For what reason may the FSS of Russia refuse compensation?
Employees of the Federal Social Insurance Fund of Russia have the right to refuse to reimburse an organization for the costs of benefits. This is possible if the benefit is paid:
- in violation of the legislation on compulsory social insurance in case of temporary disability and in connection with maternity. For example, the organization violated the procedure for accruing (calculating) benefits;
- without supporting documents. For example, without a sick leave certificate, a child’s birth certificate, etc.;
- on the basis of documents that were incorrectly executed or issued in violation of the established procedure. For example, the medical organization that issued the sick leave does not have a license (clause 2 of the Procedure approved by order of the Ministry of Health and Social Development of Russia dated June 29, 2011 No. 624n).
This follows from paragraph 4 of part 1 of article 4.2, part 4 of article 4.6 and part 4 of article 4.7 of the Law of December 29, 2006 No. 255-FZ.
In addition, the Federal Social Insurance Fund of Russia will refuse to allocate funds for the payment of benefits if the money in the organization’s bank accounts is not enough to satisfy all the requirements presented to them (Part 3.1, Article 4.6 of the Law of December 29, 2006 No. 255-FZ).
That is, if, after studying the documents submitted by the organization, the territorial branch finds out that the balance in the account is not enough to pay off all the claims made against it in order of priority, it will not transfer the money for the payment of benefits.
Situation: can the Federal Social Insurance Fund of Russia refuse to reimburse maternity benefits on the grounds that the employee does not have the necessary qualifications to work in her specialty?
Yes, it can, if the FSS of Russia manages to prove the fictitiousness of the labor relationship.
As a general rule, the Russian Federal Social Insurance Fund may refuse to reimburse benefits if they were accrued in violation of the law. During the audit, fund employees have the right to check any documents related to the accrual of payments to the fund, as well as confirming expenses incurred by organizations for the purposes of compulsory social insurance (including expenses for the payment of maternity benefits).
This procedure follows from Part 7 of Article 34, Part 22 of Article 35 and Article 37 of the Law of July 24, 2009 No. 212-FZ, Part 4 of Article 4.6 and Part 4 of Article 4.7 of the Law of December 29, 2006 No. 255-FZ.
The legislation does not contain specific lists of documents to be verified, as well as grounds for refusal to reimburse maternity benefits.
Employees of the Federal Social Insurance Fund of Russia may refuse to reimburse an organization for benefits if there are circumstances that indicate the deliberate creation of an artificial situation for the purpose of unlawfully receiving funds from the fund (inflating the amount of benefits). The practice of inspections shows that one of these grounds may be the employee’s lack of necessary qualifications to work in her position (that is, the woman was hired not to actually perform her job functions, but only to receive maternity benefits).
Arbitration courts confirm the legality of the actions of the FSS of Russia in such situations if, in addition to the insufficient qualifications of the employee, there are other facts that together indicate the fictitious nature of the labor relationship and employment only for the purpose of receiving benefits. Such facts may be family relationships with the head of the employing organization, an unreasonably inflated salary, hiring shortly before maternity leave, etc. (see, for example, the ruling of the Supreme Court of the Russian Federation dated October 26, 2015 No. 304-KG15 -13356, resolution of the Arbitration Court of the West Siberian District dated July 3, 2015 No. F04-21153/2015, East Siberian District dated September 18, 2014 No. A19-16413/2013, FAS Ural District dated June 16, 2011 No. F09-3014/11-S2).
At the same time, the inspectors’ conclusion that the employee does not have sufficient qualifications to work in her position cannot in itself be grounds for refusing compensation for benefits. To win a case in court, employees of the FSS of Russia must provide irrefutable evidence that the level of education and work experience of this specialist really does not allow him to perform the assigned work. And if the inspectors’ arguments do not convince the judges, the organization will be able to defend its right to reimbursement of benefits. But for this it is necessary to submit to the court documents confirming:
- the existence of actual labor relations between the employee and the employing organization (including an employment contract, time sheets, pay slips);
- actual performance of the employee’s job duties;
- the need and justification for hiring this specialist;
- the fact of the occurrence of an insured event and the payment of maternity benefits (including a correctly executed sick leave certificate).
There are examples from arbitration practice that confirm the right of organizations to reimbursement of benefits from the FSS of Russia in similar situations (see, for example, the ruling of the Supreme Arbitration Court of the Russian Federation dated November 1, 2013 No. VAS-11916/13, the resolution of the FAS of the East Siberian District dated July 11 2013 No. A33-19621/2011, West Siberian District dated September 26, 2011 No. A27-17239/2010, Ural District dated September 14, 2011 No. F09-5130/11).
Why didn’t the FSS accept benefits for credit?
Expenses for paying for certificates of incapacity for work, maternity and child benefits, as well as other measures of social support for employees are compensated by the employer from the Social Insurance Fund: either social payments are counted towards contributions for temporary disability and maternity (VNiM), or are reimbursed to the policyholder's bank account.
