Personal income tax offset against other taxes. Correct reflection of income tax overpayment in the report. If the amount of upcoming personal income tax payments is greater than the amount to be returned to the employee

Cases of personal income tax overpayment are not uncommon. Some businesses are offsetting, and some are asking for the overpaid differences to be returned to them. How to correctly reflect the overpayment in the report?

Every employer who has in his state employees, is obliged to calculate income tax on all "labor" income individuals... In this case, the employer acts as tax agent.

His responsibilities include not only accrual and retention, but the submission of reports on these indicators in accounting by the time the calculation is formed.

It is necessary to report to the Federal Tax Service every quarter, showing all the values ​​of personal income tax accrued on the income of a particular employee, and actually withheld from him. All indicators in the report on Form 6 personal income tax are shown on an accrual basis.

As a rule, all reporting is generated in the program. But for the correct reflection of the final information, the initial data must be correctly entered. In addition, all "flags" and "ticks" that affect the method of calculation and retention must also be placed correctly.

It may happen that the program or the accountant himself made an accounting error, and an extra amount of income tax was withheld from a particular employee.

In the 6 personal income tax report there is no line in which an excessively withheld indicator can be reflected for personal income tax. Therefore, the question arises: how to reflect the positive difference in the report?

First of all, you need to find and fix the error. Then:

• You need to make a cancellation in the appropriate section of accounting;
• now it is necessary to make the appropriate adjustments in the tax register.

On a note! It is necessary to notify the employee that a plus difference has been withheld from him. The notice must be in writing. If the employee expresses a desire to return this surplus to himself, then he will also have to write a corresponding statement.

Refunds can only be made to the worker's bank account. Otherwise, the accountant can recalculate personal income tax when returning it against future deductions.

Now you need to correctly reflect this surplus in the documents. In section 2:

• It is necessary to indicate all the reflected income from which the overpayment was made;
• in line 140, show the value of personal income tax, which should be deducted from this payment, including all overpayment.

Section 1 should reflect the following:

• In line 040, the tax value that was calculated from all "labor" income of this employee in a specific reporting period;
• on line 070 - the amount of income tax actually withheld. Since we are talking about a positive difference, this indicator will be higher.

If, according to the employee's written application, the overpaid tax difference was returned to him, then this value must be reflected on line 090.

For clarity, how to correctly reflect the return of overly withheld personal income tax, it is necessary to give an example: Accountant P., not taking into account the statement from employee V. about her child, did not make a tax deduction, and therefore withheld the excess of the mandatory fee. The situation happened in May of this year.

For the month of May, all employees received a salary in the amount of 194,580 rubles, the value of personal income tax withheld - 25,295.4 rubles. The actual payment of the balance of wages took place on 30.05 of the current year.

Then in June the accountant saw P.'s statement and recalculated the value of the mandatory fee. He got 24,875.4 rubles from the income received in total. Officer V. wrote a statement and the surplus in the amount of 419 rubles was returned to her.

In total, the company employs 4 people, and for the entire period, only 124,560 rubles of the obligatory tax were charged, and the withheld personal income tax, taking into account the fact that there was a surplus, was 124,979 rubles.

The report is filled in as follows:

On a note! If the accountant had not returned the surplus to P., he would have put a dash in line 090.

Additional accrual takes place according to a different scheme. Surcharges for past period reflected in the reporting for the period in which they occurred.

Overpayment of personal income tax from own funds

If such a situation has developed, and the overpayment occurred at the expense of the employer, then this indicator cannot be set off against future deductions.

That is, the collection was fully withheld correctly, and the difference occurred precisely at the expense of the company's finances, which in fact is not a mistake. And this is prohibited by the Tax Code of the Russian Federation! This is stated in paragraph 9 of Art. 226 of the Tax Code of the Russian Federation.

Therefore, the tax agent himself, that is, the employer, must write an application to the tax authorities at the place of his registration for the return of the surplus. All overpayment can be returned to the tax agent after reconciliation of calculations.

In documents in the form of 6 personal income tax, the entire difference in the overpaid fee does not need to be reflected due to the fact that everything was charged and withheld correctly, the error occurred precisely when filling out the payment document.

Conclusion

It is important to correctly reflect the overpayment of personal income tax in the 6 personal income tax report. Non-compliance can lead to unpleasant consequences for the tax agent, that is, for the employer.

If personal income tax from an individual's income was deducted in a larger amount than necessary (for example, due to a technical error or due to an erroneous failure to provide a deduction), then an overpayment for personal income tax arises, which must be returned to such a person.

How to return personal income tax

The tax agent must inform the employee (another individual) that personal income tax was unnecessarily withheld within 10 working days from the date of discovery of this fact (paragraph 2, clause 1 of article 231 of the Tax Code of the Russian Federation). After that, to an employee who wants to return the excess withheld from his personal income tax, you need to write a corresponding application addressed to the tax agent. The employee needs to do this before the expiration of 3 years from the date of payment of the excessively withheld tax to the budget (Letter of the Ministry of Finance dated December 27, 2012 No. 03-04-06 / 4-370).

