Calculation of compensation for vacation upon dismissal. Payment of monetary compensation for unused vacation upon dismissal

The procedure for dismissing an employee involves the need to resolve many issues that will confront HR employees. In the absence of sufficient experience, the question most often arises of what regulations regulate the payment and calculation of compensation for vacation days upon dismissal, how the day of dismissal is paid, etc.

The procedure for calculating leave compensation upon dismissal is one of the most common questions, since different methods can be used to solve it. But solving this issue can be greatly facilitated if you know exactly how the results obtained in the calculations are rounded.

How to calculate the number of unused vacation days of a resigning employee?

There is no methodology for calculating the number of vacation days due to a resigning employee in the Labor Code of the Russian Federation; the calculation procedure is given in the “Rules on regular and additional vacations” adopted and approved by the People's Commissariat of Labor of the USSR dated April 30, 1930 No. 169 (hereinafter referred to as the Rules).

This regulatory act is applied today only to the extent that does not contradict current labor legislation.

When calculating leave compensation upon dismissal, you should also be guided by the provisions of Art. 126 and 127 of the Labor Code of the Russian Federation. According to them, an employee who has not fully used the 28 days of annual paid leave guaranteed by law at the time of dismissal can count on monetary compensation for “underpaid” days. To calculate this compensation, it is necessary to determine how many such days to take into account in the calculation. To do this, you need to determine the number of months worked by the employee since the date of the last such leave and make a calculation proportional to this value.

When calculating, you need to know the rule according to which months and days worked during the year are rounded to the nearest whole.

According to paragraph 35 of the Rules, a month can be rounded up to a whole month in the case when the surplus is more than 15 days, in the case when during the month in which the employee quits, the number of days he worked was less than 15, this is the time when calculating vacation compensation when dismissal will not be taken into account.

For how many days is vacation compensation paid upon dismissal?

Every employee who has worked at the enterprise for more than six months has the right to annual paid leave, the duration of which in the usual case is at least 28 calendar days for the full year worked. The working year is taken to be a period of 12 months during which the employee retained his workplace(Article 121 of the Labor Code of the Russian Federation). At the same time, vacation is also included in the length of service that is taken into account for granting vacation, that is, after an employee has worked at the enterprise for 11 months, he is entitled to 28 days of paid vacation.

That is, full compensation for vacation upon dismissal is paid to an employee who has worked at the enterprise for at least 11 months without taking into account the vacation month or 12 months including it (clause 28 of the Rules). This calculation procedure guarantees the receipt of vacation compensation upon dismissal for an employee who has not worked for a full year for a short time, as in the case when, for example, he was granted vacation during a probationary period at the company. Summation and accounting of working days in months not fully worked is carried out in the manner described above in accordance with clause 35 of the Rules.

As stated in Art. 139 of the Labor Code of the Russian Federation, when calculating leave compensation upon dismissal, the average wage in the billing period is taken into account, which is equal to 12 calendar months.

To avoid any contradictions with clause 28 of the Rules, the full 11 months worked by an employee are rounded up to one year (although the wording of this clause often leads to discrepancies due to its inaccuracy). Some HR practitioners believe that full compensation for leave upon dismissal is due only to those employees who have worked at the enterprise for a full year, and those who have worked for 11 months are required to make a proportional calculation taking into account the number of fully worked calendar days. In this case, the employee’s compensation will not be paid in full, less than for 28 vacation days, which is illegal. Since rounding 11 months worked to a calendar year improves the employee’s position and does not contradict Art. 8 of the Labor Code of the Russian Federation, this approach will avoid labor and litigation disputes.

Methodology for calculating leave compensation upon dismissal in calendar days

In practice, several different methods are used to calculate leave upon dismissal and determine the number of days allotted for paid annual leave. Most often, the calculation is made in proportion to the number of months worked by the employee in the company. According to this method, vacation days are calculated only for 10 fully worked months, since for 11 and 12 months vacation compensation upon dismissal is made in in full- for 28 vacation days. According to this methodology, a coefficient of 2.33 is multiplied by the number of months worked in the organization. The coefficient 2.33 is the average number of vacation days, due to the employee for one fully worked month. It is obtained by dividing 28 days of vacation into 12 months. The results of this calculation are presented in the figure below.

Calculation of leave upon dismissal. Formula: 2.33 days multiplied by the number of months worked in the company.

It is necessary to note the contradiction inherent in this method. The provision of paragraph 28 of the Rules can be understood as follows: if an employee worked a full 11 or 12 months inclusive in a year, he is entitled to compensation for leave upon dismissal for a full year. As an example, let’s take a situation where an employee who was hired by an enterprise and did not take vacation worked for 11 months and decided to quit. If compensation is calculated proportionally, then only 11 out of 12 months will be taken into account in the calculation, but if he takes a vacation followed by dismissal, then the calculation of vacation pay will be made for a period of one year, since the vacation period will also take into account the vacation time (Art. 121 Labor Code of the Russian Federation). In this case, the employee receives the right to pay for all 28 days of annual leave, and in both the first and second cases his dismissal will take place on the same day. Therefore, in any case, an employee who has worked for a full 11 months must receive vacation compensation upon dismissal in full - for 28 calendar days. Rostrud also agrees with this method of calculation, as follows from the letter of this department dated October 31, 2008 No. 5921-TZ.

