Quite often, employees need to improve their qualifications or level of education.
The employer is ready to invest money in such training, but on the condition that the employee continues to work.
In this article, we will figure out whether it is possible to withhold the money spent from an employee upon his dismissal, and how to do this correctly.
If there is a production need, the organization has the right conclude a student agreement with the employee on obtaining education.
It regulates the legal relationship between the parties and establishes the period that the employee undertakes to work for the company.
When the amount of expenses is not covered by the withholding, the employer first tries to reach an amicable agreement with the employee.
If no agreement is reached, the company has the right to file a claim in court. The procedure for withholding debt is established by Art. 248 Labor Code of the Russian Federation.
How to set the amount?
You can calculate the amount to be withheld for training based on Art. 249 Labor Code of the Russian Federation.
Calculus The amount for compensation is made in proportion to the time actually not worked.
However, the employment contract may establish other conditions, without prejudice to the employee under labor law.
Example:
Initial data:
Let's look at a specific example of how to calculate the amount to be reimbursed.
Let’s assume that an organization paid 30 thousand rubles for training an employee. The apprenticeship contract establishes a work period of one year, that is, 12 months. He worked for six months (6 months) and decided to quit.
Calculation:
The company will recover from him exactly half of the money spent, since he worked half of the period established by the contract (30,000 / 12 * 6 = 1,500 rubles).
A slightly different calculation principle can be prescribed in the student agreement. For example, calculations should be made on weekdays.
The same can be done in watches. The amount will be approximately the same, the differences are insignificant.
What to do if an employee refuses to return the money?
Quite often, employees do not want to return money to the employer for their training.
They mistakenly think that it is impossible to collect from them more than they have been charged.
Practice shows that the employer will be able to withhold only twenty percent from accrued settlement amounts, and the rest the amount of debt can be claimed through the court.
The procedure for the employer is as follows:
- Collection of documentation:
- agreement signed by the parties;
- settlement note reflecting the amount withheld;
- calculation indicating the amount of the employee’s debt;
- dismissal order;
- title documents of the company;
- power of attorney of a person acting in the interests of the company.
It would be good if the company additionally sent a demand to the debtor to pay the debt.
The package of documents required attach a notification of delivery of the letter (with demand) with a list of attachments.
From the above procedure, we can conclude that it is not profitable for the employee to hide, but it is better to pay off the debt by agreement. In fact it will be much cheaper.
Conclusions
Let us highlight several main points on the presented topic.
CM. Aipkin,
senior consultant of AKG "Intercom-Audit" (VKR)
1. General provisions
In economic practice, reimbursement of costs in cash by one party to the other party is carried out if one party bears costs for the other party, which can subsequently be reimbursed to it on the basis of civil contracts in terms of:
Costs related to property in temporary possession and use or temporary use;
Costs incurred by the contractor when providing services (performing work) to the customer on the basis of a paid services agreement (contract).
Costs related to property that is in temporary possession and use or in temporary use (rented) may include the lessor's costs for insurance of the leased property, utility bills, fees for communication services, etc.
Costs incurred by the contractor when providing services (performing work) to the customer on the basis of a contract for paid services (contractor agreement) may include travel costs to the place of provision of services (performance of work), living costs and other costs incurred by the contractor, etc. .
This article does not cover the following cases:
Reimbursement of costs in cash, which is part of the price (variable price) of civil contracts;
Relating to intermediary relations, when the lessor (performer) is instructed by the lessee (customer) to carry out certain actions (conclude agreements with specialized organizations) on its own behalf and at the expense of the guarantor or on behalf and at the expense of the guarantor.
In other words, the article describes a situation in which one party reimburses costs in cash to the other party in excess of the price of a non-intermediary contract determined by these parties.
2. Taxation upon transfer of reimbursement of costs
Income tax. According to Art. 252 of the Tax Code of the Russian Federation (TC RF), for profit tax purposes, expenses incurred (incurred) by the taxpayer are recognized, provided that they are justified and documented.