The agent has 3 months to return the tax from the date of receipt of the application from the employee (Letter of the Federal Tax Service dated July 18, 2016 No. BS-4-11 / [email protected]). Return unnecessarily withheld Personal income tax the agent can from the funds transferred as personal income tax from the income of both this employee and others (paragraph 3, clause 1 of article 231 of the Tax Code of the Russian Federation). And the further course of events depends on whether there will be enough money transferred to the budget in the form of personal income tax during these three months to return to the employee.

For example, the employer unnecessarily withheld 5,000 rubles from the employee's salary. Personal income tax. The bug was discovered on November 30th. On December 4, the salaries of all employees were accrued and it turned out that the total amount of tax withheld from salaries, which the employer must transfer to the budget, is 25,000 rubles. As you can see, there are enough funds to return personal income tax. Accordingly, 5000 rubles. the employer returns to the employee, and transfers 20,000 rubles to the budget.

How to return personal income tax through the IFTS

If the tax agent understands that he does not have enough money to return the excessively withheld personal income tax, then within 10 working days from the date of receipt from the employee of an application for the return of the excessively withheld personal income tax, he sends an application for a refund to his IFTS (paragraph 6, clause 1 of Art. 231 of the Tax Code of the Russian Federation). In this case, the money is returned in the usual "return" procedure (Article 78 of the Tax Code of the Russian Federation).

Without waiting for the return of personal income tax from the budget, the tax agent can refund the overpayment on Personal income tax for an employee(to another individual) at the expense own funds(paragraph 9, clause 1 of article 231 of the Tax Code of the Russian Federation). And when the money comes from the IFTS, leave it at your disposal.

Documents for the return of personal income tax

If the agent has enough money for the return of personal income tax, then the only document required to carry out such a return is the employee's statement.

If the tax agent applies to the IFTS for a refund, then in addition to the corresponding application, an extract from the IFTS must be submitted to the IFTS. tax register for personal income tax, as well as documents confirming excessive withholding and transfer of tax (for example, payment orders). It is also necessary to submit a 2-NDFL certificate in relation to the person for whom the tax is refunded. Such a certificate is drawn up for the period when the tax was unnecessarily withheld. When applying for refund of personal income tax, unnecessarily withheld in previous years, you need to submit two certificates 2-NDFL - primary and corrective.

Refund of excessively withheld personal income tax by the taxpayer himself

If there is no tax agent (for example, it has been liquidated), then the payer himself applies to the IFRS for the return of the overpayment for personal income tax (paragraph 10, clause 1 of article 231 of the Tax Code of the Russian Federation). To do this, together with a declaration in the form of 3-NDFL for past year he needs to apply for a tax refund.

You can understand that the tax was unnecessarily withheld from the 2-NDFL certificate available on hand. In 2-NDFL, excessively withheld tax is reflected in the line "Amount of tax unduly withheld by the tax agent".

Please note that if personal income tax turned out to be unnecessarily withheld due to the fact that at the end of the year the employee acquired the status of a tax resident of the Russian Federation, the individual withheld tax at the rate of 30% is returned by the individual independently by contacting the Federal Tax Service Inspectorate (

The offset of the overpayment of personal income tax against future payments was first allowed to be carried out in 2017. Now you can offset both other taxes and personal income tax debts.

The tax authorities allowed the overpayment of personal income tax to be offset against debt or future payments for other taxes. This long-awaited conclusion was reached by the Federal Tax Service of Russia (letter dated February 6, 2017 No. GD-4-8 / 2085). In this article, we will show you how to use new opportunities for the benefit of your company and not fall into a dangerous trap.

Overpayment of personal income tax in 2017: options

Consider what opportunities are now open for companies. We will separately tell you about each of the options for offsetting the overpayment of personal income tax:

How does the overpayment of personal income tax arise?

An excess amount arises when the company mistakenly transfers the payment according to the personal income tax details. Tax authorities do not consider this amount a tax. But now they are allowed to set off other taxes. And it doesn't matter why the company got it:

• transferred more tax to the budget than withheld;
• by mistake, the employee's salary and tax were overestimated, and then the personal income tax was recalculated downward.

Offset of overpayment of personal income tax against future payments of other taxes

The overpayment of personal income tax can now be offset against future payments for other taxes. But only if they are federal, for example:

• income tax.

This is directly stated in the letter of the Federal Tax Service of Russia (dated February 6, 2017 No. GD-4-8 / 2085). To set off, you must fill out an application in the form from Appendix No. 9 to the order of the Federal Tax Service of Russia dated March 3, 2015 No. ММВ-7-8 / 90. See the sample below, but you can download it.

To confirm the legality of the offset, attach a copy of the payment order and an extract from the personal income tax register to the application.

Offset of overpayment of personal income tax against future payments of personal income tax

Do not waste time offsetting the amounts overpaid against personal income tax against future payments for this tax. First, the payment of personal income tax at the expense of the company is unacceptable. And secondly, the tax authorities kept silent about this in their explanations.