To accept social expenses for offset or reimbursement, the Social Insurance Fund must check them. According to sub. 4 paragraphs 1 art. 4.2 and clause 4 of Art. 4.7 of the Law “On Compulsory Social Insurance in Case of VNiM” dated December 29, 2006 No. 255-FZ, social insurance has the right not to count the costs of paying state social insurance benefits if they are incurred:
- on the basis of documents that were incorrectly executed or issued in violation of the law;
- in violation of the legislation of the Russian Federation on social insurance;
- no supporting documents at all.
See also: “Could the FSS refuse to reimburse benefits if an employee quits and the company does not have a copy of his employment record?”
The FSS may accuse the organization of creating artificial conditions for reimbursement or offset of budget funds. We have examined such cases in this article.
The FSS also refuses compensation or credit if it believes that the sick leave is fake.
How an accountant should act if he suspects that the certificate of incapacity for work is fake, read here.
Is it possible to confirm the legality of expenses with other documents if the Social Insurance Fund did not accept expenses for paying for certificates of incapacity for work due to their loss? You can find the answer to this question in ConsultantPlus. Get trial access to the system for free and proceed to expert explanations.
So, the FSS has the authority to refuse to offset or reimburse social benefits to the policyholder. In this case, the organization can either argue with the fund in court or agree with the government agency. If it was not possible to reimburse social payments, then the accountant will have to make a number of adjustments to the accounting and reporting of expenses not accepted by the fund.
What to do if you have received a refusal from the FSS of Russia
The territorial branch of the FSS of Russia will inform you in a reasoned decision that your organization has been denied reimbursement of expenses. Fund employees will send such a document to you within three working days from the date the decision was made (Part 5, Article 4.6 of the Law of December 29, 2006 No. 255-FZ). The form of such a decision was approved by order of the Ministry of Health and Social Development of Russia dated December 23, 2009 No. 1014n. If you do not agree with the fund’s decision, you can appeal it to the regional branch of the FSS of Russia or in court (Part 6, Article 4.6 of the Law of December 29, 2006 No. 255-FZ).
If there are no objections on your part, then you can follow one of the following paths:
- ask the employee to voluntarily return the overpayment (to the cash desk or to the organization’s bank account);
- withhold money from the salary with the consent of the employee;
- recover the overpayment through the court.
In addition, the employer may not withhold (collect) from the employee an erroneously paid benefit or what was given to him in excess of what was due (Article 240 of the Labor Code of the Russian Federation). Then, in accounting, include the costs of such payments as other expenses. But in tax accounting, do not take into account amounts erroneously paid to an employee and not returned by him (not collected from him).
It is also possible that, by decision of the head of the organization, the employee is partially, and not fully, recovered. This is what Article 240 of the Labor Code of the Russian Federation allows. Then in accounting, include in other expenses only the part that could not be recovered from the employee. You will withhold the rest from the employee's salary.
Sample of filling out the DAM with compensation from the Social Insurance Fund
If more contributions are accrued than benefits paid, the difference is transferred to the Social Insurance Fund. If on the contrary, that is, the difference between contributions and benefits turns out to be a minus sign, then it is counted against future payments or returned from the Fund to the policyholder.
How to show compensation from the Social Insurance Fund in the RSV
The average number of employees of the organization was 12 people. One of the employees is A.V. Kukushkin. - works in difficult conditions related to list 2, approved by Resolution of the Cabinet of Ministers of the USSR of January 26, 1991 No. 10. Within three working days from the date of entry into force of the relevant decision (Part 4.1 of Article 4.6 of Federal Law of December 29, 2006 No. 255 -FZ). New certificate-calculation from 2021: form and sample The certificate will replace the 4-FSS calculation As you can see, in connection with the entry into force of Order of the Ministry of Labor of Russia dated October 28, 2016 No. 585n, from January 1, 2021 to FSS units as part of documents for reimbursement of expenses You will need to submit a new document: a certificate of payment. It will need to show various information about insurance premiums. This certificate will replace the previously submitted calculation in Form 4-FSS, which was required to receive compensation. Why do you need a certificate-calculation Why do officials from the Social Insurance Fund need a certificate-calculation starting from 2021? Let me explain.
The indicators of line 090 in the corresponding columns are defined as the difference between the calculated contributions reflected in line 060 of Appendix No. 2 and the expenses incurred for the payment of temporary disability benefits reflected in line 070 of Appendix No. 2, increased by the amount of the payer’s expenses reimbursed by the Social Insurance Fund reflected in the line 080.
Insurance premiums
Situation: is it necessary to charge insurance premiums for erroneously paid disability benefits (for pregnancy and childbirth, etc.) if the Federal Social Insurance Fund of Russia refused to reimburse the costs?
Yes, it is necessary if it was not possible to withhold the erroneously paid amounts from the employee or, by decision of management, they did not collect them.
In general, social insurance benefits are included in the list of payments not subject to insurance contributions (Article 9 of the Law of July 24, 2009 No. 212-FZ, Article 20.2 of the Law of July 24, 1998 No. 125-FZ). However, if during the inspection, specialists from the territorial branch of the FSS of Russia discovered that the benefit was paid with violations, and therefore did not accept it for credit, then the payment is considered accrued within the framework of labor relations. That is, it should be subject to insurance premiums on a general basis, as provided for in Part 1 of Art. 7 of the Law of July 24, 2009 No. 212-FZ and paragraph 1 of Article 20.1 of the Law of July 24, 1998 No. 125-FZ.
