Situation

In accordance with the Letters of the Ministry of Finance of Russia of July 23, 2012 N 03-04-06 / 8-207, of March 27, 2012 N 03-04-06 / 8-80, of February 3, 2012 N 03-04-06 / 8-20 , if in certain months of the tax period the taxpayer did not have income subject to personal income tax at a rate of 13%, standard tax deductions are provided for each month of the tax period, including those months in which there were no income payments.

In accordance with paragraph 3 of Art. 226 of the Tax Code of the Russian Federation, an organization - a tax agent must calculate the amount of tax on an accrual basis from the beginning of the year in relation to all income in respect of which a tax rate of 13% is applied, taking into account tax deductions and offsetting the amount of tax withheld in previous months of the current year.

If at the end of the year the employee has an overpayment, then it is the tax amount withheld excessively from the taxpayer's income by the tax agent, which is subject to refund on the basis of the employee's application in the manner established by paragraph 1 of Art. 231 of the Tax Code of the Russian Federation.

According to paragraph 7 of Art. 78 of the Tax Code of the Russian Federation, an application for a set-off or a refund of the amount of overpaid tax may be filed within three years from the date of payment of the specified amount.

In accordance with the Letter of the Ministry of Finance of Russia dated December 27, 2012 N 03-04-06 / 4-370, in the presence of a tax agent, the tax authority cannot refund the amount of tax excessively withheld by the tax agent.

According to paragraph 4 of Art. 218 of the Tax Code of the Russian Federation, if during the tax period the standard tax deductions were not provided to the taxpayer or were provided in a smaller amount, then at the end of the tax period on the basis of tax return and documents confirming the right to such deductions, the tax authority recalculates the tax base, taking into account the provision of standard tax deductions in the amounts provided for in Art. 218 of the Tax Code of the Russian Federation.

Situation

For example, the income of an employee from January to October 2012 amounted to 100 thousand rubles. Since November 2012, the employee has been on maternity leave and until the end of 2012 has no income subject to personal income tax at a rate of 13%. During 2012 (including in November and December), the employee is provided with standard personal income tax deductions for the first child.

Question

Is it legal to return personal income tax by the employer in 2013 if there is an application from the employee? Or does an employee need to contact the tax authority to return personal income tax?

The Ministry of Finance in a letter dated 05/06/2013 N 03-04-06 / 15669 reports the following.

Answer

It follows from the letter that the employee of the organization received income from January to October 2012. Since November 2012, the employee has been on maternity leave and did not receive income taxed at a rate of 13% until the end of the year.

P. 3 Art. 226 of the Tax Code establishes that the calculation of tax amounts is made by tax agents on an accrual basis from the beginning of the tax period at the end of each month in relation to all income for which the tax rate established by paragraph 1 of Art. 224 of the Tax Code, accrued to the taxpayer for this period, with offset of the amount of tax withheld in previous months of the current tax period.

Established paragraphs. 4 p. 1 art. 218 of the Tax Code, standard tax deductions are provided to the taxpayer for each month of the tax period by reducing the tax base calculated by the tax agent on an accrual basis in each month of the tax period by the appropriate established amount of the deduction.

If in certain months of the tax period the taxpayer did not have income subject to personal income tax at a rate of 13%, standard tax deductions are provided in subsequent months in which such income was received, for each month of the tax period, including those months in which there were no income payments .

If the payment of income, starting from any month, is completely stopped and is not resumed before the end of the tax period, the standard tax deduction for the indicated months of the tax period cannot be provided by the tax agent.

A similar position is reflected in the more recent letter of the Ministry of Finance dated December 9, 2013 N 03-04-05/53646.

According to paragraph 3 of Art. 210 of the Tax Code for income for which a tax rate of 13% is provided, established by paragraph 1 of Art. 224 of the Tax Code, the tax base is defined as the monetary value of such income subject to taxation, reduced by the amount of tax deductions provided for in Art. Art. 218 - 221 of the Tax Code. So, for example, when determining the size of the tax base, a parent who provides for a child under the age of 18 has the right to receive a tax deduction in the amount of 1,400 rubles. for each month of the tax period.

In cases where the payment of income, for example, in connection with pregnancy and childbirth, is completely stopped and is not resumed before the end of the tax period, the standard tax deduction for the indicated months of the tax period is not provided by the tax agent, since the tax base after the termination of payments is not determined.

AAA-Invest specialists will perform for you the services of filling out and filing a tax return for personal income tax, including remotely for clients from any region of the Russian Federation.

The impossibility of a face-to-face meeting is not an obstacle to the performance of services by our experts!

How to reflect in the organization's accounting the accrual and payment in July 2011 of a bonus based on the results of work in 2010 to an employee who has been on parental leave since December 2010. In what amount is the employee provided with standard personal income tax deductions and whether the organization must make recalculation of maternity benefit and monthly child care allowance?