If you transferred the unretained amount to the personal income tax account, then do not deduct the overpayment from the next payment for this tax. Otherwise, the tax authorities will charge interest on the difference and may require a fine. It will amount to 20 percent of this difference (Article 123 of the Tax Code of the Russian Federation). List the withheld personal income tax in full, and erroneous payment can be returned or offset against debts or future payments for other taxes (letter of the Federal Tax Service of Russia dated February 6, 2017 No. GD-4-8 / 2085). You can download the application form. In it, attach copies of the erroneous payment and an extract from the personal income tax register for 2017.

Copies of the payment order and extracts from the personal income tax register must be attached to the application. If you are sending an application through a special operator, then attach these papers to the application in the form of scans. The documents will confirm that the company has an overpayment.

How to return the overpayment of personal income tax in 2017

If none of the options suits you, the erroneous payment can be returned. But only if you do not have debts for other federal taxes - VAT, income tax (letter dated February 6, 2017 No. GD-4-8 / 2085).

To return the overpayment, submit an application for a return in any form to the inspection. Do not complete the approved overpayment refund form. Tax authorities believe that payment from the company's own funds is not personal income tax. See and download a sample application below.

How to return (offset) an overpayment of personal income tax to an organization - a tax agent? What is the procedure for refunding tax that is unnecessarily withheld from the income of an individual and transferred to the budget? In what order is the overpayment for personal income tax returned (credited) that arose for other reasons?

The employees of the supervisory authority issued a Letter dated 06.02.2017 No. GD-4-8 / [email protected], in which they gave clarifications on the issue of offset (return) of overpaid amounts of personal income tax. In this letter, officials drew attention to the fact that the procedure for the return (offset) of overpaid personal income tax depends on whether these amounts are recognized by the tax itself. This article will look at these explanations in more detail.

First, we recall that according to paragraphs. 1 p. 3 art. 24 of the Tax Code of the Russian Federation, tax agents are required to correctly and timely calculate, withhold from Money paid to taxpayers and transfer to budget system RF to the corresponding accounts of the Federal Treasury taxes.

In accordance with paragraph 1 of Art. 226 of the Tax Code of the Russian Federation in order to apply Ch. 23 "Personal Income Tax" of the Tax Code of the Russian Federation, tax agents are Russian organizations from which or as a result of relations with which the taxpayer received the income specified in clause 2 of this article.
In addition, they are obliged to calculate, withhold from the taxpayer and pay the amount of tax calculated in accordance with Art. 224 of the Tax Code of the Russian Federation, taking into account the specifics provided for by Art. 226 of the Tax Code of the Russian Federation.

Also, for the purposes of applying this chapter, tax agents are recognized as Russian organizations that transfer amounts monetary allowance, pay, salary, other remuneration (other payments) to military personnel and civilian personnel (federal state civil servants and employees) of the Armed Forces of the Russian Federation (clause 7.1 of article 226 of the Tax Code of the Russian Federation).

Withheld personal income tax must be transferred to the budget within the timeframes established by clauses 1, 2 of Art. 223, paragraph 6 of Art. 226 of the Tax Code of the Russian Federation (letters of the Ministry of Finance of the Russian Federation dated 01.02.2017 No. 03 04 06/5209, dated 25.07.2016 No. 03 04 06/43463, 03 04 06/43479, Federal Tax Service of the Russian Federation dated 26.05.2014 No. BS-4-11 / [email protected]).

Note, paragraph 9 of Art. 226 of the Tax Code of the Russian Federation established that the payment of tax at the expense of tax agents is not allowed. Consequently, the transfer to the budget of an amount exceeding the amount of personal income tax actually withheld from the income of individuals is not a payment of tax.

Thus, personal income tax transferred to the budget ahead of time payment of income, tax officials do not recognize as tax. In this case, the obligation of the tax agent to transfer personal income tax is not fulfilled. Accordingly, the organization - the tax agent is obliged to re-pay the tax in full amount... Such clarifications are presented in the letters of the Ministry of Finance of the Russian Federation dated September 16, 2014 No. 03 04 06/46268, the Federal Tax Service of the Russian Federation dated February 06, 2017 No. GD-4-8 / [email protected], dated 09.29.2014 No. BS-4-11 / [email protected] In addition, personal income tax, paid ahead of time, cannot be offset against future payments, it can only be returned from the budget (Letter of the Federal Tax Service of the Russian Federation dated 09.29.2014 No. BS-4-11 / [email protected]).

How to return (offset) an overpayment of personal income tax to an organization - a tax agent?

According to paragraph 7 of Art. 78 of the Tax Code of the Russian Federation, an application for offset or refund of overpaid personal income tax can be submitted within three years from the date of payment of the specified amount, unless otherwise provided by the legislation of the Russian Federation on taxes and fees. Note that the order of actions of the organization - the tax agent depends on the reason for the overpayment:

• Personal income tax was unnecessarily withheld from the income of an individual and transferred to the budget;
• overpayment for personal income tax arose for other reasons, for example, due to an error in the payment order or tax transfer earlier than the date payment of personal income tax to the budget (there it is not recognized as a tax).