Therefore, in order for an economic justification for expenses to arise for a person reimbursing costs in cash, the following is necessary: firstly, the condition for reimbursement of costs in cash must be specified in the relevant agreements [lease agreement, contract for paid services (contractor agreement)] or written down in a separate agreement with reference to the contract under which costs will be reimbursed in cash; secondly, expenses for reimbursement of costs in cash must be aimed at generating income.
Based on this, in order for cost recovery costs to be economically justified, the lessee (customer) must reimburse only those costs that were incurred for him.
With regard to documentary evidence of expenses for reimbursement of expenses, the tenant (customer) who reimburses the funds must have available, and therefore must receive from the party to whom the expenses are reimbursed, the following documents:
When reimbursing costs under a lease agreement - a cost reimbursement act issued by the lessor, with attached copies of primary accounting documents (invoices) certified by the lessor, issued by specialized organizations (energy supply organizations, telecom operators, etc.), with a breakdown of the costs incurred the lessor under an agreement between him and specialized organizations;
When reimbursement of costs under a contract for the provision of paid services - an act of reimbursement of costs with attached copies of primary accounting documents certified by the contractor confirming the costs incurred (incurred) by the contractor for the customer.
Amounts of reimbursement of costs in cash, that is, each certain amount of costs that were incurred for the tenant (customer), are taken into account for profit tax purposes as part of other expenses associated with production and sales, in accordance with the list given in Art. 264 Tax Code of the Russian Federation.
The tenant (customer) who reimburses costs does not have the right to deduct VAT, since, based on clause 1 of Art. 39 and subparagraph 1 of paragraph 1 of Art. 146 of the Tax Code of the Russian Federation, the lessor (performer) cannot present the amount of VAT to the person reimbursing the costs, since there is no sales transaction.
This raises the question: what to do with that part of the compensation amount that relates to the reimbursement of the VAT amount previously presented to the lessor (performer) by specialized organizations, if this VAT amount cannot be reflected in the primary accounting documents, taken for deduction, and an invoice cannot be issued? upon reimbursement? Can this amount be expensed when determining the tax base for income tax?
Example.
In May 2008, the lessor paid the telecom operator 118 rubles. (including VAT - 18 rubles) for the services provided by the latter. Based on the terms of the lease agreement, the landlord presented the tenant with an amount of 59 rubles for reimbursement, that is, exactly half of what he paid to the telecom operator. In other words, the tenant reimbursed the landlord the amount of 59 rubles, including 50 rubles. cost of services excluding VAT and 9 rubles. VAT. However, compensation is not recognized as subject to VAT according to clause 1 art. 39 , subparagraph 1 clause 1 art. 146 Tax Code of the Russian Federation . Consequently, in the reimbursement act it was necessary to indicate the amount of reimbursement in the amount of 59 rubles. and indicate: "is not subject to VAT" .
Make an inscription in the act for reimbursement of expenses "No tax (VAT)" it is impossible, because according to clause 5 art. 168 Tax Code of the Russian Federation such an inscription is made in primary accounting documents only when selling goods (works, services), sales operations which not subject to VAT (exempt from taxation) in accordance with Art. 149 Code , and also upon release taxpayer according to Art. 145 Tax Code of the Russian Federation from fulfilling the duties of a taxpayer.
In this example, the refund is not implementation operation based on clause 1 art. 39 Tax Code of the Russian Federation and regardless of whether a person is exempt from fulfilling his duties as a taxpayer or not, compensation wasn't subject to VAT.
Thus, the lessor (performer), who was reimbursed for expenses, had to issue an act in which he had to indicate the amount he paid for the tenant (customer), including the amount of VAT, and reflect in the act that the reimbursement was not subject to VAT.
In this case, there is no need to issue an invoice for the amount of compensation with or without highlighting VAT amounts, since there was no object subject to VAT.
