Income in kind for personal income tax purposes. When and how to withhold personal income tax from income in kind Calculation of income in kind

...in case of transfer of a gift (including in the form sums of money) to an employee under a gift agreement concluded in writing, the organization does not have an object subject to insurance premiums on the basis of Part 3 of Article 7 of Law N 212-FZ...

Labor Code Russian Federation dated December 30, 2001 N 197-FZ

Article 57. Contents of an employment contract...The following conditions are mandatory for inclusion in an employment contract:......terms of remuneration (including the amount of the tariff rate or salary (official salary) of the employee, additional payments, allowances and incentive payments)...

Federal Law No. 212 of July 24, 2009 “On INSURANCE CONTRIBUTIONS TO THE PENSION FUND OF THE RUSSIAN FEDERATION, SOCIAL INSURANCE FUND OF THE RUSSIAN FEDERATION, FEDERAL COMPULSORY HEALTH INSURANCE FUND AND TERRITORIAL OBLIGATION FUNDS SPECIAL MEDICAL INSURANCE"

Please note: moment personal income tax withholding and transfers to the budget depend on the form in which the gift was issued (Letter of the Federal Tax Service dated August 22, 2014 N SA-4-7/16692):

if a gift is given to an employee in cash, then the tax must be withheld and transferred to the budget on the day the gift amount is issued from the cash register or transferred to the employee’s personal account;
if the gift is given in kind, then personal income tax must be withheld and transferred on the next day of payment Money employee, for example, on the next payday wages. If, after the gift is given to the employee, no payments are made until the end calendar year, then the employer must no later than one month from the date of completion tax period(year) inform the employee in writing, and also tax authority at the place of registration about the impossibility of withholding personal income tax and the amount of tax not withheld.

1 tbsp. 7 of the Law of July 24, 2009 N 212-FZ). Especially if, in accordance with internal documents The organization receives gifts to those employees who have achieved certain production targets. This clearly indicates that the gift is given to the employee for his work.

However, despite all the solemnity of the moment, the presentation of gifts to employees from the point of view accounting – business transaction, which must be properly completed, reflected in accounting, and taxes and contributions calculated. We’ll look at how to do all this correctly and what an accountant should pay attention to in this article.

What is a gift? A gift to a gift is different. In order to correctly formalize the transfer of a gift to an employee, and then correctly calculate taxes and contributions from this operation, it is necessary to determine how this gift qualifies from the point of view of civil and labor legislation. 1. Gift not related to labor activity employee (for anniversaries and holidays, etc.).

the amount of each gift (including those not exceeding 4,000 rubles) is reflected in the certificate as income with code 2720;
the amount of the gift that is not subject to personal income tax (i.e. up to 4,000 rubles) is reflected in the certificate as a deduction with code 501.

Insurance premiums from the amounts of gifts to employees In order to determine whether insurance premiums are accrued from the amounts of gifts to employees or not, you need to clearly understand the nature of the payments these gifts relate to. According to Law No. 212-FZ, insurance premiums are levied on payments and other remuneration to employees within the framework of labor relations (Part 1 of Art.

Where to look for what is not subject to insurance premiums

In 2018, to understand what income is not subject to insurance premiums, you need to refer to Article 422 of the Tax Code. This article contains a closed list of positions. And this is important. Let us explain why. If you suddenly wonder what accruals are not subject to insurance contributions and in Art. 422 of the Tax Code of the Russian Federation did not find any mention of the corresponding amounts from your case, which means that contributions will still have to be calculated on them.

Please note that tax authorities extremely do not like broad interpretations of closed lists by the persons they check in their favor. So, be prepared to defend your position if you think that in your case the amounts are not subject to insurance premiums.

Let’s say right away that there have been no global changes regarding payments that are not subject to insurance premiums. Their composition is quite uniform across different companies and individual entrepreneurs, so they almost mirrored the transition from the Law on Insurance Contributions No. 212-FZ to the new Chapter 34 “Insurance Premiums” of the Tax Code of the Russian Federation.

Also see “New chapter on insurance contributions to the Tax Code of the Russian Federation since 2017.”

Taxation of gifts with personal income tax and insurance premiums

FAS SZO dated 02/20/2014 No. F07-184/14, FAS SZZ dated 05/08/2013 No. F04-1405/13) their cost is not taken into account when calculating the base for insurance premiums.

A complete list of what is not subject to insurance premiums

For convenience, we will show which payments are not subject to insurance premiums in 2018, in the form of a table.