What are the rules for rounding the number of days when calculating vacation compensation upon dismissal?

If you use the methodology given above, the data obtained from the calculations will need to be rounded. This question is also important because the rounding order affects the amount of vacation compensation upon dismissal. The answer to this question is contained in the letter of the Ministry of Health and Social Development of the Russian Federation No. 4334-17 dated December 7, 2005, which states that since the result of the calculation is not vacation days, but monetary amounts, rounding may not be performed when obtaining intermediate results. If, nevertheless, the calculation procedure approved by the local regulatory act of the employer provides for such rounding, it can be done only if it is in favor of the employee, and not according to generally accepted arithmetic rules. For example, if in the end it turns out that the employee is entitled to 23.3 days of vacation compensation upon dismissal, rounding is done not to 23, but to 24 days. The rule by which rounding is carried out must also be enshrined in the employer’s local regulatory act - a collective agreement, regulations on wages or regulations on vacations.

How is vacation compensation calculated upon dismissal?

How are vacation pay calculated upon dismissal? Use the formula below.

To do this, it is necessary to multiply the employee’s average daily earnings by the number of unused vacation days. It should be taken into account that billing period depends on length of service in the company. If the length of service is more than a year, the last 12 months before the month of dismissal are taken into account as the calculation period. If the length of service is less, the calculation takes into account the entire period of work up to the month of dismissal (part three of Article 139 of the Labor Code of the Russian Federation, clause 4 of the Regulations approved by Decree of the Government of the Russian Federation No. 922).

In addition, in order to correctly calculate the average daily earnings necessary to calculate vacation compensation upon dismissal, you need to take into account those periods that are not included in the vacation period (Article 121 of the Labor Code of the Russian Federation). These are the periods when the employee was paid an average daily wage, such as temporary disability benefits. If he was on sick leave, his working year is extended and its end is postponed by the number of days of temporary disability and, accordingly, the right to leave also comes later (letter of Rostrud dated June 14, 2012 No. 854-6-1).

When during the billing period all days were worked by the employee in full, the average daily earnings are calculated using the formula:

Formula. How vacation pay is calculated upon dismissal: determining average daily earnings

Where:
SZRP - total earnings for the billing period;
12 - number of months in a year;
29.3 is the average number of days in a month.

When calculating compensation for additional leave upon dismissal, the same formulas and the same scheme are used. In the case where the employee took his vacation in advance, he must be deducted for those days that he did not actually work. Withholding can be made upon final settlement. If the amount of the final settlement did not cover the amount of deduction and the employee refuses to compensate for the resulting difference, there is only one way out - to recover it in judicial procedure.

In accordance with Art. 127 of the Labor Code of the Russian Federation, upon dismissal, an employee is paid monetary compensation for all unused vacations. In this case, it does not matter on what grounds the employment contract is terminated (letter of Rostrud dated July 2, 2009 N 1917-6-1).

How long is compensation paid for unused vacation upon dismissal?

Compensation for unused vacation paid to the employee on the day of dismissal. If the employee did not work on that day, then this amount must be paid no later than the next day after the dismissed employee submits a request for payment. This conclusion follows from Part 1 of Art. 140 Labor Code of the Russian Federation.

1. How to calculate days of unused vacation

In accordance with Part 1, Clause 28 of the Rules on regular and additional leaves, approved by the People's Commissariat of Labor of the USSR on April 30, 1930 N 169 (hereinafter referred to as the Rules), upon dismissal, the employee is paid compensation for unused leave.

In this case, an employee who has worked for at least 11 months is entitled to compensation for a full working year (part 2 of clause 28 of the Rules, letter of Rostrud dated December 18, 2012 N 1519-6-1). A similar rule applies to employees who have worked from 5 1/2 to 11 months if they are dismissed, in particular, on the following grounds (Part 3, Clause 28 of the Rules):

• liquidation of an organization or its individual parts;
• reduction of the organization's workforce;
• conscription of an employee for military service.

In its letters, Rostrud indicated that this norm applies only if the employee has worked in this organization for less than a year. Compensation for the second year is paid in proportion to the time worked (letters dated 03/04/2013 N 164-6-1, dated 08/09/2011 N 2368-6-1).

In all other cases, if the employee has worked for less than 11 months, the vacation days for which compensation must be paid are calculated in proportion to the months worked. This conclusion follows from part 4 of clause 28 of the Rules.

Surpluses amounting to less than half a month are excluded from the calculation, and surpluses amounting to more than half a month are rounded up to a full month (clause 35 of these Rules, letters of Rostrud dated December 18, 2012 N 1519-6-1 and dated October 31, 2008 N 5921- TK). That is, if an employee worked, for example, 12 days in a month, this month is not taken into account, and if more than half, the month is considered as a full month. Please note that when calculating days of unused vacation, it is not the calendar month that is taken into account, but the actual month worked (working month) from the date of hire. This follows from Art. 14 Labor Code of the Russian Federation.