The act also cannot highlight the amount of VAT. Otherwise, the person who reimbursed the amount paid for him (expenses in cash) would not be able to attribute these amounts to expenses in full for the purposes of taxation of profits, as well as for the purposes of taxation of income reduced by the amount of expenses, when applying the simplified taxation system. could do this only after deducting VAT.
This follows:
- from clause 2 art. 170 Tax Code of the Russian Federation , which does not provide for cases of including VAT amounts in the cost of goods (work, services) when purchasing them for operations that are not recognized as sales. INa similar case is given when VAT amounts are included in the cost of goods (work, services) upon their acquisition, for the sale of goods (works, services) , operations for the implementation of which are not recognized sales of goods (works, services) in accordance with clause 2 art. 146 of this Code . However, this case applies to sales operations which, on the basis of clause 2 art. 146 Tax Code of the Russian Federation sales are not recognized, and compensation from the very beginning cannot be based on clause 1 art. 39 Code be recognized as a sales operation. In other words, the case indicated in subclause 4 clause 2 art. 170 Tax Code of the Russian Federation , as well as other cases given in clause 2 art. 170 of this Code , do not apply to operations for reimbursement of costs in cash;
- from clause 1 art. 252 Tax Code of the Russian Federation , according to which costs reimbursed to the lessor (performer) and related directly to the lessee (customer) are not economically justified expenses;
- from clause 2 art. 346.16 Tax Code of the Russian Federation , according to which those specified in subclause 8 clause 1 art. Code 346.16 VAT amounts on purchased and paid goods (works, services) are accepted for accounting by organizations (individual entrepreneurs) applying the simplified taxation system, provided they meet the criteria specified in clause 1 art. 252 of this Code (see previous paragraph).
According to Art. 346.16 of the Tax Code of the Russian Federation, a tenant (customer) who reimburses costs (payments) has the right to reduce income if he has chosen the object of taxation in the form of income reduced by the amount of expenses, in the amount of only those costs (payments) reimbursed to him, which are indicated in the list given in clause 1 art. 346.16 of this Code.
Such expenses must meet the criteria specified in paragraph 1 of Art. 252 of the Tax Code of the Russian Federation, that is, they must be economically justified and documented.
3. Taxation upon receipt of reimbursement of expenses
According to Art. 41 of the Tax Code of the Russian Federation, income is recognized as economic benefit in cash or in kind, taken into account if it is possible to evaluate it and to the extent that such benefit can be assessed, and determined in accordance with Chapters 23, 25 of this Code.
However, the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 17, 1998 N 4926/97 states that if costs are reimbursed by one party, then the recipient of this compensation (the other party) does not generate income in this part. A similar position was also expressed in a letter from the Ministry of Finance of Russia dated June 20, 2006 N 03-05-01-04/165.
At the same time, there is an opinion among experts, given in the letter of the Ministry of Finance of Russia dated April 21, 2008 N 03-04-06-01/96, according to which, when costs are reimbursed, the party receiving this reimbursement has an economic benefit (income) in accordance with Art. 41 Tax Code of the Russian Federation.
Therefore, we will consider cases of reimbursement of expenses when reimbursement of expenses is not recognized as income according to the first opinion and when such reimbursement is recognized as income according to the second opinion.
Opinion one: compensation received not recognized income. The amount of remuneration received by the lessor (performer) is not an economic benefit (income), since the amount of compensation only covers the costs incurred by the lessor (performer) for the other party to the contract, that is, for the tenant (customer), and will not bring any benefits to the lessor (performer) - other income, except for those that he will receive under a lease agreement, paid services (contract agreement).
Thus, for the lessor (performer), the amount of reimbursement received will not be recognized as income, and therefore, such amount of reimbursement will not be taken into account when determining the tax base:
For income tax;
For personal income tax, if the lessor (executor) is an individual or individual entrepreneur who does not apply the simplified taxation system;
For a single tax paid in connection with the application of a simplified taxation system;
As for the expenses of the lessor (performer), carried out (incurred) on the basis of contracts with specialized organizations, they will be taken into account for taxation only in the amount that relates directly to them (the lessor, performer), that is, which is not reimbursed to them.