Type of payment	Explanation
State federal, regional and local benefits	This includes unemployment benefits and other amounts required under compulsory social insurance.
All types of compensation from the state (within standards)	They may be related to: harm from damage to health; free provision of housing, payment for housing and communal services, food, fuel or their cash equivalent; issuing products or money in return; payment for some sports nutrition and other attributes for professional sports; dismissal (exception: a) compensation for unclaimed leave; b) severance pay and the average monthly salary is over 3 times the size (six times in the northern territories); c) compensation to the manager, his deputies and the chief accountant in excess of three times the average monthly salary); training, retraining and advanced training of personnel; costs of the contractor under a civil agreement; employment of those laid off due to layoffs, in connection with the reorganization or closure of an organization, individual entrepreneur, notary, lawyer, etc. fulfillment of work duties, including moving to another place (exception: money for negative labor factors), compensation for dairy products, for unclaimed leave (when not related to dismissal).
Disposable mat. help	people due to natural disasters or other emergencies for compensation for material damage or harm to their health, as well as victims of terrorist attacks in the Russian Federation; an employee whose family member has died; employees at the birth (adoption) of a child (including guardianship) in the first year. Limit: up to 50 tr. for each child.
Income of indigenous peoples from their traditional trade	Exception: wages
Amounts of insurance contributions	Includes: contributions for compulsory personnel insurance; contributions under voluntary agreements personal insurance employees with a period of 1 year for medical payment. expenses; contributions under medical contracts. services to employees for a period of 1 year with licensed honey. organizations; contributions under voluntary personal insurance contracts in the event of one’s death/or harm to health; pension contributions under non-state pension agreements.
Additional employer contributions to funded pension	Up to 12 tr. per year per employee
The cost of travel for workers from the northern territories to the place of vacation and back and baggage allowance up to 30 kg kilograms	If you are on vacation abroad, then the cost of travel or flights (incl. luggage up to 30 kg) is not taxed.
Payments from election commissions, referendum commissions, from election funds	To positions elected in the Russian Federation: from the President of the Russian Federation to the local level
Price uniforms and uniforms	Issued by force of law, as well as to civil servants. Free or with partial payment. Remains for personal use.
Cost of travel benefits	Established by law individual categories workers
Mat. assistance to employees	Up to 4000 rub. per person per billing period
Payment for employee training	For basic and additional professional educational programs
Amounts to employees to pay interest on loans and credits	This means that the loan was taken for the purchase and/or construction of housing
Cash allowance, provision of food and things	Applies to the military, police department, fire service, heads of federal courier communications, employees of the penal system, customs authorities
Payments and other remuneration under labor and civil law contracts (including author’s orders) in favor of foreigners, stateless persons temporarily staying in the Russian Federation	Exception: when such persons are recognized by Russian law insured

Note that in many of the cases listed above, an employment agreement or a civil law contract allows you to issue not only money, but also some kind of bonus. Which insurance premiums are not subject to will be clear from the type of contract (agreement) with the person. In other cases, there are no premiums that are not subject to insurance contributions.

Payments for business trips

Let's focus on excess daily allowances. These amounts remained the same in 2018: from 700 rubles. within Russia and from 2.5 thousand for foreign trips. But in 2018, contributions will have to be calculated for exceeding these values.

This is the rule for income tax This is also true for contributions from large daily allowances. Therefore, it is only a stretch to say about daily allowances that this is income not subject to insurance premiums.

For more information about this, see “How daily allowances are assessed in insurance premiums since 2017.”

Here’s something else that is not subject to insurance premiums and is directly related to business trips. These are the costs for:

the path to the destination and back;
airport taxes;
commissions;
way to the airport, train station (including transfers);
baggage transportation;
rental housing;
mobile communications;
fee for obtaining a foreign passport;
visa fees;
commission for currency exchange (check at the bank).

Similar rules on payments that are not subject to insurance premiums apply to members of the company's senior management bodies. When they come to a meeting of the board of directors, board, etc.

Civil contracts

In 2018, payments under civil law contracts, for the purchase of property or property rights. As, indeed, under lease, loan, leasing, donation and other agreements, under which property and property rights are transferred for temporary use. An exception is contracts for construction, paid services, as well as copyright agreements. Payments under these agreements are subject to contributions. This follows from paragraph 4 of Article 420 of the Tax Code.

Prizes, pensions and scholarships

Calculate insurance premiums when issuing prizes to customers, additional payments to pensions former employees, payment of stipends under student contracts (including for full-time employees) is not necessary.

Material benefit

There is no need to pay insurance premiums and material benefit, which arises for an employee due to savings on interest upon receipt interest-free loan from the employer.

Payments within the framework of labor relations

Let us repeat that Article 422 of the Tax Code of the Russian Federation establishes a closed list of payments that are exempt from insurance premiums in 2018. In particular, these are:

state benefits that are paid in accordance with the legislation of the Russian Federation (subclause 1, clause 1, article 422 of the Tax Code);
all types of compensation to employees determined by law within the limits established by the legislation of the Russian Federation. For example, severance pay within three times the average monthly salary (subclause 2, clause 1, article 422 of the Tax Code);
lump sum amount financial assistance parents, adoptive parents or guardians at the birth or adoption of a child. But only when such assistance is paid within the first year after birth or adoption and in an amount of no more than 50,000 rubles. for each child (subparagraph 3, paragraph 1, article 422 of the Tax Code);
contributions to compulsory insurance employees (subclause 5, clause 1, article 422 of the Tax Code);
employee training fees for basic and additional professional programs(if training is related to professional activity employee and is carried out at the initiative of the organization) (subparagraph 12, paragraph 1, article 422 of the Tax Code), etc.

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It is impossible to give a resigning employee a copy of SZV-M. According to the law on personal accounting, when dismissing an employee, the employer is obliged to give him copies of personalized reports (in particular, SZV-M and SZV-STAZH). However, these reporting forms are list-based, i.e. contain information about all employees. This means transferring a copy of such a report to one employee means disclosing the personal data of other employees.