But here it also matters whether it was possible to recover the wrongfully paid benefits from the employee. If yes, then there is no need to charge contributions. After all, the money was returned, which means that there was no payment as such in the end. And therefore there is no object of taxation with insurance premiums. It does not matter whether the employee returned the money voluntarily or whether the organization forcibly collected it from him.
Was it not possible to withhold the erroneously paid amounts from the employee or, by decision of management, did they not begin to collect them? Then there is a fact of payment. Accordingly, insurance premiums will have to be calculated.
Such clarifications are in letters of the Ministry of Labor of Russia dated September 3, 2014 No. 17-3/OOG-732, Ministry of Health and Social Development of Russia dated August 30, 2011 No. 3035-19.
Advice: if you are ready to argue with the inspectors, then you do not have to charge insurance premiums on the amounts of benefits not accepted by the Federal Social Insurance Fund of Russia for offset, even if the employee has not returned the money. The following arguments will help you.
When the territorial branches of the FSS of Russia do not accept benefits accrued by the organization, the social orientation of these payments remains the same. Typically, the fund’s refusal to compensate expenses means that the policyholder paid benefits based on incorrectly executed documents. And if the employee was really sick or injured, then the benefit retains its character of material support in case of loss of ability to work. Benefits are not related to wages, are not incentive payments and are not provided for in employment contracts. Therefore, regardless of their reimbursement from the budget of the Social Insurance Fund of Russia, such payments are subject to paragraph 1 of part 1 of Article 9 of the Law of July 24, 2009 No. 212-FZ and subparagraph 1 of paragraph 1 of Article 20.2 of the Law of July 24, 1998 No. 125-FZ. This means that insurance premiums are not assessed. The legality of this approach is confirmed by judges (see, for example, the ruling of the Supreme Court of the Russian Federation dated November 23, 2015 No. 304-KG15-14441, the resolution of the Arbitration Court of the West Siberian District dated July 10, 2015 No. F04-20221/2015, FAS Ural District dated May 8, 2014 No. F09-2608/14).
Regardless of whether the employee returned the benefit or not, the organization will have arrears in insurance premiums. After all, the amount of expenses accepted for deduction when calculating the monthly payment to the Federal Social Insurance Fund of Russia was overestimated. The specialists of the territorial branch of the fund will send a request for compensation for such arrears to the organization along with a decision that the costs of paying insurance coverage are not accepted for offset. The request will indicate the amount and repayment period of the arrears (Parts 4 and 5 of Article 4.7 of the Law of December 29, 2006 No. 255-FZ). The organization is obliged to fulfill it in a timely manner (clause 5, part 2, article 4.1 of the Law of December 29, 2006 No. 255-FZ).
Situation: is it possible to fine an organization for non-payment (not full payment) of insurance premiums if the Federal Social Insurance Fund of Russia refused to reimburse the social benefits paid to the employee?
Yes, it is possible if such arrears arose due to unlawful actions of the organization. In particular, these are:
- incorrect definition of insurance period;
- errors in calculating benefits;
- payment of benefits in the absence of documents confirming the employee’s right to it, etc.
Is the refusal to reimburse benefits due to the employee’s unlawful actions (for example, did he falsify documents)? Then there is no reason to fine the organization.
Such conclusions are in the letter of the Ministry of Health and Social Development of Russia dated August 30, 2011 No. 3035-19.
In addition, you will have to adjust the amount of previously accrued contributions and be sure to submit an updated calculation to the territorial branch of the FSS of Russia (Part 1, Article 17 of Law No. 212-FZ of July 24, 2009).
The official position: additional contributions need to be added.
Thus, in the Ruling of the Supreme Court of the Russian Federation dated 08/04/2020 No. 308-KG17-680, the enterprise’s complaint against the actions of the Social Insurance Fund to increase the base of insurance premiums for the payment of maternity benefits to external part-time workers was upheld only because they had worked at the enterprise for less than two years and it did not provide a certificate from the main place of employment of these employees stating that they were not paid such benefits. In relation to this situation, the fund’s refusal to accept for offset the costs of paying disputed benefits does not change their status - payments due to the occurrence of an insured event, that is, the status of insurance coverage. The indicated amounts retain their social orientation and do not constitute remuneration for the employee’s performance of labor functions. The Supreme Court of the Russian Federation relied on these conclusions in another judicial act (see Determination of August 11, 2020 No. 310-KG17-10343), then references to the August document appeared in decisions of district courts.
Personal income tax
Whether or not to withhold personal income tax from an erroneously paid benefit depends on the type of benefit and whether the employee returned the money (voluntarily or forcibly, it does not matter). Four options are possible.