For one fully worked month, an employee is entitled to 2.33 days of vacation (letter of Rostrud dated October 31, 2008 N 5921-TZ).

For example, an employee was hired by the organization on April 25, 2013, and left on June 14, 2013. In this case, the number of days of unused vacation is 4.66 calendar days (2.33 calendar days for the period from 04/25/2013 to 05/24/2013 and 2.33 calendar days for the period from 05/25/2013 to 06/14/2013).

It should be taken into account that when calculating compensation, rounding of the number of calendar days of unused vacation is not provided for by law. Therefore, if an organization decides to round, for example, to whole days, such rounding should be done not according to the rules of arithmetic, but in favor of the employee (letter of the Ministry of Health and Social Development of Russia dated December 7, 2005 N 4334-17).

For example, a vacation of 20.4 calendar days is rounded up to 21 days, not 20 days.

To calculate the amount of compensation for days of unused vacation, it is necessary to multiply the employee’s average daily earnings by the number of days (calendar or working) of unused vacation (paragraph 2, 4 clause 9 of the Regulations on the specifics of the procedure for calculating average wages, approved by Decree of the Government of the Russian Federation of December 24, 2007 N 922 (hereinafter referred to as the Regulations)).

For example, the length of service on the day of dismissal of the employee is five months. During the period of work, the employee was not provided with annual leave. The number of calendar days of unused vacation is 11.65 (5 months x 2.33), the average daily earnings is 1194.54 rubles. Thus, the amount of compensation for unused vacation will be 13,916.39 rubles. (11.65 x 1194.54 RUR).

How to calculate average earnings to compensate for unused vacation upon dismissal

Average daily earnings are calculated by dividing the employee's actual salary for the billing period by 12 and 29.3 (Part 4 of Article 139 of the Labor Code of the Russian Federation, Clause 10 of the Regulations). The indicated numbers have the following meanings:

• 12 - the number of calendar months of the billing period preceding the month in which the employee quits (parts 3, 4 of article 139 of the Labor Code of the Russian Federation, clause 4 of the Regulations). A calendar month is considered to be the period from the 1st to the 30th (31st) day of the corresponding month (in February - to the 28th (29th) day) inclusive (Part 3 of Article 139 of the Labor Code of the Russian Federation);
• 29.3 - average monthly number of calendar days.

For example, an employee quits on July 1, 2014. The wages accrued to the employee for the billing period from 07/01/2013 to 06/30/2014 amounted to RUB 420,000.00. (RUB 35,000.00 x 12). The average daily earnings for calculating compensation for unused vacation is 1194.54 rubles. (RUB 420,000.00 / 12 / 29.3).

A different procedure for calculating average daily earnings for payment of compensation for unused vacation is established for employees who are granted annual paid leave in working days. These include, in particular, persons who have entered into employment contracts for a period of up to two months or for the period of seasonal work. Paid leave for these employees is provided at the rate of two working days for each month of work (Articles 291, 295 of the Labor Code of the Russian Federation).

To determine the average daily earnings of such an employee, the amount of actually accrued wages must be divided by the number of working days according to the calendar of a six-day working week (part 5 of article 139 of the Labor Code of the Russian Federation, clause 11 of the Regulations).

For example, an employee worked for an organization under a fixed-term employment contract from 07/01/2015 to 08/14/2015. The wages accrued to the employee for July amounted to 90,000.00 rubles, for August 42,857.00 rubles. The number of working days for the time actually worked preceding the month of dismissal, i.e. from 07/01/2015 to 07/31/2015, according to the six-day working week calendar it is equal to 27. The average daily earnings for calculating compensation for unused vacation was 3333.33 rubles. (RUB 90,000.00 / 27).

If the employee did not have actually accrued wages or actually worked days for the billing period or for a period exceeding the billing period, or this period consisted of time that, in accordance with clause 5 of the Regulations, is excluded from the billing period, average earnings determined based on the amount of wages actually accrued for the previous period, equal to the calculated one. This follows from paragraph 6 of the Regulations. A similar opinion is expressed in the letter of the Ministry of Labor of Russia dated November 25, 2015 N 14-1/B-972. Despite the fact that in this letter the Ministry of Labor of Russia explains the application of clause 6 of the Regulations when calculating average earnings to pay for the time an employee undergoes a medical examination, we believe that these clarifications can also be taken into account when calculating average earnings to pay compensation for unused vacations. This conclusion follows from the analysis of Art. 185, part 1, 4, 5 art. 139 Labor Code of the Russian Federation, clauses 1, 6 of the Regulations.

If the employee did not have actually accrued wages or actually worked days for the billing period and before the start of the billing period, the average earnings are determined based on the amount of wages actually accrued for the days actually worked by the employee in the month in which the employee is dismissed. This conclusion follows from the analysis of the totality of Part 1 of Art. 127 Labor Code of the Russian Federation, clause 7 of the Regulations.