Are gifts to employees subject to insurance premiums?

Some amounts that are not subject to insurance premiums are somewhat different from all of the above. They are obviously not included in the contribution base (see table below).

Second payment option medical services– through employees. That is hired employees are sent for a medical examination, pay for all procedures independently, and later submit an application to the employer for reimbursement of the funds spent, accompanied by supporting documents. Rostrud indicates that this method of payment is legal.

letter of the Ministry of Finance dated 02.02.2018 No. 03-04-06/6205;

letter of the Federal Tax Service dated 09/03/2018 No. BS-4-11/16963@.

There are court decisions on the imposition of insurance premiums for medical examinations, which indicate that there are no grounds for charging contributions and personal income tax for this type of compensation payment. The main argument in these resolutions is that a medical examination is a mandatory element of the labor relationship; its results are needed by the employer, and not by the employee himself.

Compensation for medical examination expenses, insurance premiums for which, in the opinion of regulatory authorities, should be accrued by the employer, is recognized by tax authorities as the amount of the employee’s income. IN written explanations The Federal Tax Service states that insurance premiums are not subject to compensation payments, which are listed in paragraphs. 2 p. 1 art. 422 of the Tax Code of the Russian Federation.

The Ministry of Finance insists that only the employer should pay for the medical examination directly, because The Labor Code does not provide for this form of compensation for workers. If the payment was made by the employee, and then the costs were compensated by the employer, these amounts should not be taken into account by the employer in the tax base for profits.

Thus, insurance premiums for a medical examination may not be charged only in the case where the employer himself directly paid for the services of the medical institution under the contract.

If the amounts reimbursed to employees for medical examinations paid for by them are repaid at the expense of retained earnings companies, personal income tax is not charged to them (clause 10 of article 217 of the Tax Code of the Russian Federation).

Article 9.

By general rule The object of taxation is payments and other remuneration accrued by companies in favor of individuals within the framework of labor relations and civil contracts, the subject of which is the performance of work, provision of services (Article 7 Federal Law dated July 24, 2009 No. 212-FZ (hereinafter referred to as Law No. 212-FZ)).

Accordingly, the amount of income from a valuable gift is fully subject to insurance premiums, including contributions for injuries. Insurance premiums As for insurance premiums for gifts given in honor of the holiday, according to the position of the Federal Antimonopoly Service of the North-Western and West Siberian districts (post of the Federal Antimonopoly Service of the North-Western Territory dated 20.02.

2014 No. Ф07-184/14, FAS ZSO dated 05/08/2013 No. Ф04-1405/13) their cost is not taken into account when calculating the base for insurance premiums. Download a sample gift agreement between an employer and an employee If gifts are given en masse, for example, to all employees by March 8, there is no need to conclude separate contracts with each employee.

In this case, it is advisable to draw up a multilateral gift agreement, in which each of the gift recipients will put his signature (Article 154 of the Civil Code of the Russian Federation). 2. A gift as a reward for work. The Labor Code of the Russian Federation provides for the right of an employer to reward its employees with valuable gifts as incentives for work (Article 191 of the Labor Code of the Russian Federation).

In this case, the cost of the gift acts as part of the salary, and the transfer of the gift occurs not on the basis of a gift agreement, but on the basis of an employment contract with the employee. Gifts given to employees as incentives for work are, in fact, production bonuses. The judges indicated that such transfers are carried out on the basis of civil transactions, the subject of which is the transfer of ownership.

It is not directly related to the performance of work duties by employees, is not an incentive or compensatory payment, and is of a one-time and optional nature. The cost of gifts is determined regardless of the employee’s length of service and the results of his work. Thus, when presenting a valuable gift to an employee in honor of a holiday, the company must formalize the gift agreement in writing.

In this case, when transferring a gift, she does not have an object subject to insurance premiums (Part 3 of Article 7 of Law No. 212-FZ; letters of the Ministry of Health and Social Development of Russia dated 08/12/2010 No. 2622-19, dated 05/19/2010 No. 1239-19, dated 05/07 .2010 No. 10-4/325233-19). Let us note that according to civil law (clause 2 of Art.

March 30, 2016taxation of gifts with personal income tax and insurance premiums

The taxation of gifts with insurance premiums and personal income tax is ambiguous. It all depends on the occasion for which a valuable gift is given to an employee. Personal income tax on gifts A valuable gift given to an employee is his income in kind and is subject to personal income tax.

and 4000 rubles) is illegal. Regarding the taxation of gifts with insurance contributions to the Pension Fund of Russia, the Social Insurance Fund and the Federal Compulsory Medical Insurance Fund of Russia, the situation is ambiguous.

Payment of wages is made in rubles. This is a reality of Russian reality, to which the vast majority of citizens engaged in labor activities on the basis of an appropriate contract are accustomed. Besides this rule prescribed in Article 131 Labor Code. However, in some cases, payments between the employer and employee may be made in alternative forms that are not directly related to real money. Thus, based on the terms of the employment contract, the employer has the right to pay the employee wages in kind, not in cash, within 20% of the amount of the established salary.

