Severance pay. Additional severance pay upon dismissal of an employee under an agreement: taxation and insurance contributions. calculation of severance pay in case of layoff

When calculating severance pay for an employee hired on July 1, 2010 and dismissed on January 29, 2016, the calculation period will be the period from February 1, 2015 to January 29, 2016.

Severance pay calculated based on the number of working days in February 2016, i.e. within 20 working days.

The employee's average earnings for calculating severance pay are determined by multiplying the average daily earnings by the number of working days in the period subject to payment. In this case, the average daily earnings are calculated by dividing the amount wages, actually accrued for the billing period, for the number of days actually worked during this period.

The amounts of severance pay and average earnings for the second and third months after dismissal are not subject to personal income tax. If the amount of payments in connection with dismissal exceeds three times the average monthly earnings, then these payments are subject to personal income tax in the amount that generally exceeds three times the average monthly earnings.

Severance pay and average monthly earnings for the period of employment are not subject to insurance contributions to the Pension Fund, the Social Insurance Fund of the Russian Federation and the Federal compulsory medical insurance fund, as well as insurance contributions for compulsory social insurance against industrial accidents and occupational diseases in a part not exceeding three times the average monthly earnings.

Amounts of payments to an employee released due to a reduction in the number or staff of an organization's employees are included in the organization's labor costs for income tax and are recognized monthly on the date of their accrual.

Upon termination employment contract in connection with a reduction in the number or staff of the organization's employees, the dismissed employee is paid severance pay in the amount of average monthly earnings, and he also retains the average monthly salary for the period of employment, but not more than two months from the date of dismissal (including severance pay) (clause 2 Part 1 of Article 81, Part 1 of Article 178 of the Labor Code of the Russian Federation).

Moreover, on the day of dismissal, the employee is paid severance pay in the amount of average monthly earnings for working days in the period from 02/01/2016 to 02/29/2016. Subsequently, if the employee does not find a job within two months, he is given an additional payment calculated in the amount of average earnings for all working days for the second month after dismissal (from 03/01/2016 to 03/31/2016).

In exceptional cases, the average monthly salary is retained by the dismissed employee for the third month from the date of dismissal by decision of the employment service body, provided that within two weeks after the dismissal the employee applied to this body and was not employed by it (Part 2 of Article 178 of the Labor Code RF).

On the day of termination of the employment contract, the organization is obliged to issue the employee a work book and make a final settlement with him (part 4 of article 84.1, part 1 of article 140 of the Labor Code of the Russian Federation).

Severance pay is calculated in the amount of average monthly earnings, the amount of which is determined in the manner established by Art. 139 of the Labor Code of the Russian Federation, taking into account the norms of the Regulation on the specifics of the procedure for calculating average wages, approved. Decree of the Government of the Russian Federation dated December 24, 2007 No. 922 (hereinafter referred to as the Regulations).

Average daily earnings are calculated based on the wages actually accrued to the employee and the time actually worked by him for the twelve calendar months preceding the period during which the employee retains his wages. In this case, the calendar month is considered to be the period from the 1st to the 30th (31st) day of the corresponding month inclusive (in February - to the 28th (29th) day inclusive) (Part 3 of Article 139 of the Labor Code of the Russian Federation, p. .4 Regulations). To calculate average earnings, the wages accrued to the employee for the billing period are taken into account in accordance with the official salary (clause “a”, clause 2 of the Regulations).

The average employee's earnings for calculating severance pay are determined by multiplying the average daily earnings by the number of working days in the period subject to payment; in this case, the average daily earnings are calculated by dividing the amount of wages actually accrued for the billing period by the number of days actually worked during this period (paragraphs 3, 4, 5 of clause 9 of the Regulations).

In this case, the employee’s average daily earnings, calculated based on the number of working days in billing period(from 02/01/2015 to 01/29/2016), is equal to: wages accrued for the billing period / number of working days worked in the billing period.

The amount of severance pay is calculated by multiplying the average daily earnings by the number of working days in the period from 02/01/2016 to 02/29/2016 (20 days).

The average salary retained by the employee for the second month is calculated in the same manner as severance pay. This conclusion follows from a literal reading of Part 3 of Art. 139 and parts 1, 2 art. 178 Labor Code of the Russian Federation.

Thus, average earnings, accrued to the employee for March is: average daily earnings x 21 days, where 21 days. − number of working days in March.