Let us consider in detail the procedure for returning personal income tax in each of the above cases.

The procedure for the return of personal income tax, which is unnecessarily withheld from the income of an individual and transferred to the budget.

A situation when an organization - a tax agent unduly withheld personal income tax from an individual's income and transferred it to the budget, may arise, for example, when an employee is provided with property or social deduction not since the beginning of the year. In this case, according to paragraph 1 of Art. 231 of the Tax Code of the Russian Federation, the amount of tax excessively withheld by the tax agent from the taxpayer's income is subject to return by the tax agent on the basis of a written application from the taxpayer. In this case, the organization is obliged to inform the taxpayer about each fact of excessive tax withholding and the amount of excessively withheld tax that has become known to him within 10 days from the date of discovery of such a fact.

Note:

Refund of the tax amount to the taxpayer in the absence of a tax agent (for example, in the event of liquidation of an organization) or in connection with recalculation based on the results tax period in accordance with the status of a tax resident of the Russian Federation acquired by him, it is made by the tax authority in which he was registered at the place of residence (place of stay), and not by an organization - a tax agent (clauses 1 and 1.1 of article 231 of the Tax Code of the Russian Federation).

Refunds to a taxpayer employee of an excessively withheld tax amount are made by an organization - a tax agent at the expense of the amounts of this tax to be transferred to the budgetary system of the Russian Federation on account of forthcoming payments both for the specified taxpayer and for other taxpayers from whose income the tax agent withholds tax, within three months from the date of receipt by the tax agent of the relevant application of the taxpayer. Such a refund can be made only by transferring funds to the taxpayer's bank account specified in his application (Article 231 of the Tax Code of the Russian Federation, letters of the Federal Tax Service of the Russian Federation dated July 18, 2016 No. BS-4-11 / [email protected], The Ministry of Finance of the Russian Federation dated May 16, 2011 No. 03 04 06 / 6-112 (p. 2)).

Here are examples of the return of excessively withheld and transferred to the budget of personal income tax.

If the amount of upcoming personal income tax payments is greater than the amount to be returned to the employee.

Example 1.

On February 20, 2017, the employee filed an application for the return of the excessively withheld personal income tax amount in the amount of 23,000 rubles. The amount of tax to be transferred to the budget from all income paid by the organization to individuals was:

- as of 10.04.2017 - 18,000 rubles.

How, in this case, the personal income tax is offset?

As already mentioned, you first need to transfer the amount of excessively withheld personal income tax to the employee's account specified in the refund application. Then, by the amount of the refunded tax, it is necessary to reduce the amount of current payments for personal income tax, calculated from payments to all individuals who received income from the organization, until the returned amount is fully credited.

The entire amount of excess tax withheld from the employee's income in the amount of 23,000 rubles. transferred to his card on the day of payment of the salary - 03/10/2017. Part of the refunded tax in the amount of 18,000 rubles. the organization will set off the reduction of personal income tax to be transferred on 03/10/2017. Thus, the organization will not transfer personal income tax to the budget on March 10, 2017.

For the remainder of the personal income tax returned to the employee in the amount of 5,000 rubles. (24,000 - 18,000) the organization will reduce the personal income tax to be transferred on 10.04.2017. As a result, the organization will pay tax to the budget in the amount of 13,000 rubles. (18,000 - 5,000).

Example 2.

On February 20, 2017, the employee submitted an application for the return of the excessively withheld personal income tax amount in the amount of 63,000 rubles. The amount of tax to be transferred to the budget from all income paid by the organization to individuals is equal to:

- as of 03/10/2017 - 18,000 rubles;
- as of 10.04.2017 - 18,000 rubles;
- as of 05/10/2017 - 18,000 rubles.

How is personal income tax offset in this case?

From the conditions of the example, it follows that the amount of personal income tax to be returned to the employee is greater than the forthcoming payments for this tax, since the excessively withheld personal income tax must be returned within three months from the date the tax agent receives the relevant taxpayer application. In this case, for the return of excess personal income tax, the organization must contact its tax office... To do this, within 10 working days from the date of receipt from the employee of an application for the return of excess personal income tax, the organization must be submitted to the tax office (clause 1 of article 231 of the Tax Code of the Russian Federation, Letter of the Federal Tax Service of the Russian Federation of 09.20.2013 No. BS-4-11 / 17025):

1) an application for the return of the excessively withheld tax amount;
2) an extract from the tax register for personal income tax for the period when the tax was unnecessarily withheld;
3) a 2-NDFL certificate for this person for the period when the tax was unnecessarily withheld. If an organization applies for the return of personal income tax, excessively withheld in previous years, two certificates must be submitted: primary and corrected;
4) documents confirming the excessive transfer of tax (for example, payment order, extract).

Within a month from the date of submission of these documents, the supervisory authority must return the overpayment for personal income tax to the organization's current account (clause 6 of article 78 of the Tax Code of the Russian Federation).

If the tax agent did not transfer the excessively withheld personal income tax to the employee on time.