What taxes and fees must an employer pay on income paid in kind? Are insurance premiums the same integral part of these payments as in the case of regular wages?

Types of income in kind

First, let's figure out in what situations an employer can pay employees in non-monetary ways.

The most common example is payment for travel or lunch, provided for in an employment contract as part of the general salary. In such cases, a certain amount is allocated from the salary, which the employee does not receive in person, and it is used to pay directly by the employer for travel passes or lunches in a cafe or canteen. However, this part is also wages provided for in the employment agreement. According to a similar principle, an employment contract may provide for payment for employee training, rest, utilities, gym membership. Finally, the employer can pay the employee with the goods or services that he himself produces. There are no restrictions, other than the above-mentioned amount of 20% of the full salary, that is, the set of goods or services provided in kind instead of the monetary part of the salary can be very diverse - the main thing is that this is agreed upon in the employment contract between the employee and the employer.

Insurance premiums from income in kind

In such a situation, the amount of wages will include both cash and kind, which will mean that all wages paid will be subject to insurance contributions, both for income in kind and in cash.

Actually, until the end of 2016, this followed from paragraph 1 of Article 7 of Federal Law No. 212-FZ of July 24, 2009, which stated that the object of insurance premiums for employers are payments and other remuneration accrued in favor of individuals within the framework of labor relations . Since 2017, a similar rule has been prescribed for application in paragraph 1 of Article 420 of the Tax Code.

By the way, it applies not only to employment contracts, but also to civil contracts, copyright agreements, licensing agreements and agreements on the alienation of copyright, in short, to any agreements under which payment may be provided in kind.

"Natural" exceptions

However, let's return to the calculations for employment contracts. Within the framework of labor relations, there are a number of conditional income in kind, for which insurance premiums are not charged.

Thus, employers are exempt from having to pay social contributions, if we are talking about cases established by the legislation of the Russian Federation of free provision of housing to employees, payment of utilities, food, fuel, issuance of the required allowance in kind, payment of the cost of food, sports equipment, sports or dress uniforms to certain groups of workers. There is also no need to calculate contributions from the cost of travel for workers in the Far North to the place of vacation and back or from payment for professional training, retraining and advanced training of the employee. All cases for which this exception for the payment of insurance premiums applies are listed in Article 422 of the Tax Code.

Determining the amount of income in kind

When calculating insurance premiums from income in kind, the main problem comes down to its monetary definition - after all, it is from the final amount of income that the premiums themselves are calculated. Typically, an employer can accurately price a product or service that it will later pass on to the employee as part of compensation. At the same time, the 2017 edition of the Tax Code, namely Article 421, provides the main thesis for determining the cost of remuneration in kind necessary for calculating insurance premiums. In such a case, employers should focus on actual cost goods or services transferred to the employee, if it corresponds to the average market price.

At the same time, the amount of natural income includes provided for by law and VAT and excise taxes allocated as part of the price, but that part of the cost of goods or services that the employee paid independently is excluded. Do not forget that personal income tax is also paid on income in kind, and you must report on it

As a general rule, wages are paid in rubles (Article 131 of the Labor Code of the Russian Federation). The share of wages that is paid in kind should not exceed 20% of the accrued monthly wage. Other income in kind can be accrued without restrictions. Are income in kind subject to insurance premiums?

What is income in kind

Income in kind includes:

remuneration in kind;
payment for an individual for goods or services (for example, payment for training or food, recreation or utilities);
goods received by an individual, work performed in his interests or services provided free of charge or with partial payment.

Object of taxation of insurance premiums

The object of taxation of insurance premiums for organizations and individual entrepreneurs are payments and other remuneration accrued by them in favor of individuals within the framework of labor relations and civil contracts, the subject of which is the performance of work, the provision of services (Clause 1 of Article 7 of the Federal Law of July 24. 2009 No. 212-FZ).

Thus, if income in kind is accrued within the framework of the above agreements, it is necessary to subject such payments to insurance premiums.

If income in kind is accrued on other grounds, insurance premiums are not charged.

For example, if food or utilities are paid for by the employee, insurance premiums are assessed. And if, for example, payment for rest or training is made to a former employee or a person not connected with the party paying the income, an employment or civil contract, insurance premiums do not need to be charged.

Moreover, it is specifically stated that payments and other remunerations made within the framework of civil contracts, the subject of which is the transfer of ownership of property, or contracts related to the transfer of property for use, are not subject to insurance premiums, with the exception of certain contracts (clause 3, Article 7 of the Federal Law of July 24, 2009 No. 212-FZ). This means that income received on the basis of contracts for the donation of property or its gratuitous use is not subject to insurance premiums (Letter of the Ministry of Labor dated September 22, 2015 No. 17-3/B-473).

Non-taxable income in kind

When deciding whether to tax income in kind with insurance premiums, you need to keep in mind that individual species Non-monetary income is not subject to contributions. Such income, in particular, includes (Article 9 of the Federal Law of July 24, 2009 No. 212-FZ):

compensation payments established by law (for example, in the form of free provision of residential premises by virtue of the law, payment for utilities and food);
the cost of travel for “northerners” to the vacation destination and back;
the cost of uniforms and uniforms issued to employees in accordance with the law;
amounts of tuition fees for employees in basic and additional professional educational programs.