If the employee did not have actually accrued wages or actually worked days for the pay period, before the start of the pay period and before the day of dismissal, the average earnings are determined based on the tariff rate established for him, salary (official salary). This conclusion follows from the analysis of the totality of Part 1 of Art. 127 Labor Code of the Russian Federation, clause 8 of the Regulations.

2. How to make a deduction for vacation used in advance upon dismissal

According to Art. 122 of the Labor Code of the Russian Federation, an employee has the right to use vacation after six months of continuous work. Consequently, he can go on leave before the end of the working year for which it is granted.

After vacation or while on vacation, the employee has the right to terminate the employment contract at his own request (clause 3, part 1, article 77 of the Labor Code of the Russian Federation).

If an employee is dismissed before the end of the working year for which he has already received annual paid leave, the employer has the right to withhold the resulting debt from the employee’s wages for unworked vacation days (paragraph 5, part 2, article 137 of the Labor Code of the Russian Federation). Such retention is permitted in paragraph. 1 clause 2 of the Rules on regular and additional leaves (approved by the NKT of the USSR on April 30, 1930 N 169).

If the employer cannot withhold the overpaid amount for unworked vacation days due to the absence or insufficiency of the amount of payment due to the employee upon dismissal, the latter may reimburse it in voluntarily. The employer has no grounds for collecting the resulting debt in court due to Part 4 of Art. 137 Labor Code of the Russian Federation. This conclusion is confirmed judicial practice: Ruling of the Supreme Court of the Russian Federation dated March 14, 2014 No. 19-КГ13-18, Appeal ruling of the Moscow City Court dated December 4, 2013 in case No. 11-37421/2013.

An employer whose court has refused to satisfy a claim for debt collection for unworked vacation days will have to reimburse the employee for all legal expenses incurred in the case (state fees, expenses). In addition, the court may oblige the employer to pay compensation to the employee for moral damages if the latter has stated such requirement (part 4 of article 3, part 2 of article 22, article 237 of the Labor Code of the Russian Federation, part 1 of article 88, article 94, part 1 of article 98 of the Code of Civil Procedure of the Russian Federation, article 333.17 of the Tax Code of the Russian Federation).

It should be remembered that according to general rule the amount of all deductions for each payment of wages should not exceed 20 percent (Part 1 of Article 138 of the Labor Code of the Russian Federation). Therefore, if, taking into account this restriction, the employer was unable to withhold the entire amount of debt from the employee upon dismissal, the employee can voluntarily deposit the remaining amount into the cash register or transfer it to the employer’s bank account.

There are no grounds for collecting the specified amount from the employee in court (part 4 of article 137 of the Labor Code of the Russian Federation, part 3 of article 1109 of the Civil Code of the Russian Federation). This conclusion is confirmed by judicial practice (Decision of the Supreme Court of the Russian Federation dated October 25, 2013 N 69-KG13-6, Determination of the Moscow City Court dated 08/08/2011 in case No. 33-23166).

2.1. Grounds for termination of an employment contract in which deduction for vacation used in advance is impossible

Deductions upon dismissal of an employee before the end of the working year, for which he has already received annual paid leave, are not made if the employee quits on the following grounds (Part 2 of Article 137 of the Labor Code of the Russian Federation):

• the employee’s refusal to transfer to another job, which is necessary for him in accordance with a medical report issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, or the employer does not have the corresponding work (Clause 8, Part 1, Article 77 of the Labor Code of the Russian Federation) ;
• liquidation of an organization or termination of activities by an individual entrepreneur (clause 1, part 1, article 81 of the Labor Code of the Russian Federation);
• reduction in the number or staff of employees of an organization, individual entrepreneur (clause 2, part 1, article 81 of the Labor Code of the Russian Federation);
• change of owner of the organization’s property (in relation to the head of the organization, his deputies and the chief accountant) (clause 4, part 1, article 81 of the Labor Code of the Russian Federation);
• calling up an employee for military service or sending him to an alternative civilian service that replaces it (clause 1, part 1, article 83 of the Labor Code of the Russian Federation);
• reinstatement of an employee who previously performed this work by decision of the state labor inspectorate or court (clause 2, part 1, article 83 of the Labor Code of the Russian Federation);
• recognition of the employee as completely incapable of working in accordance with a medical report (clause 5, part 1, article 83 of the Labor Code of the Russian Federation);
• death of an employee or employer - an individual, as well as recognition by the court of an employee or employer - an individual as deceased or missing (clause 6, part 1, article 83 of the Labor Code of the Russian Federation);
• the occurrence of emergency circumstances that impede the continuation of labor relations (military operations, catastrophe, natural disaster, major accident, epidemic and other emergency circumstances), if this circumstance is recognized by a decision of the Government of the Russian Federation or a government body of the relevant subject of the Russian Federation (clause 7, part 1, art. 83 Labor Code of the Russian Federation).

2.2. Drawing up an order to withhold for unworked vacation days upon dismissal of an employee

To deduct from wages debts for unworked vacation days, the employer must issue an appropriate order. There is no unified form for such an order, so the employer has the right to draw it up in any form. The order should indicate your full name. and the position of the employee, the amount of time actually worked and calendar days of vacation.