Option 1: the employee returned or was charged erroneously paid sick leave benefits
Once an employee has returned an erroneously paid allowance to the organization, there is no income for personal income tax purposes. This means that such payments are not subject to personal income tax. This follows from the provisions of paragraph 1 of Article 209, paragraph 1 of Article 210 of the Tax Code of the Russian Federation.
But when paying sick leave benefits, you withheld personal income tax (clause 1 of Article 217 of the Tax Code of the Russian Federation). Therefore, as a result of the return, there will be an overpayment of tax in the amount previously withheld (clause 1 of Article 217, clause 1 of Article 209 of the Tax Code of the Russian Federation).
For information on how to return (offset) the overpayment that has arisen, see How to return an overpayment for personal income tax.
Option 2: the employee returned or was charged the benefit, which is fully financed by the Federal Social Insurance Fund of Russia
Benefits that are fully reimbursed by the fund (maternity benefits, child care benefits, etc.) are exempt from personal income tax (clause 1 of Article 217 of the Tax Code of the Russian Federation). Since personal income tax was not withheld when paying them, no tax adjustments will have to be made when returning such amounts.
Option 3: the employee did not return the sick leave benefit, and the organization did not collect from him
In this case everything is simple. When paying benefits, you have already withheld personal income tax. So the employee no longer has income in the sense of Article 41 of the Tax Code of the Russian Federation. Of course, there is no need to calculate additional taxes.
Option 4: the employee did not return the benefit, which was fully paid at the expense of the Russian Social Insurance Fund, and the organization did not collect the money
The fund refused to accept benefits that are not subject to personal income tax, for example, for pregnancy and childbirth, and the employee did not return it? This amount will already have to be included in the personal income tax base. After all, such a payment will no longer be considered a benefit. So the organization must fulfill the duties of a tax agent: calculate the tax, withhold it and transfer it to the budget.
Features of contestation
Challenging is possible only if the decision not to accept benefits was made on the basis of subjective reasons. That is, the service did not justify its decision. The claim must be submitted to the FSS itself. The application must state all the circumstances of the case and attach supporting documents.
Question: As a result of an error made when calculating maternity benefits, the organization paid the employee this benefit in the amount of 2,000 rubles. more than it should be. The FSS of the Russian Federation discovered this during a desk audit and did not accept expenses in the amount of 2,000 rubles. Later, on the day of payment of the annual bonus, the organization withheld personal income tax from this amount. How to fill out section 2 calculations according to form 6-NDFL? Does the tax authority have the right to hold an organization as a tax agent liable under Art. 123 of the Tax Code of the Russian Federation? View answer
Often a failure is carried out when there are errors in the certificate of incapacity for work. For example, these could be the following errors:
- Incorrect age statement.
- Abbreviated company name.
- There are empty cells on the sheet.
- There are quotation marks and commas.
- There are obvious typos.
What to do if you have these errors? It is recommended to ask the employee to bring a new certificate of incapacity for work.
Reflection of benefits that are not taken into account
If benefits have not been accepted, the accountant must act in accordance with this algorithm:
- The use of reversals in accounting for the amounts of benefits not accepted for offset.
- Writing off benefits as expenses or withholding them from the employee.
- Calculation from payments of insurance premiums.
- Calculation and deduction of personal income tax from an employee. The exception is benefits for temporary disability. If the FSS does not recognize expenses, they cease to be classified as expenses on which tax is not charged. That is, if the employee does not return the benefit, it begins to be considered his income. You need to withhold income tax from it.
- If an employee returns a payment on which income tax has already been paid, an overpayment is created. The employee must be told about the overpayment on the basis of paragraph 1 of Article 231 of the Tax Code. The overpayment is counted toward future personal income tax payments. It can also be returned to the employee’s account.
- Transfer of contributions and personal income tax to the state treasury.
- Determination of the amount of penalties for contributions and taxes. Where do penalties come from? During the period of recognition of expenses, arrears arise. Payments become taxable and the payment transfer date is standard.
- Changes in reporting. Corrective entries are made in both tax and accounting records.
That is, non-recognition of benefits involves a number of problems. The accountant must take appropriate measures.
How to correct an erroneous payment in accounting
If you do not intend to challenge the decision of the territorial branch of the fund in court, then all transactions related to the calculation and payment of such benefits will be erroneous. This means that such errors must be corrected in accounting and financial statements (clause 4 of PBU 22/2010). It does not matter whether the employee returned the overpayment or not. For information on how to make corrections in accounting, see How to correct errors in accounting and financial reporting.
Transfer the amount of hospital benefits (benefits related to the birth of a child), the reimbursement of expenses for which the Federal Social Insurance Fund of Russia refused, to account 73 “Settlements with personnel for other operations” (76 “Settlements with various debtors and creditors”, if the person has already quit):
Debit 73 (76) Credit 70
– the employee’s debt in the amount of the erroneously paid benefit (overpayment) was transferred.
A special situation with funeral benefits. There is no need to make any additional entries for the amount of the erroneously issued benefit (overpayment). The fact is that this benefit is initially taken into account in account 73 or 76. So continue to take into account the amount of the mistakenly paid funeral benefit (overpayment) in account 73 (76) until the money is returned or written off as expenses.