The bonus is accrued in proportion to the amount worked by the employee in 2010.

Personal income tax deduction upon termination of payments due to parental leave

In the event of termination of payments to an employee (for example, in connection with parental leave), the personal income tax deduction for the child for the months of the tax period preceding the month of the resumption of such payments is not provided by the tax agent and the tax base inspectorate does not recalculate

On providing an employee who has been on parental leave since August 2010 with a standard personal income tax deduction for a child, if from 13.

Children's "deduction after the decree

In a letter dated 06/11/2014 No. 03-04-05 / 28141, the Ministry of Finance of Russia stated that if an employee left the decree in the middle of the year, then she was not entitled to standard deductions for a child for the last months of this year. The opinion of officials was a complete surprise. After all, not only arbitrators, but also the financiers themselves expressed a completely different point of view in the past.

In its letter, the Ministry of Finance of Russia considered the following situation: a woman who has been on parental leave since August 2010

The Ministry of Finance is against the provision of personal income tax deductions for - unprofitable - months

Tax deduction after maternity leave

If an employee left after a parental leave of up to three years in September, does she need to provide a tax deduction for the child from the beginning of the year or from September? How should she write a statement?

An employee needs to write an application for a tax deduction from January 2014, and the institution is obliged to provide them. At the same time, do not be confused by the letter of the Ministry of Finance of Russia dated June 11, 2014 No. 03-04-05 / 28141.

Personal income tax after the release of their parental leave up to 1.5 years

An employee returned to work in August from maternity leave for a child under 1.5 years old. How are tax deductions for myself and for a child, from the beginning of the year, and are benefits taken into account? If from the beginning of the year, then it turns out that the debt for the tax agent will be 7 (400 + 1000) \u003d 9800 13% \u003d 1274 rubles. Is it so?

The established Art. 218 of the Tax Code of the Russian Federation, standard tax deductions are provided to the taxpayer for each month of the tax period by reducing the tax base in each month of the tax period by the appropriate established amount of the deduction.

personal income tax after parental leave

If your employee left parental leave in the middle of the year, then, according to the Ministry of Finance, you can provide a child deduction to her only starting from the month for which she received her first salary. And for the “unprofitable” months (from the beginning of the year to the month of going to work), she is not entitled to a deduction.

By the way, last year there was an explanation regarding the mirror situation. If the payment of income starting from any month is completely stopped and is not resumed until the end of the calendar year, the employer does not provide a child deduction for this time.

On the provision of a certificate in the form of 2-NDFL to an employee who is on leave to care for a child under 1.5 years old

P. 1, Art. 217 of the Tax Code of the Russian Federation provides that state benefits are not subject to taxation (exempted from taxation), with the exception of temporary disability benefits (including benefits for caring for a sick child), as well as other payments and compensations paid in accordance with applicable law. At the same time, benefits that are not subject to taxation include unemployment benefits, maternity benefits.

Are maternity taxes subject to income tax?

When sending a pregnant employee on vacation, it is necessary not only to correctly calculate the allowance, but also to know exactly whether maternity personal income tax is subject to. This will be discussed in this article.

Question

Good afternoon!

An employee leaves the organization on the last day of parental leave. She had no income. But there is compensation for previously unspent leave. The employee was given a deduction for the first child, and she also wrote an application for a deduction for the second child. What deduction should we give her: for the current month, or for the previous 6 months too? What is the opinion on this issue this moment from the finance ministry?

Answer

Prohibition to provide a deduction for each month of the tax period in the absence of individual in certain months of the tax period, income taxed at a rate of 13% is not established by the Tax Code of the Russian Federation. This point of view is supported, among other things, by the Presidium of the Supreme Arbitration Court of the Russian Federation in Resolution No. 4431/09 of July 14, 2009. See also Decree of the Federal Antimonopoly Service of the Moscow District dated January 24, 2011 N KA-A40 / 16982-10.

If we are guided by the explanations of the Ministry of Finance of Russia, given in the Letter of 06/11/2014 N 03-04-05 / 28141, in relation to standard deductions for a child, then in this case they are not provided for those months of the tax period that preceded the employee’s vacation, since the tax base for this period is not determined. It also follows from the Letter that in the situation under consideration, the inspectorate cannot recalculate the tax base for the tax period, taking into account the provision of deductions for each month of the tax period (including the months preceding the employee's vacation).

At the same time, when considering the issue under analysis, it is necessary to pay attention to the Letter of the Ministry of Finance of Russia dated October 22, 2014 N 03-04-06 / 53186. It states that if the taxpayer had no income in certain months of the tax period, standard deductions are provided to him for each month, including for those months in which income was not paid.