Based on this order, no more than 20 percent of his salary can be collected from the employee. If the debt is more than 20 percent, then the excess amount is repaid by the employee voluntarily.

In practice, it is not uncommon for an employer to pay compensation to an employee for unused vacation. In what cases is it permissible to replace vacation with monetary compensation? What are the features of calculating this type of payment? Is monetary compensation for part of the vacation exceeding 28 calendar days included in labor costs? Is monetary compensation for unused vacation days subject to UST? We will try to answer these questions in this article.

Labor Code requirements
regarding the provision of leaves to employees

Article 122 of the Labor Code of the Russian Federation the employer's obligation to annually provide the employee with paid leave lasting 28 calendar days ( Art. 115 Labor Code of the Russian Federation). Transferring vacation to the next year is allowed (by agreement of the parties) only in exceptional cases (in particular, when an employee going on vacation in the current year may negatively affect the organization’s activities). In this case, the employee must use the days of the transferred vacation no later than 12 months after the end of the working year for which the vacation was granted.

An employer is prohibited from not providing an employee with annual paid leave for two consecutive years ( Art. 124 Tax Code of the Russian Federation). At the same time, employees under the age of 18, as well as those employed in jobs with harmful and (or) dangerous working conditions, are obliged to provide leave annually.

Thus, the law establishes strict restrictions for employers regarding the provision of leaves to employees. However, in practice, workers often accumulate unused vacations from previous years. In this case, the employer retains the obligation to provide the employee with these vacations or pay him monetary compensation for their unused days.

In what cases is it paid?
cash compensation for unused vacation?

Cash compensation for unused vacation is paid upon dismissal ( Art. 127 Labor Code of the Russian Federation), as well as at the written request of the employee for part of the vacation exceeding 28 calendar days ( Art. 126 Labor Code of the Russian Federation).

It should also be taken into account that replacing vacation with monetary compensation is not allowed:

pregnant women;

employees under the age of eighteen;

workers engaged in heavy work and work with harmful and (or) dangerous working conditions.

Calculation of compensation for unused vacation

The amount of compensation for unused vacation upon dismissal (including for organizations that use summarized working time recording) is calculated as follows:

Calculation of average daily (hourly) earnings for payment of compensation for unused vacation is carried out according to the rules established Art. 139 Labor Code of the Russian Federation And Regulations on the calculation of average wages, and is calculated for the last three calendar months (unless another billing period is provided for by the collective agreement) by dividing the amount of actually accrued wages by the estimated number of days (hours actually worked) for the billing period.

Upon dismissal...

The most common case when monetary compensation is given for unused vacation is the dismissal of an employee. Let us note that upon dismissal, an employee, upon his application, may be granted all unused vacations (both main and additional), except if his dismissal is associated with guilty actions. The day of dismissal of the employee will be considered the last day of his vacation. In this case, the vacation granted to the employee is paid, and, accordingly, compensation for unused vacation upon dismissal is not paid.

Please note: compensation for unused vacation is also paid to employees who leave the organization by transfer (on the basis provided for clause 5 art. 77 Labor Code of the Russian Federation).

In practice, when determining the number of vacation days to which an employee is entitled while working in an organization, certain difficulties arise. The fact is that the Labor Code of the Russian Federation provides for a specific procedure for calculating days of unused vacation only for employees who have entered into an employment contract for a period of up to two months, due to Art. 291 Labor Code of the Russian Federation They are paid compensation at the rate of two working days per month of work. For other categories of workers, the mechanism for such calculation is not specified in the Labor Code of the Russian Federation.

The following calculation option is generally accepted. If the employee has worked for the organization for 12 months, which includes the vacation itself ( Art. 121 Labor Code of the Russian Federation), then he is entitled to annual leave of 28 calendar days. In other words, full compensation is paid to an employee who has worked for the employer for 11 months ( clause 28 of the Rules on regular and additional leaves, further - Rules). If the resigning employee has not worked a period that entitles him to full compensation for unused vacation, compensation is paid in proportion to the days of vacation for the months worked ( clause 29 of the Rules).

When calculating the terms of work that give the right to compensation for leave upon dismissal, surpluses amounting to less than half a month are excluded from the calculation, and surpluses amounting to more than half a month are rounded up to a full month ( clause 35 of the Rules).

Compensation is paid in the amount of average earnings for 2.33 days (28 days / 12 months) for each month of work.

Example 1.

The employee worked for the organization for 10 months. Upon dismissal, he is entitled to compensation for 23.3 days (2.33 days x 10 months). If he had worked for 11 months, he would have received compensation for a full month - 28 calendar days.

Thus, the 11th month of work gives the employee the right to receive compensation for 4.7 days (28 - 23.3).