This follows from the provisions of paragraph 1 of Art. 252 of the Tax Code of the Russian Federation, according to which income is reduced by the amount of expenses if they are documented and economically justified, that is, economically justified.
The economic justification of expenses cannot take place if the expenses are not aimed at generating income. Since the lessor (performer) the amount of reimbursement received in cash is not recognized as income, due to the fact that there is no economic benefit based on the provisions of Art. 41 of the Tax Code of the Russian Federation, then the amount of expenses in the part that is reimbursed cannot be taken into account as expenses for tax purposes:
Profit;
Income of individuals, if the lessor (executor) is an individual (individual entrepreneur who does not apply the simplified taxation system);
Income reduced by the amount of expenses of organizations (individual entrepreneurs) using a simplified taxation system;
According to subparagraph 1 of paragraph 2 of Art. 171 of the Tax Code of the Russian Federation, VAT amounts presented to the taxpayer when purchasing goods (work, services) for carrying out transactions recognized as objects of VAT taxation in accordance with Art. 146 of this Code, that is, for carrying out operations for the sale of goods (works, services).
According to paragraph 1 of Art. 39 of the Tax Code of the Russian Federation, the sale of goods (work, services) is recognized accordingly:
Transfer of ownership of goods on a reimbursable basis;
Transfer on a reimbursable basis of the results of work performed by one person to another person;
The provision of services for compensation by one person to another person.
Reimbursement of expenses in cash is neither a transfer on a reimbursable basis of ownership of goods, results of work performed, nor the provision of services for a fee by one person to another person. Consequently, reimbursement of costs in cash received by the lessor (performer) is not a sale.
Therefore, the amount of VAT presented to the lessor (performer) by specialized organizations in part of the amount that is reimbursed by the lessee (customer) cannot be deducted, since part of the service provided by specialized organizations, payment for which is reimbursed by the lessee (customer), was purchased for the operation (compensation), not recognized in accordance with paragraph 1 of Art. 39 of the Tax Code of the Russian Federation implementation.
This amount of VAT cannot also be attributed to expenses for profit tax purposes, as well as for tax purposes of income reduced by the amount of expenses when applying the simplified taxation system.
Second opinion: compensation received recognized income.
The amount of remuneration received by the lessor (performer) is an economic benefit (income), since the amount of remuneration will cover the costs already incurred, as well as recognized costs.
Income tax. For income tax purposes, profits are classified according to paragraph 1 of Art. 248 Tax Code of the Russian Federation:
Income from the sale of goods (work, services) and property rights (income from sales);
Non-operating income.
When determining income, the amounts of taxes charged by the taxpayer to the buyer (acquirer) of goods (work, services, property rights) are excluded from them (clause 1 of Article 248 of the Tax Code of the Russian Federation).
Income is determined on the basis of primary documents and other documents confirming the income received by the taxpayer, and tax accounting documents (clause 1 of Article 248 of the Tax Code of the Russian Federation).
Let's consider what income the amount of reimbursement of expenses received by the lessor (performer) in cash relates to: income from sales or non-operating income.
According to Art. 249 of the Tax Code of the Russian Federation, sales income is revenue from the sale of goods (work, services), which is determined on the basis of all receipts associated with payments for sold goods (work, services) or property rights, expressed in monetary and (or) in-kind forms.
As stated above, reimbursement of costs in cash received by the lessor (performer) is not a sale in accordance with clause 1 of Art. 39 Tax Code of the Russian Federation.
Therefore, the amount of reimbursement received in cash will be taken into account by the lessor (performer) as part of non-operating income, the list of which is in accordance with Art. 250 of the Tax Code of the Russian Federation is open.
Due to the fact that reimbursement of costs received by the lessor (performer) is recognized as economic benefit (income), the lessor (performer) has the right to take into account when taxing profits the entire amount of expenses incurred on the basis of contracts with specialized organizations, including the amount of expenses incurred for the lessee ( customer).