How to determine the amount of income in kind

If income in kind is subject to insurance premiums, it is necessary to determine the basis for calculating contributions in respect of such income. It is defined as the cost of goods or services established by the contract on the day of their payment, taking into account VAT and excise tax. At government regulation prices for such goods or services are based on state regulated retail prices (

The procedure for taxation of income paid in kind is established by Article 211 of the Tax Code of the Russian Federation. Such income, in particular, includes:

the cost of goods (work, services, property rights) fully or partially paid by the organization for an employee in his interests. For example, the cost of free meals or training not provided for by law (subclause 1, clause 2, article 211 of the Tax Code of the Russian Federation);
the cost of goods (work, services) provided to an employee free of charge or with partial payment. For example, the cost of gifts, gift certificates or gift cards, exceeding 4000 rubles. per year (subparagraph 2, paragraph 2, article 211, subparagraph 28, article 217 of the Tax Code of the Russian Federation, letters of the Ministry of Finance of Russia dated July 2, 2012 No. 03-04-05/9-809, dated April 4, 2011 No. 03 -03-06/1/207);
the cost of goods (work, services) issued as payment for labor (subclause 3, clause 2, article 211 of the Tax Code of the Russian Federation).

The cost of goods (work, services) that an organization pays for an employee in its own interests is not subject to taxation if the receipt of these goods (work, services) by the employee is directly related to the performance of his job duties. This follows from the provisions of paragraph 11 of paragraph 3 of Article 217 of the Tax Code of the Russian Federation. For example, payment of bills from restaurants, visits to which is included in the program of entertainment events accompanying business negotiations conducted by the organization, is not subject to personal income tax. The basis for exempting such income from personal income tax may be an order to conduct such events and a list of employees who must take part in them. This was stated in the letter of the Ministry of Finance of Russia dated March 3, 2015 No. 03-04-06/11078.

Personal income tax calculation

Personal income tax must be calculated on the last day of the month based on the results of all income received by the employee for this period (clause 3 of Article 226 of the Tax Code of the Russian Federation). The form of payment of income does not matter. Therefore, withhold tax on income received by an employee in kind on a general basis (clause 1 of Article 210 of the Tax Code of the Russian Federation). Wherein tax base in certificate 2-NDFL is the cost of transferred goods (work, services, other property), which is determined in the manner prescribed by Article 105.3 of the Tax Code of the Russian Federation. Such rules are established by paragraph 1 of Article 211 of the Tax Code of the Russian Federation.

When determining tax base exclude from it the employee’s partial payment for goods (work, services) (paragraph 2, paragraph 1, article 211 of the Tax Code of the Russian Federation).

Withholding personal income tax

Withhold personal income tax on income paid in kind from any monetary remuneration paid to the employee. In this case, the withheld tax amount cannot exceed 50 percent of the remuneration amount. Such conditions for withholding personal income tax are established in paragraph 4 of Article 226 of the Tax Code of the Russian Federation.

Situation: is it necessary to withhold personal income tax from the cost of services? gym(swimming pool) used by employees? The organization pays for the rent of the gym (swimming pool) using the profit remaining after taxes.

Answer: yes, it is necessary.

Object personal income tax taxes is the employee’s income (Article 209 of the Tax Code of the Russian Federation). When paying for the services of a gym (swimming pool), income is recognized as economic benefit received in kind (clause 1 of Article 210, subclause 1 of clause 2 of Article 211 of the Tax Code of the Russian Federation). Consequently, the cost of such services is employee income received in kind and is subject to personal income tax. Retention responsibilities and personal income tax payment to the budget in in this case must be performed by a tax agent, that is, an organization (clause 1 of Article 230 of the Tax Code of the Russian Federation). At the same time, the organization must ensure individual accounting of all employee income, including that received by them in the form of payment for the services of the gym (swimming pool).

For example, you can determine the amount of income of each employee based on total cost rental of a gym (swimming pool) and the number of employees visiting it. In this case, the number of employees must be documented, for example, by drawing up a list of visits, which should be familiarized with them under signature. The Russian Ministry of Finance recommended doing the same when determining the income of each employee received in the form of free meals (letter of the Russian Ministry of Finance dated June 19, 2007 No. 03-11-04/2/167).

You can also organize a record of visits to the gym (swimming pool) using coupons. To do this, you should appoint a person in charge who will issue coupons for a certain time to each employee against his signature in a special statement. The cost of services provided using a coupon can be determined based on the total cost of rent and the total time of visits to the gym (swimming pool). Subsequently, the statements are transferred to the accounting department, and at the end of each month the cost of services provided is included in total income employee.

Advice: there are arguments that make it possible not to include in an employee’s income the cost of services of a gym (swimming pool) and not to deduct from this personal income tax amounts. They are as follows.