Please note: the specified standards for the payment of compensation worsen the situation of dismissed employees who have worked for less than 11 months, compared to persons dismissed after 11 months of work. However, an attempt to challenge the provisions clause 29 of the Rules in the Supreme Court of the Russian Federation was unsuccessful ( Decision of the Supreme Court of the Russian Federation dated December 1, 2004 No. GKPI04-1294, Determination of the Supreme Court of the Russian Federation dated February 15, 2005 No. KAS05-14), since, according to the judges, the principle of proportional calculation of compensation is fully consistent with the similar principle contained in Art. 291 Labor Code of the Russian Federation. The very fact that paragraph 28 of the Rules provides for the right of an employee who has worked for at least 11 months upon dismissal to receive full compensation for unused vacation cannot in itself indicate the presence of any contradictions between paragraph 29 of the Rules and the provisions of Articles 3, 114 and 127 Labor Code of the Russian Federation.

Some organizations use a different calculation method, which is reflected in the collective agreement (or wage regulations). Since the working year is divided into approximately 11 months of work and 1 month of vacation, each month the employee earns a vacation entitlement of 2.55 days (28 days / 11 months). From a mathematical point of view, this method of calculation is more correct and does not worsen the terms of payment of compensation for unused vacation upon dismissal of employees. However, its use will lead to an increase in labor costs, and this will most likely be regarded by the inspection authorities as an understatement of the tax base for income tax. If disagreements arise with the tax authorities, you will only have to defend your position in court.

Example 2.

I. I. Ivanova started working on 08/02/03. In 2004, she was on regular annual leave from June 1 to June 28 (28 calendar days). In 2005, I. I. Ivanova was not on vacation. In April 2006, she wrote a letter of resignation of her own free will (from 04/24/06).

The employee's salary is 10,000 rubles. per month. In addition, she was awarded:

in January 2006 - a bonus based on the results of work for 2005 in the amount of 3,000 rubles. and a monthly bonus for meeting production targets in December 2005 - 500 rubles;

in February - bonus for meeting production targets in January 2006 - 600 rubles;

in March - bonus for meeting production targets in February 2006 - 700 rubles;

in April - bonus for meeting production targets in March 2006 - 800 rubles. and a performance bonus forIquarter 2006 in the amount of 2,000 rubles.

The duration of the billing period in the organization is 3 months. The billing period has been fully worked out.

Let us remind you that upon dismissal of an employee, the calculation of payments due to him (including compensation for unused vacation) is carried out in a unified Form No. T-61 “Note-calculation upon termination (termination) of an employment contract with an employee (dismissal)”. So, we present a step-by-step calculation of compensation for the unused vacation of I. I. Ivanova.

1) Determine the amount of actually accrued wages for the billing period (January - March 2006). It includes:

the employee's official salary for three months in the amount of 30,000 rubles. (RUB 10,000 x 3 months);

bonus based on work results for 2005 in the amount of 750 rubles. (RUB 3,000 / 12 months x 3 months);

bonuses for meeting production targets in the amount of 1,800 rubles, including: 500 rubles. (since it was accrued in the month that falls within the billing period), 600 and 700 rubles.

Please note: the monthly bonus for meeting production targets in March 2006 (800 rubles), as well as the quarterly bonus based on the results of work for the first quarter of 2006 (2,000 rubles) are not taken into account, since they were accrued in a month beyond the calculated period (in April).

Thus, the amount of actually accrued wages in the billing period will be 32,550 rubles. (30,000 + 750 + 1,800).

2) Calculate the average daily earnings for the billing period: (32,550 rubles / 3 months / 29.6 days) = 366.55 rubles.

3) Determine the number of vacation days that remain unused. Let us remind you that an employee is granted leave for the time he has worked, and not for the calendar year. In other words, the calculation of the period for the right to receive leave begins from the date when the employee began work, and not from the beginning of the calendar year.

The first working year of I. I. Ivanova ended on 08/01/04, the second - on 08/01/05. During this time, the employee is entitled to 56 days of vacation (28 days x 2 years).

From August 2, 2005 to April 24, 2006, the third working year lasted, including 7 full months and one incomplete (from 04/02/06 to 04/24/06). Moreover, the latter is equivalent to a full working month, since it includes more than 15 calendar days. Thus, in the third year of work in the organization, I. I. Ivanova earned 8 full months of vacation, that is, she had the right to 19 days of paid vacation (2.33 days x 8 months = 18.64 days).

The total number of vacation days earned by I. I. Ivanova is 75 (56 + 19). Consequently, upon dismissal, she is entitled to compensation for 47 days (75 - 28).

4) So, let's calculate compensation for unused vacation: 366.55 rubles. x 47 days = 17,227.85 rub.

Please note: There are cases when, when calculating compensation, accountants determine the number of days of unused vacation in the last working month in a simplified version. In their opinion, if an employee quits before the 15th, he does not have the right to vacation days for the last month, if after the specified date - accordingly, he has such a right. However, this approach is incorrect and can lead to errors when calculating compensation payments. Therefore, the calculation should be made according to established rules: take into account how many days in total the employee worked in the first and last months of work in the organization, and also be sure to calculate the length of service that gives the right to annual paid basic leave ( Art. 121 Labor Code of the Russian Federation).