For documentary substantiation payment of average earnings for the period of employment, you should take an application and a copy of the work book from the former employee, which contains no employment records. The application can be made in free form. A copy of the work record book must be certified by the signature of a personnel service employee.

Payment of average earnings for the period of employment is not wages, which means that it is not necessary to pay it within the terms established by the collective (labor) agreement for the payment of wages. Therefore, the payment of amounts is carried out after the expiration of the second and third months within the terms agreed upon by the dismissed employee with the administration of the organization. This may also be the day designated by the organization for paying wages for the second half of the month.

The amounts of severance pay and average earnings retained by the employee are expenses for common species activities and are recognized in the corresponding amounts in January, April, May 2016 (clauses 5, 18 of the Regulations on accounting“Expenses of the organization” PBU 10/99, approved. Order of the Ministry of Finance of Russia dated May 6, 1999 No. 33n).

The amounts of severance pay and average earnings for the second and third months after dismissal are not subject to personal income tax. If the amount of payments upon dismissal exceeds three times the average monthly salary, then these payments are subject to personal income tax in a part that generally exceeds three times the average monthly salary (clause 1 of article 210, paragraph 1, 6, 8 of clause 3 of article 217 Tax Code RF).

The amounts of severance pay and average earnings paid for the second and third months after dismissal are not subject to insurance contributions to the Pension Fund of the Russian Federation, the Federal Social Insurance Fund of the Russian Federation, Federal Fund Compulsory medical insurance, as well as insurance contributions for compulsory social insurance against accidents at work and occupational diseases in a part not exceeding three times the average monthly earnings (clause “e”, paragraph 2, part 1, article 9 Federal Law dated July 24, 2009 No. 212-FZ “On insurance premiums in Pension Fund Russian Federation, Foundation social insurance Russian Federation, Federal Mandatory Fund health insurance", pp. 2 p. 1 art. 20.2 of the Federal Law of July 24, 1998 No. 125-FZ “On compulsory social insurance against industrial accidents and occupational diseases”).

Amounts of payments to an employee released due to a reduction in the number or staff of the organization's employees are related to the organization's expenses for wages for the purpose of calculating income tax and are recognized monthly on the date of their accrual (clause 9, part 2, article 255, clause 4, art. 272 of the Tax Code of the Russian Federation).

T.V. Lipkina,
Ph.D., lawyer, head of consulting
legal department of the U-Soft Group of Companies

When terminating an employment contract with an employer, in some cases an employee can count on receiving severance pay. This right is provided to him by Article 178 of the Labor Code of the Russian Federation.

Essentially, severance pay is monetary compensation paid to an employee in connection with dismissal for reasons beyond his control. This compensation guarantees material support while looking for a new job.

The legality of ending the employment relationship is ensured by compliance with the Labor Code of the Russian Federation and the terms of the Employment Agreement. Simply put, there must be sufficient grounds for dismissing an employee. Each of them has its own dismissal procedure in 2019.

A common point is the issuance of an order from the manager indicating the reasons for dismissal and final payments. A record of dismissal is made in the work book, indicating the article of grounds according to the Labor Code of the Russian Federation.

The deadline for final payment (including payment of severance pay) is the last day of work. In some cases, the employee retains his average daily earnings for a period of up to 3 months (up to 6 months for regions of the Far North and equivalent territories).

Who is paid severance pay?

1. Employees dismissed due to the liquidation of the enterprise
2. Employees who have been reduced in staff or number of enterprises
3. An employee called up for military or alternative service
4. An employee taking the place of a previously dismissed employee who has been reinstated by a court or labor inspectorate
5. An employee who refuses to be transferred to another location due to the employer’s relocation
6. An employee who cannot perform his duties according to a medical report, in case of refusal to transfer to another job or lack of suitable work
7. An employee who is completely unable to work due to health reasons
8. To an employee if he refuses significant changes in working conditions
9. A manager dismissed from office by decision of the founders (clause 2 of Article 278 of the Labor Code), in the absence of guilty actions on his part
10. To the manager, his deputies and the chief accountant removed from their positions by the new owners of the enterprise
11. An employee dismissed due to the cancellation of an employment contract, if such a contract was concluded in violation of the law due to the fault of the employer. We are talking about significant violations that interfere with the performance of official duties:
12. A court decision according to which a person does not have the right to hold certain positions;
13. Lack of special education;
14. Presence of obstructive diseases.