Personal income tax must be withheld from all income of a citizen paid to him both in cash and in kind (Article 209, paragraph 1 of Article 210 of the Tax Code of the Russian Federation). When paying for the services of a gym (swimming pool), income is recognized as economic benefit received in kind. To correctly calculate the tax, income must be assessed (Article 41 of the Tax Code of the Russian Federation). However, when paying for the rent of a gym (swimming pool), in which any employee can exercise, it is impossible to determine the amount of income received by each of them. In such a situation, personal income tax cannot be withheld. This point of view is confirmed by decisions of the FAS of the Volga region dated October 13, 2005 No. A57-2297/05-5, of the Moscow District dated May 20, 2002 No. KA-A40/3028-02 and paragraph 8 of the appendix to the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated June 21, 1999 No. 42.

Situation: is it necessary to withhold personal income tax from employees when organizing a festive corporate event??

If the organization does not have the opportunity to personalize the economic benefit and determine the amount of income received by each employee, personal income tax does not need to be withheld.

The object of personal income tax taxation is the employee’s income (Article 209 of the Tax Code of the Russian Federation). When organizing corporate events, economic benefits received by an employee in kind can be recognized as income. In order to correctly calculate the tax, income must be assessed (Article 41 of the Tax Code of the Russian Federation) and documented receipt of it by a specific employee (subclause 2, paragraph 1, Article 223 of the Tax Code of the Russian Federation).

If the benefit of the employee is obvious, then the organization must fulfill the duties of a tax agent provided for in paragraph 1 of Article 230 of the Tax Code of the Russian Federation and ensure individual accounting of all employee income. Including those received by them in kind during a corporate holiday (see, for example, letters of the Ministry of Finance of Russia dated August 14, 2013 No. 03-04-06/33039, dated April 3, 2013 No. 03-04-05/6 -333, dated April 15, 2008 No. 03-04-06-01/86, Federal Tax Service of Russia for Moscow dated December 22, 2006 No. 21-11/113019, dated July 27, 2007 No. 28-11/ 071808). In a similar situation related to providing employees with free food, the Russian Ministry of Finance recommends tax agents determine the amount of income of each employee based on the total cost of food and time sheets (see, for example, letter of the Ministry of Finance of Russia dated June 19, 2007 No. 03-11-04/2/167).

However, in practice, when holding corporate events, it is very difficult to establish exactly how much income was received by each employee. Therefore, in the situation under consideration, this method is not applicable. The fact is that holding a corporate holiday includes not only food for employees, but also entertainment events (for example, a concert program, watching a movie, etc.). By participating in these events, employees also receive income in kind. Therefore, to calculate personal income tax, it is necessary to take into account not only the costs of the holiday, but also the degree of participation of each employee in it.

If an organization does not have the ability to personify economic benefits and determine the amount of income received by each employee, it will have no basis for calculating and withholding personal income tax. This, in particular, is stated in letters of the Ministry of Finance of Russia dated August 14, 2013 No. 03-04-06/33039, dated April 3, 2013 No. 03-04-05/6-333, dated May 13, 2011 No. 03-04-06/6-107 and dated April 15, 2008 No. 03-04-06-01/86. The same position is reflected in paragraph 8 newsletter Supreme Arbitration Court of the Russian Federation dated June 21, 1999 No. 42. And although it also concerned income tax, the conclusions of this letter have not lost their relevance even now. This is confirmed by later arbitration practice (see, for example, decisions of the FAS Moscow District dated September 23, 2009 No. KA-A40/8528-09, Northwestern District dated November 1, 2006 No. A56-2227/2006, West -Siberian District dated March 1, 2006 No. F04-685/2006(20075-A45-6), Volga District dated November 16, 2006 No. A12-4773/06-C36, Ural District dated May 11, 2004 No. F09 -1773/04-AK). When making decisions to refuse additional personal income tax assessment, judges explain that the receipt of income from participation in corporate events by each individual employee must be proven tax office(clause 6 of article 108 of the Tax Code of the Russian Federation).

Situation: is it necessary to withhold personal income tax from the amounts with which the organization own funds compensates the employee’s expenses for maintaining a child in kindergarten?

The answer to this question depends on the way in which the organization compensates the employee’s expenses for maintaining a child in kindergarten.

In practice, two options are possible:

– the organization pays certain amounts directly to the employee;

– the organization pays for the child’s maintenance under an agreement concluded with the kindergarten.

In the first case, personal income tax must be withheld from income paid to the employee. The fact is that compensation for part of parental pay, provided for in paragraph 7 of Article 65 of the Law of December 29, 2012 No. 273-FZ, is exempt from taxation only if the source of this compensation is funds regional budgets. This follows from the provisions of paragraph 42 of Article 217 of the Tax Code of the Russian Federation. Compensation paid to parents by their employers does not fall under this standard. Consequently, the amounts of such compensation are subject to personal income tax.

In the second case, an employee whose children are kept in kindergarten at the expense of the employing organization receives income in kind. The taxation of this income depends on what services the organization pays for.

Invoices for payment for kindergarten services may separately indicate:

– cost of educational services;

– the cost of childcare and childcare services.

If an organization pays for educational services, then in relation to these amounts the employee has the right to the benefit provided for in paragraph 21 of Article 217 of the Tax Code of the Russian Federation. But only if the kindergarten implements the basic general education program of preschool education.