If the employee continues to work for the organization...

Article 126 of the Labor Code of the Russian Federation allows the employer ( Attention! It is his right, and not his obligation), by agreement with the employee, to replace the latter’s part of the vacation exceeding 28 calendar days with monetary compensation. At the same time, it is impossible to compensate for the main vacation for the current year with money ( Letter of the Ministry of Finance of the Russian Federation dated 02/08/06 No. 03-05-02-04/13).

Unfortunately, this article does not clearly define the situation and can be read in two ways. On the one hand, we can assume that out of the available number of days of unused vacation (for example, an employee has not been on vacation for 3 years, which means he has accumulated 84 days of vacation), he must take 28 days off in any case, and the remaining 56 days (84 - 28) ask to replace it with monetary compensation.

On the other side, Art. 126 Labor Code of the Russian Federation can be assessed as follows. Let's assume that the employee is entitled to a basic vacation of 28 days and an additional one of 3 days, which is added to the main one. He didn't receive them for two years. As a result, 56 days of the main vacation must be provided with days of rest, and only the accumulated additional 6 days can be compensated in cash.

This duality will persist until amendments are made to the Labor Code of the Russian Federation. Accordingly, the explanations given in Letter of the Ministry of Labor dated April 25, 2002 No. 966-10, according to which, due to the uncertainty of the legislative wording, two options for paying monetary compensation are possible. The choice is made by agreement of the parties. That is, the employer and employee must agree on how many days of unused vacation for previous years should be replaced with monetary compensation.

Calculation of taxes on compensation for unused vacation

Personal income tax

When paying compensation for unused vacation, the employer is obliged to calculate and pay personal income tax on this amount ( clause 3 art. 217 Tax Code of the Russian Federation). Since compensation for unused vacation upon dismissal must be paid to the employee on the day of dismissal ( Art. 140 Labor Code of the Russian Federation), then the tax withheld from it must be transferred to the budget upon its actual payment ( clause 4 art. 226 Tax Code of the Russian Federation), in particular, not later in the day actual receipt of cash from the bank cash for payment of compensation either on the day of transfer of this amount to the employee’s account or on his behalf to the accounts of third parties ( clause 6 art. 226 Tax Code of the Russian Federation).

Cash compensation in lieu of leave exceeding 28 calendar days, paid at the request of the employee and not related to dismissal, is usually paid along with the salary for the corresponding month ( clause 3 art. 226 Tax Code of the Russian Federation).

UST, contributions to the Pension Fund and compulsory social insurance
from accidents at work

Subclause 2 of clause 1 of Art. 238 Tax Code of the Russian Federation it has been determined that compensation for unused vacation paid to a resigning employee is not subject to unified social tax ( Letters of the Ministry of Finance of the Russian Federation dated September 17, 2003 No. 04-04-04/103, UMNS for Moscow dated March 29, 2004 No. 28-11/21211), as well as contributions to compulsory pension insurance (clause 2 art. 10 Federal Law dated December 15, 2001 No. 167-FZ) and contributions to compulsory social insurance against accidents at work and occupational diseases ( clause 1 of the List of payments that are not accrued insurance premiums in the FSS of the Russian Federation, further - Scroll,n. 3 Accrual rules, accounting and expenditure of funds for the implementation of compulsory social insurance against accidents at work and occupational diseases).

For compensation paid upon the written application of employees who continue to work in the organization, different taxation rules are established. According to the Ministry of Finance, such payments are subject to UST taxation on a general basis ( Letters of the Ministry of Finance of the Russian Federation dated 02/08/06 No. 03-05-02-04/13,dated 16.01.06 No. 03-03-04/1/24,Federal Tax Service for Moscow dated August 15, 2005 No. 21-11/57993). In addition, the accountant should not forget about contributions to the Social Insurance Fund.

Please note: Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 14, 2006 No. 106 clarified that Clause 3 of Article 236 of the Tax Code of the Russian Federation does not provide the taxpayer with the right to choose which tax (unified social tax or income tax) to reduce the tax base for the tax by the amount of the corresponding payments. In other words, if the taxpayer has the right to attribute compensation payments for unused vacation to expenses that reduce the taxable base for income tax, then he must accrue unified tax on them.

Example 3.

In accordance with Art. 119 of the Labor Code of the Russian Federation, the organization provides an employee with irregular working hours with annual additional paid leave, the duration of which is determined by the collective agreement and is 3 calendar days.

At the request of the employee (upon agreement with the administration), part of the unused vacation exceeding 28 calendar days is replaced by monetary compensation. .

Due to the fact that the specified compensation payment is taken into account for profit tax purposes on the basis clause 8 art. 255 Tax Code of the Russian Federation, it must be subject to UST.

Please note: there are cases when local tax authorities insist on levying unified social tax on compensation for unused vacation not related to dismissal, if this payment was not taken into account as expenses for profit tax purposes. It should be noted that the courts on this issue take the side of taxpayers (see, for example, Resolution of the Federal Antimonopoly Service UO dated December 21, 2005 No. Ф09-5669/05-С2, CO dated December 15, 2005 No. A64-1991/05-10, SZO dated January 28, 2005 No. A66-6613/2004).