It should be noted that if the employer at the time of concluding the employment contract did not require from the applicant a document confirming the fact of absence established by law restrictions on work, then regardless of whether the employee knew about these restrictions or did not know, he is entitled to severance pay in the event of dismissal under such circumstances.

Who is NOT paid severance pay?

• upon dismissal of one's own free will (clause 3, part 1, article 77)
• upon dismissal at the initiative of the employer, when the employee committed an offense incompatible with the continuation of the employment relationship (on the grounds of Article 81 of the Labor Code, which provides for the employee’s guilt)
• if unsuccessful probationary period(Part 1 Article 71)
• upon dismissal by agreement of the parties (clause 1, part 1, article 77)
• upon termination of an employment contract with a validity period of less than two months (fixed-term employment contract) (clause 2, part 1, article 77)

Severance pay in 2019

The amount of severance pay depends on two values: the employee’s average earnings and the period that the employer compensates.

1)The benefit in the form of two weeks' average earnings is due to:

• If the employer does not have a position that corresponds to the employee’s health status in accordance with the medical report
• Complete loss of ability to work
• Conscript to the armed forces
• If you refuse to move to another area
• In case of reinstatement of the former employee
• Disagreement with new working conditions
• Dismissal of seasonal workers due to enterprise liquidation and layoffs

2) Payment of one average monthly earnings guaranteed upon termination of an employment contract concluded in violation of the law.

3) Managers and chief accountants dismissed due to a change of owners or by decision of the founders can count on three average monthly earnings.

The largest compensation payments are provided for by law in the event of liquidation of enterprises. These also include cases of reduction in numbers and staff. In addition to one average monthly salary, the employer is obliged to maintain the employee’s average salary for two months for the period of employment.

By decision of the employment center, this period can be extended by 1 month. For regions of the Far North and territories equivalent to them, these periods increase up to 6 months. The Labor Code specifies the minimum limits for severance pay. The enterprise may have a collective agreement or other local regulations that guarantee increased benefits and compensation.

Calculation of severance pay using an example

To calculate many types of payments, the amount of average earnings is used, the calculation procedure of which is described in Article 139 of the Labor Code of the Russian Federation. Average daily earnings are determined by dividing the sum of all payments to an employee for the billing period by the number of days actually worked during this period. For these purposes, the law establishes a billing period equal to the previous 12 calendar months.

The benefit amount is calculated using the formula: Benefit = SDZ * RDP

where, SDZ – average daily earnings;

RDP – working days of the period for which benefits are paid.

Let's look at an example:

Courier Savkin V.A. resigns due to conscription into the army. November 6 is his last day of work. Salary of Savkin V.A. is 12,000 rubles per month. He has been working at the company since May 15 of this year on a five-day work week. The entire period has been fully worked out. On the day of dismissal, Savkin must be paid wages for November, compensation for unused vacation and two weeks' severance pay. We will not consider compensation calculations in this example.

There are 21 working days in November, Savkin V.A. worked 5 of them. We calculate wages for November:

12000: 21 * 5 = 2858 rubles

To calculate severance pay, you need to calculate your average daily earnings.

Formula: SDZ = ZP / OD

Salary – earnings for the billing period (5 months)

OD – number of days worked

The billing period is 12 calendar months from the 1st to the 30th (31st). But in our case, the employee has only 5 of them (from June 1 to October 31), which corresponds to 109 working days according to the production calendar, which are fully worked. Let's take these 5 months into account.

Average daily earnings = (12000 * 5 months)/109 = 550.46 rubles

Since severance pay is paid for working days, and not for calendar days, only 10 days (minus weekends) are taken into account in calculating the two-week (14-day) pay. And if in the next two weeks after the day of dismissal there are also holidays, then they are also subtracted.

Severance pay = 550.46 * 10 = 5504.60 rubles

Taxation of severance pay personal income tax

Severance pay relates to income individuals, not subject to taxation in accordance with Article 217 of the Tax Code of the Russian Federation. In terms of the norms established by the Labor Code, they are not subject to personal income tax.

Organizations are exempt from charging insurance premiums for benefits paid. The exception is cases when, in accordance with local regulations or at the initiative of the employer, the amount of benefits exceeds the legally established norms. In this case, personal income tax and insurance premiums are charged on the amount exceeding the specified norms.