If the organization pays for childcare services, tax benefits the employee does not have. Personal income tax must be withheld from these amounts on a general basis.

If the cost of various services is not divided in the kindergarten accounts, personal income tax must be withheld from the entire amount of payment that the employing organization transfers to the preschool institution.

Similar clarifications are contained in letters of the Ministry of Finance of Russia dated February 27, 2015 No. 03-04-06/9977 and No. 03-04-05/9979.

Situation: is it necessary to withhold personal income tax from bank commission, which the organization pays for a non-cash transfer of a loan issued to an employee or for withdrawing these amounts in cash?

Answer: yes, it is necessary.

In this situation, income is recognized as the commission that the organization pays to the bank for the service of transferring the loan amount to the employee’s account or for issuing these amounts in cash. The costs of paying the commission are not related to the activities of the organization. The organization bears them in the interests of its employee. Therefore, the amount of the commission must be included in the employee’s income subject to personal income tax.

Similar clarifications are contained in the letter of the Ministry of Finance of Russia dated November 25, 2008 No. 03-04-06-01/351.

Situation: is it necessary to withhold personal income tax from the bank commission, which the organization pays when transferring dividends (profit shares) by wire transfer to the founders or for issuing these amounts in cash?

Official explanations from regulatory agencies on this issue are ambiguous.

The object of personal income tax is the citizen’s income received in the form of economic benefits in cash or in kind (Articles 41, 209 of the Tax Code of the Russian Federation). Income paid in kind includes, in particular, payment by an organization for services provided in the interests of citizens (subclause 1, clause 2, article 211 of the Tax Code of the Russian Federation).

According to the Russian Ministry of Finance, in the situation under consideration, such income is the commission that the organization pays to the bank for the service of transferring dividends to the accounts of the founders or for issuing these amounts in cash. Representatives of the financial department believe that the organization bears these expenses in the interests of the founders. Consequently, she is obliged to include the amount of the commission in their income subject to personal income tax (letter dated November 25, 2008 No. 03-04-06-01/351).

However, the letter of the Federal Tax Service of Russia dated September 15, 2010 No. ШС-37-3/11236 reflects a different point of view. According to representatives of the tax department, payment by an organization of such a commission does not lead to the formation of income in kind, subject to personal income tax. This position is based on the provisions of paragraph 2 of Article 29 of the Law of February 8, 1998 No. 14-FZ and paragraph 1 of Article 42 of the Law of December 26, 1995 No. 208-FZ. According to these norms, the organization is obliged to ensure that the founders receive the dividends due to them in any way that does not contradict the law. For example, by transferring dividends to the bank accounts of the founders. And since the bank’s services for transferring dividends are provided to the organization itself and in its interests, it is unlawful to include the cost of these services in the income of the founders. This conclusion confirms arbitrage practice(see, for example, resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated November 8, 2010 No. A43-2399/2010).

A comprehensive explanation of the term “income in kind” (not cash income) is contained in the Labor and Tax Code of the Russian Federation. So, as Art. 131 of the Labor Code of the Russian Federation, it is allowed to pay wages to working citizens not only in cash equivalent - in rubles (permissible in foreign currency), but not in monetary form either. In the latter case, the following conditions must be met:

The presence of mutual consent of the parties (employer and employee) on the payment of wages in kind, fixed in the contract.
The share of salary in non-cash form should not exceed established limit- 20% of monthly earnings.

Income in another form that does not contradict the law may be accrued without applying limits. Thus, to non-cash income, as evidenced by Art. 211 of the Tax Code of the Russian Federation, include:

payment by an organization (or individual entrepreneur) for an employee for goods (specific services, work), including his training, rest, food, etc. in accordance with this article;
payment in kind for work performed by the employee;
goods received by the employee;
works performed in his favor;
services provided to an employee free of charge or with partial payment.

In fact, from all income in kind referred to in the relevant applicable legal acts, withhold mandatory insurance premiums. Withholding and payment of dues off-budget funds produced in general, i.e. through the employer (the policyholder).

Example 1. Non-monetary income of a sewing studio employee

L. T. Sidorenko works as a seamstress in the Beloshveyka atelier. Over the past September 2020, the employer made payments to her partially in non-monetary form. The possibility of remuneration in kind is stipulated in the employment agreement concluded by L. T. Sidorenko with the director of the Beloshveyka atelier.

So, L. T. Sidorenko was given 5 T-shirts and 5 shirts towards September earnings. In value terms, this non-cash income amounted to 20% of the employee’s actual salary for September 2020.

When general mandatory contributions are withheld from income in kind

As is customary, the necessary taxes and fees are collected from the “salary” payments made by the employer to its employees. Thus, if income is “paid” within the framework of labor and civil law agreements, then, accordingly, mandatory contributions are withheld from it.

However, not all non-cash income of individuals is subject to such deductions. Remunerations that are recognized as the object of taxation specifically for general compulsory contributions are indicated Tax Code RF.

What does the subject of contribution include?