The organization withholds money from the employee: accounting
The amount of benefits overpaid can be withheld from the employee’s salary or subsequent benefit amounts in the following cases:
- the overpayment occurred as a result of a counting error. This is understood as an error made during arithmetic calculations (letter of Rostrud dated October 1, 2012 No. 1286-6-1, ruling of the Supreme Court of the Russian Federation dated January 20, 2012 No. 59-B11-17);
- dishonest actions of an employee (for example, he submitted documents with incorrect information or forged ones).
But first, get the written consent of the employee (letter from the Federal Social Insurance Fund of Russia dated August 20, 2007 No. 02-13/07-7922). At the same time, no more than 20 percent of the amount due to him can be withheld from the employee’s monthly salary (benefits). This is stated in Article 138 of the Labor Code of the Russian Federation, Part 4 of Article 15 of the Law of December 29, 2005 No. 255-FZ and Article 19 of the Law of May 19, 1995 No. 81-FZ.
When you make your next salary (benefits) payment, make an entry in your accounting records:
Debit 70 Credit 73 (76)
– the amount of erroneously paid benefits (overpayment) is withheld from the employee’s salary;
Debit 70 Credit 50 (51)
– the salary was issued from the cash register (the salary was transferred to the employee’s bank card) minus the withheld amount of the erroneously paid benefit (overpayment).
For more information about the cases and procedure for deductions from an employee’s salary, see How to make deductions from salaries at the initiative of the organization.
Situation: how to formalize an employee’s consent to deduct social benefits from his salary. FSS of Russia refused to reimburse benefits?
Ask the employee to write a statement.
Withholding from an employee’s salary can only be done with his written consent and only in cases provided for by law (letter of the Federal Social Insurance Fund of Russia dated August 20, 2007 No. 02-13/07-7922).
Labor legislation does not answer the question in what form the employee’s consent should be obtained to deduct overpaid amounts from his salary - verbally or in writing. But in order to avoid misunderstandings in the future (for example, the employee first agreed verbally and then began to make claims), it is better to record the consent in writing - let the person write a statement. This conclusion follows from the provisions of Article 137 of the Labor Code of the Russian Federation.
The employee received a writ of execution: accounting
If an employee has received a writ of execution, that is, the organization is recovering the amount of an erroneously paid benefit in court, then the amounts specified in this document must be withheld from earnings. For more information about this, see How to make deductions from wages based on executive documents.
Make a note in your accounting:
Debit 70 Credit 73 (76)
– the amount of erroneously paid benefits (overpayment) under the writ of execution was withheld from the employee’s salary;
Debit 70 Credit 50 (51)
– the salary was issued from the cash register (the salary was transferred to the employee’s bank card) minus the withheld amount of the erroneously paid benefit (overpayment) according to the writ of execution.
The employee returned the money: income tax
Whether the return of an erroneous benefit will affect your income tax calculation depends on what benefit the fund refused to refund. There are two possible options.
Option 1: the fund refused to reimburse the benefit, which is fully financed by the Russian Social Insurance Fund
Benefits for which the FSS of Russia refused to reimburse expenses and which were returned by employees do not affect the calculation of income tax. We are talking about benefits for pregnancy and childbirth, child care, etc. Since the benefit was supposed to be reimbursed by the fund, then you did not take these amounts into account in expenses. This means that the return of money in case of refusal to reimburse the benefit does not affect the organization’s income. There is no economic benefit in the sense of Article 41 of the Tax Code of the Russian Federation. There is no need to adjust the tax base for income tax. There is no arrears for this tax.
Option 2: the fund refused to reimburse sick leave benefits when an employee of the organization suffered an illness or injury
If the fund refuses to reimburse the sick leave benefit, then the taxable income will have to be adjusted by the amount of the benefit for the first three days of the employee’s illness. After all, the organization paid for these days at its own expense.
Since this error resulted in an understatement of the tax base and incomplete payment of income tax to the budget, submit an updated tax return. An amendment must be submitted for the period in which the organization unlawfully took into account part of the sick leave benefit as expenses for the purpose of calculating income tax.
All these conclusions follow from the provisions of paragraph 1 of Article 81, paragraph 1 of Article 54, subparagraph 48.1 of paragraph 1 of Article 264 of the Tax Code of the Russian Federation, paragraph 1 of part 2 of Article 3 of the Law of December 29, 2006 No. 255-FZ.
Since there is arrears in income tax, the organization will have to pay penalties and possibly a fine (Articles 75, 122 of the Tax Code of the Russian Federation).
An example of how to take into account the return of sick leave benefits by an employee when the Federal Social Insurance Fund of Russia refuses to reimburse the amounts paid. General organization
Alpha LLC applies a general taxation system (accrual method); it pays income tax monthly based on actual profit.
Employee of the organization A.I. Ivanov (worker) was ill from June 1 to June 5. The employee's incapacity for work was confirmed by a sick leave certificate. Ivanov’s insurance experience exceeds eight years. He has the right to a benefit in the amount of 100 percent of average earnings calculated for two calendar years preceding the year of the insured event.