So, if the return of the excessively withheld tax amount is carried out by the tax agent in violation of the time period established by Art. 231 of the Tax Code of the Russian Federation (within three months from the date of receipt by the tax agent of the relevant taxpayer's application), the tax agent for the amount of excessively withheld tax that is not returned to the taxpayer within the prescribed period is obliged to accrue interest, which is also payable to the taxpayer, for each calendar day of violation of the deadline return.

For your information:

The interest rate is assumed to be equal to the refinancing rate of the Central Bank of the Russian Federation in effect on the days of violation of the repayment period.

If the amount of personal income tax that needs to be transferred to the budget is less than the amount that needs to be returned to the employee.

If the amount of tax to be transferred by the tax agent to the budgetary system of the Russian Federation is not enough to refund the taxpayer excessively withheld and transferred to the budgetary system of the Russian Federation the amount of tax within the period established by Art. 231 of the Tax Code of the Russian Federation, the tax agent within 10 days from the date the taxpayer submits the relevant application to him tax authority at the place of its registration, an application for the return to the tax agent of the excessively withheld tax amount.

In addition to the application, the organization - the tax agent must submit to the tax authority an extract from the register tax accounting for the relevant tax period and documents confirming excessive withholding and transfer of the tax amount to the budgetary system of the Russian Federation.

Further, the return to the tax agent of the amount of tax transferred to the budgetary system of the Russian Federation is carried out by the tax authority in the manner prescribed by Art. 78 of the Tax Code of the Russian Federation (we will consider the return under this article in detail later).

Note:

Prior to the return from the budgetary system of the Russian Federation to the tax agent of the tax amount that was excessively withheld from the income of the taxpayer and transferred to the budgetary system of the Russian Federation, the tax agent has the right to make such a return at its own expense.

The procedure for refunding overpayment of personal income tax arising for other reasons.

According to paragraphs 1 and 2 of Art. 78 of the Tax Code of the Russian Federation offset the amounts overpaid federal taxes and fees, regional and local taxes is made according to the relevant types of taxes and fees, as well as on accrued penalties. Offset or refund of the amount of overpaid tax is carried out by the tax authority at the place of registration of the taxpayer.

Clause 5 of Art. 78 of the Tax Code of the Russian Federation stipulates that the offset of the amount of personal income tax paid in excess of the repayment of arrears on other taxes, arrears on fines and (or) fines payable or collected in cases provided for by the Tax Code of the Russian Federation, is made by the tax authorities independently.

By virtue of paragraph 14 of Art. 78 of the Tax Code of the Russian Federation, the rules established by this article apply to tax agents, payers of fees and responsible participant consolidated group taxpayers.

Employees of the tax department, as already mentioned, believe that the transfer to the budget of an amount in excess of the amount actually withheld from personal income tax is not a payment of tax. This amount is considered by them as money mistakenly transferred to the budget. In this regard, the controllers can return the tax to the tax agent in the manner prescribed by Art. 78 of the Tax Code of the Russian Federation, provided that such a tax agent should not have debts for other federal taxes. In this case, the tax agent has the right to apply to the tax authority with an application for the return to the current account of an amount that is not personal income tax and was mistakenly transferred to the budgetary system of the Russian Federation. Note that the fact of the erroneous transfer of amounts according to the requisites for the payment of personal income tax, as well as the fact of excessive withholding and transfer of tax, is confirmed on the basis of an extract from the tax accounting register for the relevant tax period and payment documents in accordance with para. 8 p. 1 art. 231 of the Tax Code of the Russian Federation.

The procedure for offsetting overpayment of personal income tax arising from other reasons.

With regard to offsetting the overpaid amount of personal income tax against future payments for this tax, the employees of the supervisory authority noted that in accordance with paragraph 9 of Art. 226 of the Tax Code of the Russian Federation, the payment of tax at the expense of tax agents is not allowed. Consequently, the transfer to the budget of an amount exceeding the amount of personal income tax actually withheld from the income of individuals is not a payment of tax.

Accordingly, as indicated by the employees of the tax inspectorate, the amount mistakenly transferred to the requisites for the payment of personal income tax can be offset against the repayment of tax arrears of the corresponding type, as well as against future payments for other taxes of the corresponding type. Other taxes mean federal taxes, with the exception of personal income tax.

Such clarifications are presented in the Letter of the Federal Tax Service of the Russian Federation dated 06.02.2017 No. GD-4-8 / [email protected]

From the editor:

With the full text of the Letter of the Federal Tax Service of the Russian Federation No. GD-4-8 / [email protected] you can find in the journal "Remuneration in a state (municipal) institution: acts and comments for an accountant" (No. 4, 2017).

Note that prior to this letter, the tax authorities indicated only the possibility of returning to the tax agent an amount that is not personal income tax and was mistakenly transferred to the budgetary system of the Russian Federation.

In the new letter, the supervisory authority already allows offsetting, in particular, against future payments of other taxes of the corresponding type. the amount against future payments for other taxes of the corresponding type. To do this, you must submit an application to the inspectorate.