In case of staff reduction, severance pay is provided to an employee of the organization.

It can also be paid upon termination of the contract by agreement of the parties. So who owns the severance pay for layoffs in 2016?

Payments due to an employee upon staff reduction

According to Article 178 of the Labor Code of Russia, in the event of staff reduction, the enterprise is obliged to pay dismissed employees severance pay, which is the average monthly earnings, as well as the average earnings for the duration of employment.

The employment of an employee, during which he retains his average earnings, begins on the day following the day of dismissal and ends on the day preceding the day of new employment, or the day of the end of the period of 2 months from the date of dismissal, which depends on which from these days came earlier. This is noted in the second part of Article 14 of the Russian Labor Code. For the first month of storing average earnings during employment, the employee receives severance pay on the day of dismissal. Therefore, payment for the 2nd month of the employment period is determined taking into account severance pay. This is noted in the first part of Article 178 of the Russian Labor Code.

In some, or rather exceptional, cases, the employee retains his average monthly earnings for 3 months from the date of dismissal. In this case, there is a need to obtain a decision from the employment service. But provided that the employee contacts this organization within two weeks after release, and was also not employed. This is noted in the second part of Article 178 of the Labor Code of Russia.

2016: calculation of severance pay in case of layoff

According to Article 139 of the Labor Code of Russia, in order to determine the average salary, there are uniform rules that are enshrined in the Regulations on the specifics of the procedure for calculating the average salary. The above provision was approved by Decree of the Russian Government No. 922 dated December 24, 2007. In the ninth paragraph of this document it is noted that the average daily earnings must be calculated on the basis of the amount of wages that were actually accrued for the days worked in the billing period, and the number of days actually worked in a given period of time. Based on this, we can say that the average daily earnings in the case of calculating severance pay must be multiplied by the number of working days.

This means that severance pay in the event of a layoff in 2016 is calculated using the following formula:

The severance pay for layoffs in 2016 is equal to the fact that the number of working hours in the first month after release (from the day following the day of dismissal) must be multiplied by the average hourly (daily) earnings.

We also emphasize that the number of working days that need to be paid is usually determined according to the work schedule of the dismissed employee of the enterprise.

We offer an example

The company is reducing its staff, or rather, its number. As a result, one employee was fired on February 3 of this year. The employee's work schedule is a forty-hour work week. Legal holidays: Sunday and Monday. In this case, it is necessary to determine the number of days for which this worker needs to be paid.

Severance pay to the employee must be paid on the day of dismissal. In this case - the third of February this year. The calculation period will be from February 1, 2015 to January 31, 2016.

Let’s imagine that an employee’s earnings for a given period are 120,000 rubles, and he worked 240 days. Therefore, the average daily salary will be:

120,000 rubles: 240 days = 500 rubles per day.

In the first month after the employee is laid off (February 4 to March 3, 2016), based on the employee's work schedule (18 working days), the severance pay will be:

18 days × 500 rubles per day = 9000 rubles.

If an employee of an organization has been established with a summarized accounting of working hours, then severance pay must be paid for the number of working hours that the employee was unable to work due to dismissal. The number of hours is calculated based on the weekly working hours accepted for this category of employees. Typically this time is forty hours.

Severance pay is the average monthly salary and is the minimum limit. In this situation, the average monthly earnings of an employee who, at the estimated time, fully worked the standard working hours, simply cannot be less than one minimum wage. After all, this minimum is approved for wages. This is noted in Article 133 of the Labor Code of the Russian Federation.

2016: impact of severance pay in case of reduction on contributions and taxes

During employment, average monthly earnings and severance pay are not subject to personal income tax and insurance contributions if they do not exceed three times the average monthly earnings. (For workers working in the Far North and equivalent areas, the non-taxable limit is six times the average monthly earnings).

If payments exceed the standard, then personal income tax must be withheld from it and insurance premiums must be calculated in accordance with general principles. This is noted in the third paragraph of Article 217 of the Tax Code of Russia, the first paragraph, subparagraph “e” of the second paragraph of the first part of the ninth article of the law under number 212-FZ of July 24, 2009, the first and second subparagraphs of the first paragraph 20.2 of Article of the Law under number 125- Federal Law of July 24, 1998.