As already mentioned above, expenses are taken into account when taxing profits if they are documented and economically justified (clause 1 of Article 252 of the Tax Code of the Russian Federation). In this case, the lessor (performer) has an economic justification for the expenses, since having made these expenses, he received income in the form of cash reimbursement for the expenses he incurred.
Personal income tax. If an individual (individual entrepreneur who does not apply the simplified taxation system), as a lessor (performer), receives compensation for expenses incurred by him in cash, the amount of this compensation will be taken into account in accordance with clause 1 of Art. 210 of the Tax Code of the Russian Federation as income received in cash.
Such income will be included when determining the tax base for personal income tax and accordingly taxed at the tax rate established by clause 1 of Art. 224 of the Tax Code of the Russian Federation, if the lessors (performers) are residents, that is, at a rate of 13%.
In accordance with Art. 221 of the Tax Code of the Russian Federation, when calculating the tax base for personal income tax, determined on the basis of income for which a tax rate of 13% is provided, the following categories of personal income tax payers have the right to receive professional tax deductions:
According to paragraph 1 of Art. 221 of the Tax Code of the Russian Federation, individual entrepreneurs who do not apply the simplified taxation system - in the amount of expenses actually incurred by them and documented, directly related to the extraction of income. The composition of expenses accepted for deduction is determined by the payer of personal income tax independently in a manner similar to the procedure for determining expenses for profit tax purposes established by Chapter 25 of the Tax Code of the Russian Federation;
In accordance with paragraph 2 of Art. 221 of the Tax Code of the Russian Federation, individuals who are not individual entrepreneurs and receive income from the performance of work (provision of services) under civil contracts - in the amount of expenses actually incurred by them and documented expenses directly related to the performance of these works (provision of services). Let us remind readers of the magazine that for tax purposes, rent is recognized as a service. Since the lease agreement is a civil contract, and the lease itself for tax purposes is a service, the provisions of clause 2 of Art. 221 of the Tax Code of the Russian Federation also applies to individuals - lessors who are not individual entrepreneurs.
However, the Ministry of Finance of Russia expressed in a letter dated 04/21/2008 N 03-04-06-01/96 the opinion that expenses incurred by an individual for a tenant (customer) and subsequently reimbursed to this individual cannot be accepted by him as professional tax deductions when calculating personal income tax.
The author of this article does not agree with this opinion and draws the attention of readers of the magazine to the fact that this letter from the Ministry of Finance of Russia also speaks of the emergence, based on the provisions of Art. 41 of the Tax Code of the Russian Federation of economic benefit (income) from an individual who received reimbursement of expenses in cash.
Consequently, if an individual receives economic benefit (income) from performing work (providing services) in the form of compensation received by him, as stated above, then the expenses incurred by this individual should be taken into account as part of professional tax deductions for which a person has the right according to paragraph 2 of Art. 221 Tax Code of the Russian Federation.
Value added tax. As stated above, reimbursement of costs in cash is not based on clause 1 of Art. 39 of the Tax Code of the Russian Federation as a sale, and therefore cannot be recognized as subject to VAT, determined in accordance with subparagraph 1 of clause 1 of Art. 146 of this Code.
Therefore, when drawing up an act of reimbursement of costs in cash, it must indicate the amount of actually reimbursed costs for the acquisition, for example, by the lessor (contractor) of communication services, including the amount of VAT presented by the telecom operator to the lessor (contractor).
The amount of VAT presented to the lessor (performer) by specialized organizations is accepted for deduction only in that part that is not reimbursed by the lessee (customer), that is, which directly relates to the lessors (performers) themselves.