For your information:

Offset (refund) of excessively or erroneously paid amounts of personal income tax for the period before 01.01.2016 is carried out in the manner described above. This is also stated in the Letter of the Federal Tax Service of the Russian Federation dated 06.02.2017 No. GD-4-8 / [email protected]

In conclusion, we denote the following:

1) for the return of the physical persons of personal income tax an organization - a tax agent is obliged to inform the employee in writing about the excessive withholding of tax. This must be done within 10 working days from the day the error was discovered. Next, you need to receive from the employee an application for the return of the excessively withheld amount of personal income tax, indicating the details of the bank account for transferring money. It is impossible to return personal income tax in cash. The employee must submit such an application before the expiration of a three-year period from the date of payment of the excessively withheld tax to the budget;

2) if the amount of personal income tax to be refunded to the employee is greater than the upcoming payments for this tax (excessively withheld personal income tax must be returned within three months from the date the tax agent receives the relevant taxpayer application), the organization must apply to the tax office with a corresponding statement and supporting documents (for example, with payment order, statement). After that, in accordance with paragraph 6 of Art. 78 of the Tax Code of the Russian Federation, within a month from the date of submission of such documents, the supervisory authority must return the overpayment for personal income tax to the organization's current account;

3) if the organization erroneously transferred an amount that is not tax withheld from the income of individuals according to the payment details of personal income tax, it can be offset against future payments for other taxes of the corresponding type or returned in accordance with the procedure established by Art. 78 of the Tax Code of the Russian Federation.

M.N. Volkova, journal expert

"Remuneration of labor in a state (municipal) institution", April, 2017

An overpayment of personal income tax may arise for various reasons: as a result of a counting error, a change in the taxpayer's tax status, provision, etc. The procedure for returning it to the taxpayer depends on what caused the surplus. Moreover, the tax agent does not always have to do this.

Immediate payers of personal income tax are known to be recognized individuals... However, in the general case obligation to calculate and pay of such a tax is performed for them tax agents, that is, organizations or entrepreneurs that are the source of the corresponding taxable income of the taxpayer (clause 1 of article 226 of the Tax Code). When paying income to an individual, they are obliged to calculate and withhold tax from it for transfer to the budget. It is quite understandable that in this situation, in the event of an overpayment of personal income tax, the tax agent cannot remain indifferent. Another thing is that the scale of its participation in the tax surplus, depending on the situation, may be different.

Overpayment occurrence

So, first of all, an overpayment of personal income tax may arise from a taxpayer directly due to the procedure for calculating this tax. For example, we will give the following situation.
According to paragraph 3 of Art. 210 Tax Code when determining the base for personal income tax in respect of income taxed at a rate of 13 percent, the taxpayer has the right to receive standard deductions. These are provided on a monthly basis, for each month of the tax period, regardless of whether the taxpayer has taxable income in a given month (clauses 1, 2, 4, clause 1 of article 218 of the Tax Code). In particular, the Ministry of Finance of Russia has repeatedly focused on this (letters of the department of July 21, 2011 N 03-04-06 / 8-175, of August 24, 2009 N 03-04-05-01 / 655). At the same time, the base for personal income tax is calculated on an accrual basis from the beginning of the year. Thus, if we assume that from the middle of the year to the end of the tax period, the taxpayer ceased to receive income taxable with personal income tax, while still retaining the right to a standard deduction, then the tax base each month will decrease, as will the amount of tax to be withheld. One does not have to go far to find an example of a similar situation. This is how events will develop if in the middle of the year the employee goes on maternity leave, since the maternity benefit is not subject to personal income tax (clause 1 of article 217 of the Tax Code).

Example. An employee of the LLC from January to August 2012 received income in the amount of 120,000 rubles. During this period, the employee was provided with monthly standard tax deductions for personal income tax:

- 1400 rubles. a month - for the second child;
- 3000 rubles. a month - for the third child.
The total amount of standard personal income tax deductions provided was 46,400 rubles. ((1400 rubles x 2 + 3000 rubles) x 8 months). Personal income tax was calculated, withheld and transferred in the amount of 9568 rubles. ((120,000 - 46,400) x 13%).
From September 1, 2012, the employee was granted maternity leave (140 days), and until the end of the year, income subject to taxation of personal income tax at a rate of 13%, she will not receive any more. However, the standard deductions for children are due for each month of the tax period, not just the months in which the income is earned. Thus, according to the results accruals of personal income tax already in September 2012 for the period from January to September 2012 there is an overpayment of personal income tax in the amount of 754 rubles. (RUB 9568 - RUB 8814):
- income from January to September 2012 - 120,000 rubles;
- tax deductions for personal income tax - 52,200 rubles. ((1400 rubles x 2 + 3000 rubles) x 8 months).
- tax for January - September 8,814 rubles. ((120,000 rubles - 52,200 rubles) x 13%).
At the same time, the surplus of personal income tax will increase every month until the end of the year as deductions are provided.