All expenses for paying employees severance pay and average earnings during employment must be included in labor costs. At the same time, it is possible to take into account both benefits that were paid in accordance with labor legislation and additional compensation that were provided for in a collective or labor agreement. This is clearly stated in the first paragraph and ninth paragraph of Article 255 of the Russian Tax Code.

Zhigachev Alexander Viktorovich, Candidate of Legal Sciences, tax lawyer, Saratov

The latest financial and economic crisis that has gripped our country, among other negative consequences, has quite expectedly caused a new wave of layoffs of workers. Fundamental feature of such “crisis” layoffs lies in the fact that employers part with their employees en masse not because of their low professional or personal qualities and not on the employees’ own initiative, but due to a drop in the financial and economic indicators of the employer’s business, a narrowing of its scope, or “precautionary” purposes – as advance preparation for the negative impact of the crisis.

Often, wanting to show social concern for their dismissed employees and somewhat “mitigate” the consequences of dismissal, employers pay the dismissed employees additional severance pay that is not directly provided for by law. In practice, they are called differently - actually as severance pay, additional bonuses due to dismissal, material aid in connection with dismissal, etc. The legal essence does not change from this - these are additional payments associated with the dismissal of employees, but we still recommend calling them severance pay, since this is the concept used in the Labor Code of the Russian Federation (LC RF).

The additional severance pay under consideration can, in principle, be paid for various reasons for termination of an employment contract (part 4 of article 178 of the Labor Code of the Russian Federation on general rule this allows; The exception is cases provided for in Art. 181.1, 349.3 of the Labor Code of the Russian Federation), including upon termination of an employment contract by agreement of the parties (clause 1, part 1, article 77, article 78 of the Labor Code of the Russian Federation).

In the latter case, the additional severance pay itself may be provided either directly in the employment contract with the employee (or in additional agreement to it), and in the agreement on termination of the employment contract, as well as in the collective agreement. In our opinion, additional severance pay may also be provided for by a local regulatory act in force at the employer (for example, regulations on bonuses, regulations on wages, etc.), which is referred to in the employment contract or in the collective agreement - this is not contradicts Part 4 of Art. 178 Labor Code of the Russian Federation.

At the same time, regardless of the specific option and basis for payment of additional severance pay, main question from an accountant - how to correctly calculate taxes and contributions to off-budget funds?

Let us analyze the identified issue, focusing on current law enforcement practice. At the same time, we once again emphasize that we are considering additional severance pay paid upon dismissal by agreement of the parties (clause 1, part 1, article 77, article 78 of the Labor Code of the Russian Federation), i.e. severance pay not directly provided for by mandatory norms of legislation.

Personal income tax

In the overwhelming majority of current written clarifications of the Ministry of Finance of Russia and the Federal Tax Service of Russia, as well as in a significant number court decisions on this question a positive answer is given: severance pay paid upon dismissal of an employee on the basis of an agreement to terminate the employment contract (clause 1, part 1, article 77, article 78 of the Labor Code of the Russian Federation) are exempt from personal income tax on the basis of clause 3 of art. 217 of the Tax Code of the Russian Federation in an amount not exceeding in general three times the size of the SMZ (six times the size of the SMZ for workers dismissed from organizations located in the regions of the Far North and equivalent areas). Amounts exceeding three times the amount (six times the amount) of SMZ are subject to personal income tax in general procedure(Letters of the Ministry of Finance of Russia dated September 11, 2015 No. 03-04-06/52516, dated September 3, 2015 No. 03-04-06/50686, dated May 20, 2015 No. 03-04-06/28905, dated July 2, 2015 No. 03-04-05/38340, dated April 7, 2015 No. 03-04-05/19466, dated May 20, 2015 No. 03-04-06/29022, dated May 15, 2015 No. 03-04-06/28022, dated April 28, 2015 No. 03-04-05/24391, dated April 23, 2015 No. 03-04-06/23437, dated April 8, 2015 No. 03-04- 06/19679, dated March 3, 2015 No. 03-04-06/11084, etc.; Letters of the Federal Tax Service of Russia dated April 23, 2015 No. BS-4-11/7003@, dated October 3, 2012 No. ED- 4-3/16605@, dated October 2, 2012 No. ED-4-3/16533@, dated September 13, 2012 No. AS-4-3/15293@, etc.; Supreme Court Chuvash Republic dated April 27, 2015 in case No. 33-1745/2015, Appeal ruling of the Moscow City Court dated April 16, 2015 in case No. 33-12679, etc.).