Let us give one more opinion on this issue. But let us immediately note that it is quite risky and will inevitably lead to disputes with the tax authorities. The essence of this approach is as follows: based on pp. 2 p. 1 art. 238 Tax Code of the Russian Federation from UST taxation all types established by law are exempt Russian Federation, legislative acts of the constituent entities of the Russian Federation, decisions of representative bodies of local self-government of compensation payments related to the performance by an individual of labor duties within the limits established in accordance with the legislation of the Russian Federation. Replacement of part of annual paid leave with compensation is provided Art. 126 Labor Code of the Russian Federation. The concept of compensation is not established in tax legislation, therefore it should be used in the meaning in which it is used in the Labor Code of the Russian Federation ( clause 1 art. 11 Tax Code of the Russian Federation). Therefore, all requirements established Art. 238 Tax Code of the Russian Federation, and there is no need to accrue UST for the amount of compensation paid based on written statements from employees (regardless of whether such payments are taken into account for profit tax purposes).

Since monetary compensation in return for part of the vacation exceeding 28 calendar days is provided Art. 126 Labor Code of the Russian Federation, and the Tax Code does not establish other rules, then by virtue of clause 1 art. 11 Tax Code of the Russian Federation The norms of the Labor Code of the Russian Federation are subject to application. Thus, in this case, all the requirements established Art. 238 Tax Code of the Russian Federation. Therefore, it is not necessary to accrue UST for the amount of compensation paid upon the written application of employees who continue to work in the organization (regardless of whether such payments are taken into account or not taken into account for profit tax purposes). There is also positive arbitration practice in the case considered (see, for example, resolutionsFAS NWO dated 02/04/05 No. A26-8327/04-21, from 07.11.05No. A05-7210/05-33). A taxpayer who has decided to replace part of the vacation exceeding 28 calendar days with monetary compensation has the right to take this payment into account in labor costs in accordance with clause 8 art. 255 Tax Code of the Russian Federation. At the same time, there is no need to accrue UST for this payment.

Let's say a few words about contributions for compulsory insurance against accidents at work: they are not calculated on the amount of compensation for unused vacation ( item 1 of the List).

Income tax

When calculating corporate income tax, the amount of monetary compensation for unused basic leave not related to dismissal, paid in accordance with labor legislation, is taken to reduce the tax base. The basis is clause 8 art. 255 Tax Code of the Russian Federation(cm., letters from the Russian Ministry of Financedated 16.01.06 No. 03-03-04/1/24, Federal Tax Service for Moscow dated August 16, 2005 No. 20-08/58249). At the same time, if the employer and employees have reached an agreement to pay monetary compensation for all days of unused vacation, then the unused vacations are combined, including for those periods when the Labor Code of the Russian Federation was in force, which did not allow such compensation, except upon dismissal of an employee.

Regarding monetary compensation in return for additionally provided according to the collective vacation agreement (that is, on the employer’s own initiative), then such expenses are not taken into account for tax purposes. This point of view is presented, in particular, in Letter of the Ministry of Finance of the Russian Federation dated September 18, 2005 No. 03-03-04/1/284.

It should be noted that not all experts agree with it. The fact is that the Ministry of Finance, referring to clause 24 art. 270 Tax Code of the Russian Federation, equated the costs of paying compensation to the costs of paying for vacations. But in the Tax Code of the Russian Federation these concepts are separated: the amount of compensation for unused vacation is included in labor costs on the basis clause 8 art. 255 Tax Code of the Russian Federation, and vacation pay - according to clause 7 art. 255 Tax Code of the Russian Federation. At least for this reason it is impossible to put an equal sign between them. At the same time in Art. 270 Tax Code of the Russian Federation only the costs of paying for additional vacations are mentioned (and not compensation for unused vacation).

From the foregoing, we can conclude that the Tax Code of the Russian Federation does not prohibit taking into account, when calculating income tax, the costs of paying compensation in return for additional vacations (regardless of whether such vacation is provided for by labor legislation or collective and (or) employment agreements). It is clear that such a point of view is unlikely to be accepted by regulatory authorities, so you will most likely have to defend your case in court.

There are categories of employees who, in accordance with the Labor Code and other federal laws, are granted extended basic leave, but they are not considered within the framework of this article.

Regulations on the specifics of the procedure for calculating average wages, approved. Decree of the Government of the Russian Federation dated April 11, 2003 No. 213.

A collective agreement may establish a different settlement period for payment of compensation for unused vacation (for example, 6 months, a year), if this does not worsen the situation of employees (Article 139 of the Labor Code of the Russian Federation).

Clause 28 of the Rules on regular and additional leaves, approved. People's Commissariat of Labor of the USSR 04/30/30 (valid to the extent that does not contradict the Labor Code of the Russian Federation).

Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 No. 1.

If the employee had quit, for example, on April 10, 2006, then she would not have been entitled to compensation for the last part-time working month, since she was at the workplace for less than 15 calendar days.