This follows from the fact that, according to subparagraph 1 of paragraph 2 of Art. 171 of the Tax Code of the Russian Federation, VAT amounts presented to the taxpayer when purchasing goods (work, services) for carrying out transactions recognized as objects of VAT taxation in accordance with Art. 146 of the Tax Code of the Russian Federation, that is, for carrying out operations for the sale of goods (works, services). Reimbursement in cash for the costs of purchasing a service for the tenant (customer) is not, as stated above, a sale. Therefore, the lessor (performer) cannot deduct that part of the VAT that is reimbursed to the lessor (performer) along with the costs incurred in purchasing services for the lessee (customer).
Simplified taxation system. If the lessor (executor) - a single tax payer, when applying the simplified taxation system, receives compensation for expenses incurred by him in cash, the amount of this compensation will be taken into account in accordance with paragraph three of clause 1 of Art. 346.15 of the Tax Code of the Russian Federation as part of non-operating income.
As for the expenses incurred by the lessor (contractor) on the basis of contracts with specialized organizations, including the amount of expenses incurred for the tenant (customer), the lessor (contractor) has the right to take into account these costs (utility payments, payment for communication services, etc.), if they are directly listed in paragraph 1 of Art. 346.16 of the Tax Code of the Russian Federation, and also if they meet the criteria given in paragraph 1 of Art. 252 of this Code.
In conclusion, the author notes that in order to avoid disputes with the tax authorities, transactions for reimbursement of expenses to the lessor (performer) are more correctly reflected as reimbursement of expenses that are not recognized as economic benefits (income).
Recently, employers have become more active in their efforts to improve the qualifications of their staff. Training through production allows you to take an enterprise to a new economic level, improve the quality of goods produced, and also improve operational efficiency. But not always everything planned comes true. Sometimes an employee, having received the proper education, writes a letter of resignation. What should the employer do in this case, since he has already incurred considerable expenses. Today we will show you how to correctly formalize your relationship with an employee, so that in the event of his dismissal, you can reimburse the costs of training the employee.
What conditions need to be fixed in the contract?
Before sending an employee for training, you must conclude an agreement with him, which obliges him to work at your company for a specified period after receiving his education.
Such an agreement is an addition to. By the way, when employing a person who has successfully completed the entire course of training, a probationary period is not provided. The employer who paid for the training wants to see educated personnel at the enterprise, but there are situations when employees who have completed the training do not want to continue working at the enterprise that gave them such an opportunity. In this case, the company’s management has the right to demand that the student reimburse the costs associated with training the employee (Article 207 of the Labor Code of the Russian Federation). How to make the calculation correctly is stated in Art. 249 Labor Code of the Russian Federation. That is, when dismissing an employee, an enterprise can request reimbursement of expenses incurred for his education in an amount proportional to the time not worked.
To avoid disputes in the future, when concluding an additional agreement for education, try to reflect all controversial issues in it:
- The period during which the student must work after completing the training.
- In which educational institution the employee will be trained.
- Which reasons for dismissal will be considered valid and which will not.
- Types of expenses that the employer will incur during the training of future personnel.
- Terms for reimbursement of expenses to the enterprise in case of dismissal without good reason.
Some employers, in addition to the costs directly for training, consider it legal to recover travel expenses, fees and other expenses from a former student. However, this point of view is not supported by legislation, which only talks about reimbursement of training costs.
How to recover damages
Once the employee is fired, it will no longer work. This issue is regulated by Art. 248 Labor Code of the Russian Federation. If the amount of the recovery does not exceed the average monthly earnings, the employer can independently carry out the recovery by issuing the appropriate notice. Before this, he needs to receive a letter from the employee, in which he expresses his consent that, upon final payment, losses for his training will be paid from his salary. Based on this document, accounting staff have the right to withhold appropriate amounts.
In case of excess costs, compensation is made through legal proceedings. If this provision is violated, the student has the right to appeal to the courts and protest the employer’s actions. If the amount to be reimbursed is too large for the employee, then he can agree with the employer on some installment plan. But it is better to resolve this issue in advance and describe all possible nuances in the student agreement.
To summarize the above, we repeat that sending employees for training is a fairly profitable undertaking, but in order to avoid unpleasant consequences for both parties, discuss all the details when concluding the contract.