Income of citizens not subject to general compulsory contributions

Salary according to the employment agreement;

remuneration under alienation agreements for the result of intellectual activity and other agreements specified in Art. 420 Tax Code of the Russian Federation

State benefits, including unemployment and compulsory social insurance;

compensation payments provided for by law, and clause 2 of Art. 422 Tax Code of the Russian Federation;

one-time financial assistance to victims of emergency situations(natural disasters, etc.), as well as at the birth, adoption of a child (or establishment of guardianship) and in the event of the death of a family member;

scholarships, inheritance;

profit received from the sale of personal property (if owned for more than 3 years);

value expression uniforms, uniforms and benefits provided to employees;

financial assistance no more than 4,000 rubles. per employee for the billing period;

amounts of payments (contributions) for voluntary personal annual insurance, as well as medical services, etc. in accordance with the article of the Tax Code of the Russian Federation

So, most non-monetary income, with some exceptions, may be subject to mandatory contributions. At the same time, the basis for calculating fees (in relation to Article 421 of the Tax Code of the Russian Federation) is defined as the cost of such income, equivalent to the market average. Prices are determined in accordance with the provisions of Art. 105.3 Tax Code of the Russian Federation. In other words, this is the cost of the product (service, work) on the date of payment, taking into account VAT and excise tax (for excisable goods).

It is noteworthy that the profit on which tax is not calculated is, in fact, non-taxable income in kind. As a rule, this is income received under a gift agreement (free use).

Example 2. Date of actual receipt of non-monetary income by a full-time employee of the company (payment day)

Vasilek LLC pays for its employee S.N. Smirnova for off-the-job training. Payments made in the interests of the employee are considered income in kind. Real income is considered received on the date of debiting funds from the account, deducted as payment for the studies of S. N. Smirnova.

Withholding of general mandatory contributions from gifts to employees

Gifts intended for employees can be different (monetary and non-monetary). It depends on the qualifications of this gift and how it is decorated and transferred to the recipient whether contributions need to be withheld from its value or not.

Conditional classification of a gift

The procedure for its registration

Withholding of mandatory contributions

A gift not related to the work activity of the recipient

(not compensation, does not depend on the employee’s work and length of service)

Transferred to the donee free of charge under a gift agreement

(in writing)

The corresponding taxes and contributions are withheld when the donor is an individual and the price of the gift is more than 3,000 rubles.

Gift - encouragement for work

(in relation to Article 191 of the Labor Code of the Russian Federation)

Equated to partial remuneration, the actual transfer of such a gift is made within the framework of the employment agreement

The necessary fees are collected from the value of the gift (equated to the amount of profit)

Withholding of mandatory contributions (compulsory pension insurance, compulsory medical insurance, compulsory social insurance) from gifts, where necessary, is carried out as follows. The amount of contributions (tax) is withheld from a cash gift when the money is given to the recipient employee from the cash register or transferred to his account (card).

If the gift is provided in kind, then contributions (taxes) are deducted from its value on the next payment day. This could be, for example, the day a salary is paid to the recipient employee. When to pay out in a specific billing period is not expected, fees from this gift are deducted upon its completion, in the month following it.

Postings regarding the deduction of mandatory contributions from the income of the donee employee

As is customary for general case, compulsory insurance premiums are taken into account using an account. 69: for credit - accrual, and for debit - payment. Subaccounts are added to it depending on the specific type of insurance. Thus, the accounting department records the calculation of mandatory contributions as follows:

DT 20 (25...) KT 69-1 - VNiM.
DT 20 (25, 26, 44) KT 69-2 - PFR
DT 20 (25…) KT 69-3 - Compulsory medical insurance
DT 20 ... KT 69-11 - for injuries.

The actual payment of mandatory contributions is reflected by the following entries:

DT 69-1 KT 51(50) - VNiM.
DT 69-2 CT 51 (50) -PFR.
DT 69-3 CT 51 (50) - Compulsory medical insurance.
DT 69.11 CT 51 (50) – for injuries.

For your information, non-payment (partial payment) of contributions due to an understatement of the base for their calculation or due to accounting errors is punishable by fines and penalties (Article 122 of the Tax Code of the Russian Federation). In especially serious cases (evasion of payment, failure to submit reports, submission of false information) criminal liability(under Articles 198, 199 of the Criminal Code of the Russian Federation).

Common mistakes when withholding mandatory contributions

Error 1. Compensation payment Employees' meals are not subject to general mandatory contributions. This norm exists and is justified as follows.

Material benefits that an employer provides to its employees (including free food) are not considered remuneration for work. Simply put, they are in no way connected with the performance of workers’ duties. Accordingly, their value expression is not subject to general compulsory contributions.

Error 2. The cost of bottled water consumed by them in the organization should not be included in the in-kind income of employees.

Rationale: the employer is obliged to create appropriate working conditions for his employees. This norm is enshrined in the collective agreement. Therefore, the expenses of the organization that went to pay for bottled water are expenses to provide the necessary working conditions.

Error 3. An employer must adhere to a certain procedure when purchasing gifts for his employees. The following actions of the employer are considered correct.

Necessary: be sure to conclude a purchase and sale agreement, draw up an estimate of expenses incurred, issue an order (indicating the scope responsible persons for issuing gifts, as well as their cost and delivery time).

The very fact of the acquisition of all gifts, i.e. their purchase, must be documented, for example, using a standard invoice or an appropriate acceptance certificate.