Sick leave benefits for the first three days of an employee’s illness are paid by the organization at its own expense. From the fourth day of illness, the amount of the organization’s benefit is reimbursed by the FSS of Russia. Ivanov’s average daily earnings are 500 rubles/day.
Alpha's accountant calculated the benefit as follows.
At the expense of the organization you need to pay: 500 rubles/day. × 3 days = 1500 rub.
At the expense of the Social Insurance Fund of Russia they pay: 500 rubles/day. × 2 days = 1000 rub.
Ivanov received the benefit on July 1. The amount of sick leave benefits increased the personal income tax base. The employee does not have the right to tax deductions. The tax amount was: (1500 rubles + 1000 rubles) × 13% = 325 rubles.
Ivanov was paid: 2500 rubles. – 325 rub. = 2175 rub.
Alpha's accountant transferred personal income tax to the budget on July 1.
The following entries were made in accounting:
Debit 20 Credit 70 – 1500 rub. – a benefit paid at the expense of the organization has been accrued;
Debit 69 subaccount “Settlements with the Social Insurance Fund for social insurance contributions” Credit 70 - 1000 rubles. – benefits paid at the expense of the Federal Social Insurance Fund of Russia have been accrued;
Debit 70 Credit 68 subaccount “Personal Income Tax Payments” – 325 rubles. – personal income tax is withheld from the benefit amount;
Debit 70 Credit 50 – 2175 rub. – a benefit was issued to the employee;
Debit 68 subaccount “Personal Income Tax Payments” Credit 51 – 325 rub. – personal income tax is listed.
The accountant included the amount of benefits paid at the expense of the organization (1,500 rubles) as income tax expenses. By the amount accrued at the expense of the Federal Social Insurance Fund of Russia (1000 rubles), the accountant reduced the amount of insurance contributions that he had to pay to this fund. The accountant transferred insurance premiums from payments to citizens to the budget on July 15.
On July 27, the Federal Social Insurance Fund of Russia made a decision to refuse to reimburse the amount of benefits due to the fictitiousness of the sick leave. The employee confirmed that the sick leave was not issued by the medical organization and agreed to return the benefit amount.
The following entries were made in accounting:
Debit 20 Credit 70 – 1500 rub. – the benefit amount paid at the expense of the organization is reversed;
Debit 69 subaccount “Settlements with the Social Insurance Fund for social insurance contributions” Credit 70 - 1000 rubles. – the amount of benefits paid at the expense of the Russian Social Insurance Fund has been reversed;
Debit 70 Credit 68 subaccount “Personal Income Tax Payments” – 325 rubles. – the amount of withheld personal income tax is reversed;
Debit 73 Credit 70 – 2175 rub. – the employee’s debt in the amount of the erroneously paid benefit (overpayment) was transferred;
Debit 50 Credit 73 – 2175 rub. – the employee returned the amount of the benefit to the organization’s cash desk.
The Alpha accountant transferred the income tax to the budget on July 28 with an increase in the amount of the tax base by 1,500 rubles. The reporting was prepared taking into account the correction of the error.
Alpha's accountant completed an updated Form 4-FSS. The organization had an arrears in terms of contributions to the Social Insurance Fund of Russia, for which the inspectors assessed penalties.
The FSS “wrapped up” the benefit: should personal income tax reporting be edited?
Still benefits or already income?
An organization (IP) paid a social insurance benefit to an employee or other individual.
Subsequently, the FSS, based on the results of the audit, refused to offset (reimbursement) this amount <1>. The organization decided not to argue with the Social Insurance Fund and leave the amount of the benefit to the employee <2>. In relation to insurance premiums, the Ministry of Finance and the Federal Tax Service believe that such a payment to an employee is not a temporary disability benefit, that is, a provision within the framework of compulsory social insurance <3>.
Does this payment remain a benefit in relation to personal income tax?
Or does the refusal of the Social Insurance Fund turn it into another income for an individual? The consequences of conversion to other income will be different for temporary disability benefits and other benefits. Let's look at these two groups separately. This article will focus on the first.
Temporary disability benefits
They are subject to personal income tax <4>. These include sick pay <5>:
— due to illness or injury (including work-related);
- caring for a sick child or other family member;
— on quarantine, prosthetics, after-care in a sanatorium after hospitalization.
These benefits have:
- a special deadline for paying personal income tax calculated from them (compared to most income of individuals). This is not the working day following the payment of money, as with most incomes, but the last day of the month in which the benefit amount is paid to the individual <6>. This date should be indicated in line 120 of the 6-NDFL calculation;
- your income code is 2300, it should be indicated in the 2-NDFL certificates <7>.
Therefore, if a refusal to offset turns these benefits into another type of income, then it is necessary to correct personal income tax reporting for the period in which the payment of money to an individual was reflected. After all, although the date of receipt of income (line 100 of the 6-NDFL calculation) remains the same, the deadline for paying personal income tax (line 120 of the calculation) changes.
In addition, if the payment was made in the middle of the month, but personal income tax was transferred only on the last day, the deadline for paying the tax is violated.