At the same time, there is quite a lot of judicial practice that takes, in fact, the opposite approach: severance pay paid upon dismissal of an employee on the basis of an agreement to terminate an employment contract cannot be considered compensation payments established by law; the employer's right to independently determine additional cases payment of severance pay does not mean that this payment is established by law and falls under the list of payments not subject to personal income tax in accordance with clause 3 of Art. 217 of the Tax Code of the Russian Federation (Appeal ruling of the St. Petersburg City Court dated March 31, 2015 No. 33-4436/2015 in case No. 2-5589/2014; Appeal ruling of the Khabarovsk Regional Court dated February 21, 2015 in case No. 33-167/ 2015; Appeal ruling of the Krasnoyarsk Regional Court dated August 6, 2014 in case No. 33-7507/2014; Appeal ruling of the Moscow Regional Court dated July 23, 2014 in case No. 33-16087/2014, dated February 24, 2014 in case No. 33-4135/2014; Appeal rulings of the Sverdlovsk Regional Court of April 22, 2014 in case No. 33-3874/2014, of October 10, 2013 in case No. 33-12404/2013, etc.).

The first approach, in our opinion, should currently be considered a priority (since it is supported, in addition to judicial practice, by numerous “dominant” explanations of the Ministry of Finance of Russia and the Federal Tax Service of Russia), but it is incorrect to consider it as absolutely indisputable and risk-free (given the presence of sufficient numerous contrary judicial practice).

Conclusion: we can adhere to the position according to which severance pay paid upon dismissal of an employee on the basis of an agreement to terminate the employment contract (clause 1, part 1, article 77, article 78 of the Labor Code of the Russian Federation) in an amount not exceeding in general three times the amount of the SMZ (six times the size of the SMZ for workers dismissed from organizations located in the Far North and equivalent areas) are exempt from personal income tax. But it should be taken into account that such a position is associated with certain tax risks, the degree of which, in our opinion, will largely depend on the taxpayer’s readiness for active and professional pre-trial and judicial defense.

In terms of exceeding three times the size of the SMZ (six times the size of the SMZ for workers dismissed from organizations located in the Far North and equivalent areas), the analyzed severance pay is subject to personal income tax in the general manner.

Insurance premiums

From January 1, 2015, a benefit similar in content to the tax benefit discussed above in paragraph 3 of Art. 217 of the Tax Code of the Russian Federation: insurance premiums established by the legislation of the Russian Federation, legislative acts of constituent entities of the Russian Federation, decisions representative bodies local government compensation payments (within the limits established in accordance with the legislation of the Russian Federation), associated, among other things, with the dismissal of employees, with the exception of the amount of payments in the form of severance pay in the part exceeding in general three times the amount of the monthly wage or six times the amount of the monthly wage for dismissed employees from organizations located in the regions of the Far North and equivalent areas (paragraph 3, paragraph “e”, paragraph 2, part 1, article 9 of Federal Law No. 212-FZ “On insurance contributions to the Pension Fund of the Russian Federation, Social Insurance Fund of the Russian Federation, Federal Compulsory Medical Insurance Fund” (hereinafter referred to as “Law No. 212-FZ”) and paragraph 8, paragraph 1, article 20.2 of Federal Law No. 125-FZ “On compulsory social insurance against accidents at work and occupational diseases" (hereinafter referred to as "Law No. 125-FZ")).

Please note: in the specified norms of Law No. 212-FZ and Law No. 125-FZ, as well as in paragraph 3 of Art. 217 of the Tax Code of the Russian Federation, we are talking about compensation payments established by the legislation of the Russian Federation, legislative acts of the constituent entities of the Russian Federation, decisions of representative bodies of local government (within the limits established in accordance with the legislation of the Russian Federation).

Law enforcement practice in relation to the norms of paragraph. 3 pp. “d” clause 2, part 1, art. 9 of Law No. 212-FZ and para. 8 pp. 2 p. 1 art. 20.2 of Law No. 125-FZ has not yet taken shape. However, one can already find separate clarifications indicating that severance pay paid upon dismissal of an employee on the basis of an agreement to terminate an employment contract, in an amount not exceeding in general three times the amount of the minimum wage (six times the amount of the minimum wage for employees dismissed from organizations, located in the regions of the Far North and equivalent areas) are exempt from insurance premiums (clause 1 of the Appendix to the Letter of the Federal Insurance Service of the Russian Federation dated April 14, 2015 No. 02-09-11/06-5250; Letter of the Ministry of Labor of Russia dated April 29, 2015 No. 17-4/B-226, dated August 5, 2015, No. 17-4/B-404, dated July 21, 2016, No. 17-4/B-283).