It is worth noting that it does not follow from the wording of this Letter that it refers directly to the employee's exit from maternity leave (leave to care for a child). However, in our opinion, these explanations can be applied in the situation under consideration.

In view of the foregoing, if the tax agent provides the employee with deductions for the months in which she has not yet worked, the tax authority may try to hold him liable under Art. 123 of the Tax Code of the Russian Federation.

If the tax authority may try to hold you liable under Art. 123 of the Tax Code of the Russian Federation, you have the right to choose what to do:

— fulfill the requirements of the inspection (including paying a fine, penalties);

- to prove to the inspection the legitimacy of their actions by filing objections to the inspection report (clause 6, article 100 of the Tax Code of the Russian Federation);

- appeal against the decision of the inspection to a higher tax authority, and then, if necessary, to the court (clauses 1, 2, article 138 of the Tax Code of the Russian Federation).

At the same time, in order to avoid disputes, we recommend that you clarify the position of your tax office on this issue.

From January to June 2013, the employee was on leave to care for a child under 3 years old. She went to work in July. Has 2 minor children, i.e. has the right to a social deduction. The social deduction for children is provided from the moment of receipt of income, i.e. from July or January 2013 on an accrual basis.

The deduction is retained by the employee even in those months in which he did not have income subject to personal income tax at a rate of 13 percent. The deductions for these months are accumulated and added to the deduction for the month in which the employee began to receive such income again. Thus, you must provide deductions from January.

The rationale for this position is given below in the recommendation, in the article of the journal "Salary", which you can find in the bookmark Journals "Systems Chief Accountant" version for commercial organizations

1.Situation: Whether an employee needs to provide standard child tax deductions if there is no income in certain months of the calendar year. The employee is in an employment relationship with the organization

Standard tax deductions can only reduce those incomes for which a 13% personal income tax rate is applied (clause 3, article 210 of the Tax Code of the Russian Federation). Paragraph 1 of Article 218 of the Tax Code of the Russian Federation states that a standard personal income tax deduction is provided for each month of the tax period. From the literal interpretation of this rule, it follows that the employee retains the right to deduct even in those months in which he did not have income subject to personal income tax at a rate of 13 percent. The deductions for these months are accumulated and added to the deduction for the month in which the employee began to receive such income again. Similar clarifications are contained in the letters of the Ministry of Finance of Russia dated January 13, 2012 No. 03-04-05 / 8-10, dated August 19, 2008 No. 03-04-06-01 / 254, Federal Tax Service of Russia dated February 11, 2005 No. 04-2-02/35 . The legitimacy of this approach is confirmed by the decision of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 14, 2009 No. 4431/09.

If, at the end of the year, due to the transfer of deductions, the employee has an overpayment on personal income tax, the amount of excess tax withheld can be returned to him in the manner prescribed by paragraph 1 of Article 231 of the Tax Code of the Russian Federation. This is stated in the letter of the Ministry of Finance of Russia dated April 3, 2012 No. 03-04-06 / 8-96.

It should be noted that the described procedure is valid only within one tax period. If by the end of the calendar year the payment of income subject to personal income tax at a rate of 13 percent has not been resumed, the employee loses the right to standard deductions for those months in which he had no income. This is stated in the letter of the Ministry of Finance of Russia dated May 6, 2013 No. 03-04-06 / 15669.

Sergei Razgulin, Deputy Director of the Department of Tax and Customs Tariff Policy of the Ministry of Finance of Russia

2. Article:QUESTIONS ON FILLING OUT THE CERTIFICATE FOR FORM 2-NDFL

SITUATION TWO - THE APPLICATION FOR THE "CHILD" DEPOSIT IS SUBMITTED AFTER LEAVING THE CHILD

At the end of parental leave in April 2013, the employee returned to work. She has two three-year-old twin children. The employee submitted to the accounting department an application for granting her a "child" deduction. But from what time should this deduction be provided - from the beginning of 2013 or from April, when the application was submitted?

Tax period for personal income tax - year (Article 216 of the Tax Code of the Russian Federation)

"Salary", 2013, N 5

Sincerely,

expert of System Glavbukh

Bembeeva Marina

Answer approved:

Deputy head of the group hotline according to the accounting methodology of "System Glavbukh"

Rodionov Alexander

_____________________________

The answer to your question is given in accordance with the rules of the “Hot Line” of the “Glavbukh System”, which you can find at: http://www.1gl.ru/#/hotline/rules/?step=14

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Letter of the Ministry of Finance dated 11.06.2014 N 03-04-05 / 28141

If your employee left parental leave in the middle of the year, then, according to the Ministry of Finance, you can provide a child deduction to her only starting from the month for which she received her first salary. And for the "unprofitable" months (from the beginning of the year to the month of going to work), she is not entitled to a deduction.