For your information! Standard deduction for children is provided until the income of the taxpayer is taxed at a rate of 13 percent, on an accrual basis from the beginning of the year 280,000 rubles. (subparagraph 4 of paragraph 1 of article 218 of the Tax Code).

According to paragraph 1 of Art. 231 of the Tax Code about every fact of excessive withholding personal income tax and its amount, the tax agent is obliged to inform the taxpayer within 10 days from the date of discovery of such a fact. Neither the form of such notification, nor the method of sending it is established by the Code. But as the specialists of the Ministry of Finance of Russia pointed out in the Letter of May 16 N 03-04-06 / 6-112, although the organization or entrepreneur in this case can use an arbitrary form, they must first agree on the procedure for sending a message with the taxpayer.
One way or another, it should be borne in mind that it is possible to judge whether an overpayment takes place only at the end of the tax period. In particular, this conclusion follows from the Letter of the Ministry of Finance of Russia dated February 3, 2012 N 03-04-06 / 8-20. In other words, there is no need to rush to notify an individual before the end of the year. So, if in the last months of the tax period the taxpayer has income taxable with personal income tax, the amount of the surplus may at least change if it does not go down to zero.

Example 2. An employee of the LLC from January to May 2012 received income in the amount of 125,000 rubles. During this period, the employee was provided with monthly standard personal income tax deductions:
- 1400 rubles. per month - for the first child;
- 1400 rubles. a month - for the second child.
The total amount of standard personal income tax deductions provided was 14,000 rubles. ((1400 rubles x 2) x 5 months). Personal income tax was calculated, withheld and transferred in the amount of 14,430 rubles. ((125,000 - 14,000) x 13%).
Since June 1, 2012, the employee has been granted maternity leave (140 days). Thus, according to the results of personal income tax accrual, already in June 2012 for the period from January to June 2012, an overpayment of personal income tax in the amount of 364 rubles arises. (RUB 14,430 - RUB 14,066):
- income from January to June 2012 - 125,000 rubles;
- tax deductions for personal income tax - 16 800 rubles. ((1400 rubles x 2 rubles) x 6 months).
- tax for January - June 14,066 rubles. ((125,000 rubles - 16,800 rubles) x 13%).
At the same time, the surplus of personal income tax will increase every month until the employee leaves maternity leave as deductions are provided.
On November 19, 2012, the employee came out of maternity leave and started working. She is set to work part-time. Wage in November amounted to 10,416.67 rubles, in December - 21,875 rubles.
Thus, according to the results of the accrual of personal income tax for the tax period, the overpayment will be reduced to zero, on the contrary, the amount of personal income tax will be added to the surcharge (16,080 rubles - 14,430 rubles):
- income for 2012 - 157,291.67 rubles;
- tax deductions for personal income tax - 33 600 rubles. ((1400 rubles x 2) x 12 months).
- tax for the year 16,080 rubles. ((157,291.67 rubles - 33,600 rubles) x 13%).

At the same time, if, according to the results of the tax period, personal income tax was nevertheless withheld excessively, then at the request of the taxpayer, the tax agent must return the overpayment (clause 1 of article 231 of the Tax Code). The algorithm of actions for this case is given in Art. 231 of the Tax Code.

Return procedure

By general rule the tax agent must return the excessively withheld personal income tax in cashless form by transferring funds to an individual's bank account... The taxpayer's account details should be indicated in the application. The time allotted for an individual is three months and counts from the moment he submits an application for a refund. For each day of delay, the taxpayer from the tax agent is entitled to interest calculated on the amount of excessively withheld personal income tax based on the refinancing rate of the Central Bank, which was in effect on the days of violation of the deadline (paragraph 5, clause 1 of article 231 of the Tax Code).

Note! The term for a taxpayer to submit an application for a personal income tax refund is limited to three years from the date of payment of tax(Clause 7 of Article 78 of the Tax Code, Letter of the Federal Tax Service of Russia for Moscow dated March 19, 2010 N 20-14 / 3 / [email protected]). Accordingly, when contacting a tax agent outside this period, the latter has the right to refuse the individual. However, it should be remembered that the taxpayer can achieve his own, including through the courts. Moreover, in this case, the general term is already in force. limitation period, which is calculated from the moment when the person learned or should have learned that his right has been violated (Article 196, paragraph 1 of Article 200 of the Civil Code).