Fortunately, this is not true for all cases - it all depends on the reason why the FSS decided to refuse. There are two possible situations.
Situation 1. The FSS determined that there was no insured event
For example, the Foundation discovered that the certificate of incapacity for work was false or issued by the medical organization without any reason.
Then the amount remaining with the employee (if you decide not to collect it) can no longer be considered a temporary disability benefit, but is another income of the individual.
And here we can’t do without clarifications. The Federal Tax Service specialist also warns about this.
Personal income tax consequences of refusal to offset benefits due to the fact that there was no temporary disability
— If the FSS, as a result of an inspection, came to the conclusion that there was no insured event (for example, the sick leave turned out to be fake), then the qualification of the amount paid to the employee as a temporary disability benefit is impossible.
In such a situation, the tax agent is obliged to pay a penalty for late payment of personal income tax (if he transferred it later than the business day following the payment), submit an updated 2-NDFL certificate and a calculation in form 6-NDFL for the period in which the payment for the false one was reflected. sick leave.
Let me remind you that a tax agent is exempt from liability for false information <8> and for late payment of tax <9> if he paid penalties <10> and submitted updated reports before he learned of the discovery of the corresponding violation by the tax authority <11>.
Morozov D.A., Advisor to the State Civil Service of the Russian Federation, 1st class
So, you need to clarify the payments of this money to the employee during the period:
- calculation of 6-personal income tax, changing the date in line 120 “Tax payment deadline” for the personal income tax calculated from this amount from the last day of the month of payment to the business day following the payment of money. Adjustment of the date of receipt of income (line 100) is not required;
— certificate 2-NDFL (if it has already been submitted), replacing income code 2300 for this amount with 4800 (other income).
Penalties must be paid only if personal income tax was sent to the budget later than the next business day after payment of income <12>. If personal income tax was paid on the day the money was paid or on the next working day, there is no need to pay penalties.
The organization pays benefits for non-occupational illnesses and injuries for the first 3 days from its own funds <13>. Please note that corrections in the 6-NDFL calculation and 2-NDFL certificates must also apply to the amount of benefits for these 3 days, and not just the amount for which the FSS refused to offset (reimburse).
In the regions of the pilot project, reporting only needs to be corrected regarding the benefit amount for the first 3 days. After all, from the 4th day of incapacity for work, the benefit is paid to the employee directly by the Fund. If he discovers that the sheet is not real, then the decision to refuse will be passed not to the organization, but to the individual himself. The Foundation will only return to you for safekeeping the documents that you gave it <14>.
However, the FSS may attach to them a copy of its decision to refuse or another document indicating that the sheet is fake. This will be the basis for correcting personal income tax reporting in relation to the amount paid by you for the first 3 days of imaginary disability.
Situation 2. The Social Insurance Fund does not dispute the fact of the occurrence of an insured event
The Fund does not dispute that the employee was disabled and sought medical care. The Fund made a decision to refuse to offset (reimburse) the amount of the benefit or part thereof for another reason, for example:
— benefits were paid for days above the limit. Let us remind you that the number of paid sick days for child care, quarantine, prosthetics, after-care, as well as sick leave issued to disabled people and employees on a fixed-term employment contract is limited <15>;
— The Fund does not agree with the calculation of the amount of average daily earnings and reduced the benefit by making its own calculation;
— The Fund does not consider the reason for violating the hospital regime to be a valid reason and decided that some days of temporary disability should be paid based on the minimum wage <16>;
— there are errors in the design of the sheet;
- the certificate was issued in violation of the law (for example, the doctor himself extended sick leave in a situation where the commission should have done so);
- other documents necessary for granting benefits are completed incorrectly or are missing.
In this situation, the amount paid for sick leave, even after the Fund’s refusal, retains the nature of a temporary disability benefit - this is the judicial practice (although for insurance premiums, not for personal income tax) <17>, including in terms of benefits for excess days <18> . The only source of benefit payment is the organization’s funds, not the Social Insurance Fund.
The Tax Code does not stipulate that the last day of the month is the deadline for transferring personal income tax only for benefits at the expense of the Social Insurance Fund. It talks about temporary disability benefits in general, regardless of the source of their payment <19>. Therefore, the reporting does not need to be adjusted and there is no penalty for violating the deadline for paying personal income tax.
The Federal Tax Service specialist agrees with this.
The need to correct personal income tax reporting after refusal to offset on formal grounds
— If the very fact of the occurrence of an insured event, that is, temporary disability, was not disputed by the FSS, and the refusal to offset the benefit paid was due to other factors, then such a refusal cannot change the status of the amounts paid to the individual. They remain insurance coverage, that is, temporary disability benefits <20>.
No ch. 23 of the Tax Code of the Russian Federation, nor the Order of the Federal Tax Service “On approval of codes for types of income and deductions” <21> do not make the recognition of the paid amount of income as a temporary disability benefit dependent on the crediting of this benefit to the FSS. Therefore, the Fund’s refusal does not reclassify the payment as other income for personal income tax purposes. Accordingly, there is no need to clarify 2-NDFL certificates and 6-NDFL calculations. There can be no talk of a fine for violating the deadline for transferring taxes by a tax agent <22>.
