to keep NDFL from the advance will be and if the advance payment is paid upon the expiration of the spent month (see, for example, a letter of FTS dated March 24, 2016 N BS-4-11 / 4999). This can be both if, for one reason or another, the employer violates the payment period of the advance and in a situation where the salary of employees is paid more often than twice a month.

Example 2. In the organization, the salary is paid in three navigasses: the 20th of the current month, the 5th and 10th of the following month for the worked month.
In such a situation (if the salary is paid in deadlines) When the advance payment (20th) is paid, the NDFL is not detected and is not paid. And listed the retained salary tax follows no later than the 6th and on the 11th of the next month.

"Natural" problems

Since it is necessary to calculate and hold the NDFL with salaries twice - these are extra labor costs, as a rule, employers "salary" days are set in such a way that the advance for no circumstances falls on the last day of the month. Then the NDFL with salaries can be calculated, to keep and transfer to the budget once.
At the same time, it is impossible to say that thereby companies completely eliminate themselves from problems with NDFL when paying an advance. The fact is that when paying certain types of income, the tax agent may not be able to keep the tax. For example, an employee was presented with a TV or it is necessary to keep the NDFL from the calculated amount received by the employee of Matveygoda.
The fact is that the provisions of paragraph 4 of Article 226 of the Code oblige a tax agent to keep the accrued amount of tax directly from the taxpayer's income in their actual payments. In the paragraph of the same point, it is said that when paying an income taxpayer in a natural form or when receiving an income taxpayer in the form of material benefits, the deduction amount of the tax is made by the tax agent due to any income paid by the taxpayer in monetary form. At the same time, subparagraph 6 of paragraph 1 of Article 208 of the Code is provided that for income from sources in the Russian Federation, taxable NDFL, in particular, the remuneration for the taxpayer of labor duties in the Russian Federation. And the advance is a part of the remuneration of the employee. On this basis, the Ministry of Finance in the letter dated May 5, 2017 N 03-04-06 / 28037 came to the conclusion that an earlier "natural" NDFL or a tax from Matveygoda should be retained from the savance on a salary. The only thing that officials also noted is the amount held by the amount cannot exceed 50 percent of the amount of payment.

Example 3. An employee on May 22, 2017 on the occasion of his anniversary donated TV worth 30,000 rubles. Other gifts in 2017, he did not receive from the company. From this "natural" income ndfl will be 3,380 rubles. ((30,000 rubles. - 4 000 rubles.) X 13%).
Suppose, on May 25, 2017, the organization must pay an advance payment in the amount of 15,000 rubles.
Since 3 380 rubles. Less than half of the advance, when it is paid, "natural" ndfl is fully held. Thus, "on the hands" the employee will receive 11,620 rubles. (15 000 rub. - 3 380 rub.).