By the way, last year there was an explanation regarding the mirror situation. If the payment of income starting from any month is completely stopped and is not resumed before the end of the calendar year, the employer does not provide a child deduction for this time<1>. A similar opinion was expressed by the FTS.<2>. And in its earlier Letter, which also concerned women on maternity and childcare leave, the Ministry of Finance said that the deduction is provided for each month of the year, including those months in which there were no income payments, provided that that the whole year was non-zero<3>.

We asked the Ministry of Finance to provide clarification on the issue of granting deductions for children.

Stelmakh Nikolai Nikolaevich - Counselor of the State Civil Service of the Russian Federation, 1st class

"As a general rule, a standard deduction for children is provided for each month of the tax period (calendar year). That is, Article 218 of the Tax Code of the Russian Federation does not contain rules prohibiting the provision of a deduction for children for those months in which employees had no income subject to personal income tax.

At the same time, when granting a deduction for children, attention should be paid to the features that are set out in the indicated Letters of the Ministry of Finance of Russia.

So, from the Letter of the Ministry of Finance of 06.02.2013 N 03-04-06 / 8-36 it follows that in January 2012 the employee submitted to the accounting department an application and documents confirming the right to receive a deduction for the child. At the same time, since she had been on maternity leave since September 2012, she was not paid for September-November, and in December she was paid a one-time monetary remuneration.

In this case, the personal income tax base was calculated for each month during the entire calendar year. Therefore, although in certain months of the calendar year the organization did not pay income taxable to the employee (for example, in September - November), deductions for children are provided for each month of the year, including those months in which there were no income payments (September - November).

And in the Letter of the Ministry of Finance dated 11.06.2014 N 03-04-05 / 28141, a different situation is described, when from August 2010 to August 2012 an employee of the organization was on parental leave. She began work on August 13, 2012. Therefore, from January to July 2012, she was not paid any wages. And when the payment of income, for example, in connection with parental leave, is completely stopped (January - July 2012), then the deduction for children for this period is not provided, since the tax base after the termination of payments is not determined. The difference between the first and this situation is that here the tax base is not determined from the beginning of the calendar year.

So in the Letters of the Ministry of Finance under consideration there are two different situations to be decided on the basis of specific circumstances.

And by the way, we are talking about very small amounts of personal income tax per month - 182 rubles. with the deduction of 1400 rubles. (1400 rubles x 13%) and 390 rubles. with the deduction of 3000 rubles. (3000 rubles x 13%)<4>. It is clear that, for example, 1274 rubles will run up in 7 months. and 2730 rubles. respectively. And most importantly, from whom they need to be kept - from a woman who has just returned from parental leave.

Although in fact these are clarifications from the "Don't ask unnecessary questions, don't get unnecessary answers" series. And as always, after such letters, questions arise: how do you still need to provide a deduction for the months when there was no income, and what to do? There are two ways here.

Note. To correct errors in the calculation of personal income tax, read: GK, 2012, N 11, p. 49

Path 1. Follow NC regulations. If you are a true-lover and are not afraid to ruin your relationship with the tax authorities, then, of course, be guided by the Tax Code, which directly states that a child deduction is provided<4>:

For each month of the calendar year<5>;

Only until the month in which the total income from the beginning of the year did not exceed 280,000 rubles.

There are no other restrictions. Moreover, the Supreme Arbitration Court clarified back in 2009 that the Tax Code does not contain rules prohibiting the provision of a child deduction for months in which employees had no income subject to personal income tax<6>. And if the inspectors, during the inspection, take the same position as the Ministry of Finance, and charge you additional personal income tax, fines and penalties<7>, you can refer to the norms of Ch. 23 of the Tax Code of the Russian Federation and the Resolution of the Supreme Arbitration Court. And claims should be removed from you, if not by your IFTS, then by a higher-ranking FTS. After all, the Federal Tax Service itself instructs inspectorates, when making decisions based on the results of inspections, to focus on sustainable judicial practice and, in particular, to the position of YOU<8>.

At the end of the year, the employee can try to apply for a personal income tax refund at the IFTS at the place of residence<9>. It is possible that its inspection will not take into account the position of the Ministry of Finance. Otherwise, the woman will either have to put up with the loss of her money, or argue in the Federal Tax Service, and maybe in court.

Path 2. Follow the instructions of the Ministry of Finance. That is, if you are one of those who are very cautious and do not want to quarrel with the tax authorities, then you can adopt the position of the Ministry of Finance. And provide the employee with a child deduction starting from the month of her return to work from parental leave. If you have already provided a deduction from the beginning of the year to the month of going to work, then recalculate, withhold personal income tax from the employee’s income and transfer it to the budget.