But, given the almost complete identity of the structure of these norms of Law No. 212-FZ, Law No. 125-FZ and the above-mentioned tax benefit in paragraph 3 of Art. 217 of the Tax Code of the Russian Federation, we believe that we should expect the emergence of a second approach in the near future (at least in judicial practice): severance benefits paid upon dismissal of an employee on the basis of an agreement to terminate the employment contract (clause 1, part 1, article 77, article 78 of the Labor Code of the Russian Federation) do not fall under the list of payments exempt from insurance contributions in accordance with paragraph. 3 pp. “d” clause 2, part 1, art. 9 of Law No. 212-FZ and para. 8 pp. 2 p. 1 art. 20.2 of Law No. 125-FZ, since these benefits are not compensation payments directly established by law, but are provided as additional payments on the basis of the free will of the parties to the employment contract.

Conclusion: we can adhere to the position according to which severance pay paid upon dismissal of an employee on the basis of an agreement to terminate the employment contract (clause 1, part 1, article 77, article 78 of the Labor Code of the Russian Federation) in an amount not exceeding in general three times the amount of the SMZ (six times the size of the SMZ for workers dismissed from organizations located in the regions of the Far North and equivalent areas) are exempt from insurance contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, and the Federal Compulsory Medical Insurance Fund. But it should be taken into account that such a position is associated with certain risks, the degree of which, in our opinion, will largely depend on the readiness of the fee payer for active and professional pre-trial and judicial defense.

In terms of exceeding three times the size of the SMZ (six times the size of the SMZ for workers dismissed from organizations located in the Far North and equivalent areas), the analyzed severance pay is subject to insurance contributions in the general manner.

Can it be included in expenses?

Since January 1, 2015, the answer to this question is quite clear: according to the wording of clause 9, part 2, art. 255 of the Tax Code of the Russian Federation severance payments made by the employer upon termination of an employment contract, provided for by employment contracts and (or) separate agreements of the parties to the employment contract, including agreements on termination of the employment contract, as well as collective agreements, agreements and local regulations containing labor law norms , are directly attributed to labor costs.

Thus, even if severance pay is provided only by an agreement to terminate the employment contract (i.e. directly upon dismissal of an employee), such severance pay can be taken into account in expenses (this is also confirmed, for example, by Letters of the Ministry of Finance of Russia dated May 20, 2015 No. 03-03-06/1/28978, dated March 19, 2015 No. 03-03-06/1/15130, dated March 16, 2015 No. 03-03-06/1/13749, No. 03-03-06 /1/13741, No. 03-03-06/1/13770, dated February 27, 2015, No. 03-03-06/1/10029, dated January 30, 2015, No. 03-03-06/1/3654 and etc.).

This rule applies both when calculating corporate income tax and application of the simplified tax system with the object “income minus expenses”, as well as when calculated by individual employers entrepreneurs personal income tax(clause 9, part 2, article 255 of the Tax Code of the Russian Federation in conjunction with the norms of clause 6, clause 1, article 346.16 of the Tax Code of the Russian Federation and clause 1, article 221 of the Tax Code of the Russian Federation).

Let us remember that this issue was previously considered controversial. In particular, with regard to legal relations that were in force before January 1, 2015, there was a widespread position according to which severance pay paid upon dismissal of an employee only on the basis of an agreement to terminate the employment contract, if such severance pay was not previously provided for by either the employment contract, neither by a collective agreement, can not be taken into account in expenses (see, for example, Resolution Arbitration Court Volga-Vyatka District dated October 27, 2014 in case No. A29-9206/2013; Resolutions of the Arbitration Court of the West Siberian District dated July 10, 2015 No. F04-20773/2015 in case No. A27-20085/2014, dated May 15, 2015 No. F04-17222/2015 in case No. A27-8298/2014; Resolutions of the Arbitration Court of the Moscow District dated September 29, 2015 No. F05-12629/2015 in case No. A40-158301/14, dated March 6, 2015 No. F05-1364/2015 in case No. A40-40945/14; Letter of the Federal Tax Service of Russia dated July 28, 2014 No. GD-4-3/14565@; Letters of the Ministry of Finance of Russia dated July 29, 2013 No. 03-03-06/1/30009, dated March 31, 2011 No. 03-03-06/1/188, dated July 9, 2010 No. 03-03-06/ 4/66, etc.).