A tax agent can return tax to an individual in two ways. Firstly, this can be done at the expense of the amounts of personal income tax to be transferred to the budget for forthcoming payments both for this taxpayer and for other individuals from whose income the tax agent withholds personal income tax.
Secondly, you can return the tax at your own expense, at the same time applying for the return of personal income tax to the tax office in the manner of Art. 78 of the Tax Code.
By by and large from the literal interpretation of the provisions of Art. 231 of the Code, it follows that the second method is designed for a situation when the amount of personal income tax to be transferred by the tax agent to the treasury is not enough to return the tax in the first way. Thus, the Tax Code states that the tax agent must apply for a refund to the IFTS within 10 days from the date of receipt of the application from the taxpayer. In this case, it is also necessary to add an extract from the tax accounting register for the relevant tax period and documents confirming the excessive withholding and transfer of the tax amount to the budget to the application to the inspectorate. At the same time, it is obvious that such a short period of time for contacting the Federal Tax Service Inspectorate presupposes making a decision on how to return the tax, directly upon receipt of an application from the taxpayer. After analyzing the relevant provisions of the Tax Code, the experts of the Ministry of Finance of Russia in Letter No. 03-04-06 / 6-112 dated May 16, 2011 came to the conclusion that in the situation under consideration, the tax agent is indeed given the right to choose whether to refund tax on his own or contact the inspectorate.
True, it will not be possible to do without contacting the inspectorate if the taxpayer wishes not to return the personal income tax that was excessively withheld from his income to a bank account, but to offset the overpayment against forthcoming payments.
At the same time, it is not always the tax agent that should deal with the tax refund.

Resident - non-resident

Individuals' income, depending on various circumstances, may be subject to personal income tax at different rates. So, in addition to other conditions, the tax rate of 13 percent applies only to income received by individuals with tax resident status. Income of taxpayers who are not recognized as residents in accordance with paragraph 2 of Art. 207 of the Tax Code, are subject to personal income tax at a rate of 30 percent. At the same time, any individual receives the status of a tax resident of the Russian Federation automatically on the 183rd day of stay in our country for the next 12 months in a row (clause 2 of article 207 of the Tax Code). Since in this case we are talking about any 12 months following each other, and by no means about a calendar year, the tax status of an individual can change from month to month (Letters of March 26, 2010 N 03-04-06 / 51, of 3 July 2007 N 03-04-06-01 / 207). Thus, during the year, various taxpayer income may be applied personal income tax rate, depending on whether the employee is a tax resident on a specific date of income payment.
At the same time, according to the results of the tax period, a single rate should still be applied to the income of an individual. So, finally, financiers indicate, the status of an individual in order to calculating personal income tax is determined at the end of the tax period or after the moment from which the status of the employee can no longer change again (Letters of the Ministry of Finance of Russia dated July 17, 2009 N 03-04-06-01 / 176, dated April 22, 2009 N 03- 04-06-01 / 105). Moreover, if it turns out that the tax status of the employee has changed on the corresponding date, then the tax withheld from his income at the "wrong" rate should be recalculated. It is obvious that if an employee has acquired the status of a tax resident, then an excessively withheld personal income tax arises.
Indeed, firstly, the tax charged on his income from the beginning of the year is recalculated at a lower rate (13 percent). Secondly, personal income tax deductions can be applied to his income, and if the employee has the right to such, then their amount must also be taken into account when recalculating (subparagraphs 3, 4, paragraph 1, paragraph 3 of article 218 of the Tax Code).
At the same time, by virtue of the direct instructions of the Tax Code, the return of such a surplus on personal income tax is not at all the concern of the tax agent. For the return of such a surplus, the taxpayer must apply directly to the tax office at the place of residence (Letter of the Ministry of Finance of Russia dated May 16, 2011 N 03-04-06 / 6-108). However, it should be borne in mind that, according to experts of the Federal Tax Service, there is still an exception to this rule.
As the representatives of the Federal Tax Service of Russia indicated in the Letter No. ED-4-3 / 9150 of June 9, 2011, referring, in turn, to the explanations of the experts of the financial department No. 01-SSh / 19 dated April 18, 2007, a taxpayer can acquire the status a tax resident of the Russian Federation immediately after July 3 of the corresponding calendar year, that is, long before the end of the tax period. At the same time, it is clear that in such a situation it is no longer possible to lose resident status before the end of the year. Thus, apparently, advocating for the interests of the taxpayer, the tax authorities considered that if, at the same time, all 183 days of his stay in Russia he worked in one organization, then the latter may well, at the request of the employee, not only recalculate the personal income tax for the previous months, but also return it to the individual before end of the year. However, the Tax Code does not establish such an obligation. Consequently,

Special case for personal income tax refund

Obviously, an overpayment of personal income tax may arise, among other things, as a result of an ordinary counting error or typo. In this case, it is important at what stage it happened. So, if as a result of such a tax was unnecessarily withheld, then it must be refunded in accordance with Art. 231 of the Tax Code. It's another matter if the personal income tax was withheld in the correct amount, but paid in more than necessary. What the tax agent should do in this case, the representatives of the Federal Tax Service of Russia answered in the Letter No. ED-4-3 / 10764 dated July 4, 2011.
As the tax authorities pointed out, the overpaid amount in such a situation, in principle, is no longer a tax on personal income, since the payment of it at the expense of the tax agent's own funds is prohibited. Accordingly, the presence of such an overpayment does not relieve the latter from the obligation to transfer to the budget personal income tax actually withheld from the income of individuals paid at a later date. The only option that the tax agent has in this situation, in the opinion of the controllers, is to apply for a refund to the current account of an amount that is not personal income tax and was mistakenly transferred to the treasury. Moreover, it seems that in this case it is impossible to do without reconciliation of calculations with the budget.