Conclusion: severance pay, paid from January 1, 2015 upon dismissal of an employee on the basis of an agreement to terminate the employment contract (clause 1, part 1, article 77, article 78 of the Labor Code of the Russian Federation), can be taken into account in expenses as when calculating tax on profit of organizations, and when calculating the simplified tax system or personal income tax - within the framework of the relevant applicable taxation systems (regardless of whether such severance payments are provided only in the agreement on termination of the employment contract or whether they were previously also provided for in the employment contract and (or) in the collective agreement and (or) in local regulations employer).

Tax risks with this approach there are practically none.

We hope that the conclusions and recommendations formulated in this article will be useful to employers when deciding controversial issues accounting for payments made in favor of employees upon termination of an employment contract by agreement of the parties.

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Question to the auditor

An agreement to terminate the employment contract has been concluded with the employee. According to the collective agreement, in all cases of dismissal of employees (except for dismissal at the initiative of the employer), they are additionally (in addition to the cases specified in the Labor Code of the Russian Federation) paid severance pay in the amount of two salaries. Is it necessary to tax this personal income tax payment and contributions? And is it possible to take it into account in income tax expenses and under the simplified tax system?

In certain cases, the employer is obliged to pay the dismissed employee severance pay in accordance with the norms of the Labor Code of the Russian Federation. In particular, such an obligation arises if an employee is dismissed for the following reason (Part 1 of Article 178 of the Labor Code of the Russian Federation):

• liquidation of the organization;
• reduction in the number or staff of employees.

Upon dismissal by agreement of the parties, the employee is not entitled to severance pay under the Labor Code of the Russian Federation. However, the employer has the right to provide in the labor and (or) collective agreement for other (not listed in the Labor Code of the Russian Federation) cases of payment of severance pay, including in an increased amount (Part 4 of Article 178 of the Labor Code of the Russian Federation).

Accordingly, the organization has the right, at its discretion, to make this payment, even if the basis for dismissal is an agreement of the parties (Article 78 of the Labor Code of the Russian Federation).

The procedure for taxation and assessment of contributions is as follows.

Income tax

Accruals for dismissed employees are included in labor costs. At the same time, such accruals include, in particular, severance pay, which are provided for in agreements on termination of an employment contract (clause 9, part 2, article 255 of the Tax Code of the Russian Federation).

Thus, severance pay in the presented situation reduces taxable profit (paragraph 2 of the letter

When applying the simplified tax system with the object “income minus expenses,” labor costs are taken into account in the same manner as when calculating income tax (clause 5, clause 1, clause 2, article 346.16 of the Tax Code of the Russian Federation). Consequently, when the payment of severance pay in the event of dismissal by agreement of the parties is enshrined in the local act of the employer (for example, in a collective agreement), it is included in the expenses under the simplified tax system.

Personal income tax and insurance premiums

Compensations provided for by the legislation of the Russian Federation related to the dismissal of employees (except for compensation for unused vacation), are not subject to personal income tax and contributions (clause 1 of Article 217 of the Tax Code of the Russian Federation, dated July 24, 2009 No. 212-FZ).

The Russian Ministry of Finance explains that personal income tax is not withheld from these payments, regardless of the basis for dismissal (clause 1 of the letter of the Russian Ministry of Finance dated February 12, 2016 No. 03-04-06/7530).

The Russian Ministry of Labor takes a similar position regarding insurance premiums (letters dated October 27, 2015 No. 17-4/B-526, dated September 24, 2014 No. 17-3/B-449).

However, it must be taken into account that not any amount of severance pay is not subject to personal income tax and contributions, but that part that is less than or equal to three times the average monthly salary (six times for workers in the Far North and equivalent areas). Accordingly, if the benefit is assigned in a larger amount, then the excess amount is included in the base for personal income tax and contributions in the general manner (clause 1 of article 217 of the Tax Code of the Russian Federation, subparagraph "d" clause 2 of part 1 of article 9 of the Federal Law of July 24 .2009 No. 212-FZ).