Morozov D.A., Advisor to the State Civil Service of the Russian Federation, 1st class
ON THE. Martynyuk, accounting and taxation expert
<1> clause 4, part 1, art. 4.2, part 4 art. 4.7 of Law No. 255-FZ of December 29, 2006 (hereinafter referred to as Law No. 255-FZ)
<2> Articles 240, 137 of the Labor Code of the Russian Federation; Part 4 Art. 15 of Law N 255-FZ
<3> Letters of the Federal Tax Service dated 03/05/2018 N ГД-4-11/ [email protected] ; Ministry of Finance dated 09/01/2017 N 03-15-07/56382, dated 10/19/2017 N 03-15-06/68336
<4> clause 1 art. 210, paragraph 1, art. 217 Tax Code of the Russian Federation
<5> part 1 tbsp. 5 of Law N 255-FZ; subp. 1 clause 1 art. 8, Articles 3, 9 of the Law of July 24, 1998 N 125-FZ
<6> clause 6 art. 226 Tax Code of the Russian Federation
<7> Appendix No. 1 to the Order of the Federal Tax Service of September 10, 2015 No. ММВ-7-11/ [email protected]
<8> clause 1 art. 126.1 Tax Code of the Russian Federation; Letter of the Federal Tax Service dated 08/09/2016 N GD-4-11/14515 (clause 3)
<9> art. 123 Tax Code of the Russian Federation
<10> Art. 75 Tax Code of the Russian Federation
<11> pp. 4, 6 tbsp. 81, paragraph 2 of Art. 126.1 Tax Code of the Russian Federation
<12> art. 75 Tax Code of the Russian Federation
<13> clause 1 part 2 art. 3 of Law N 255-FZ
<14> pp. 8, 13 Regulations... in case of temporary disability and in connection with maternity, approved. Government Decree No. 294 dated April 21, 2011
<15> parts 1-7 art. 6 of Law N 255-FZ
<16> clause 1 part 1, part 2 art. 8 of Law N 255-FZ
<17> Determination of the Supreme Court dated 04.08.2017 N 308-KG17-680; paragraph 34 of the Review of Judicial Practice of the Supreme Court No. 5 (2017), approved. By the Presidium of the Supreme Court 12/27/2017
<18> Resolution of the AS ZSO dated 04/09/2018 N A81-4249/2017; 8 AAS dated December 15, 2017 N 08AP-14348/2017 (left unchanged by the Resolution of the AS ZSO dated April 9, 2018 N F04-764/2018)
<19> para. 2 clause 6 art. 226 Tax Code of the Russian Federation
<20> Definition of the Supreme Court dated 04.08.2017 N 308-KG17-680
<21> Order of the Federal Tax Service of September 10, 2015 N ММВ-7-11/ [email protected]
<22> Art. 123 Tax Code of the Russian Federation
The article was first published in the journal “Glavnaya Kniga”, N 18, 2018
The employee returned the money: USN
Whether the return of an erroneous benefit will affect the calculation of tax on the simplified tax system depends on what benefit the fund refused to reimburse. There are two possible options.
Option 1: the fund refused to reimburse the benefit, which is fully financed by the Russian Social Insurance Fund
Benefits for pregnancy and childbirth, child care, etc., for which the FSS of Russia refused to reimburse expenses and which were returned by employees, do not affect the calculation of the single tax. It does not matter which object of taxation the organization has chosen - “income” or “income reduced by expenses”. Since the benefit was supposed to be fully reimbursed by the Federal Social Insurance Fund of Russia, then you did not take these amounts into account in expenses and did not apply a deduction under the object “income” for them. Therefore, the return of money in case of refusal to reimburse the benefit does not affect the company’s income. There is no economic benefit in the sense of Article 41 of the Tax Code of the Russian Federation. There is no arrears for this tax. After all, simplified organizations do not take into account the amount of such benefits when calculating the single tax (clause 2 of Article 346.16, clause 3 of Article 346.21 of the Tax Code of the Russian Federation).
Option 2: the fund refused to reimburse sick leave benefits when an employee of the organization suffered an illness or injury
Regardless of the chosen object of taxation, if the fund refuses to reimburse the hospital benefit, either the tax base for the single tax or the tax itself will have to be adjusted to the amount of the benefit paid at its own expense.
Since, due to an error, the organization did not pay additional single tax, submit an updated tax return. It must be drawn up for the period in which the organization unlawfully reduced the single tax (included in expenses) by the amount of benefits paid at its own expense. That is, for the first three days of the employee’s illness.
This follows from the provisions of paragraph 1 of Article 81, paragraph 1 of Article 54, subparagraph 7 of paragraph 1 of Article 346.16, paragraph 3.1 of Article 346.21 of the Tax Code of the Russian Federation, paragraph 1 of part 2 of Article 3 of the Law of December 29, 2006 No. 255-FZ.
Once arrears have arisen regarding the single tax (advance payments thereon), the organization will have to pay penalties, and possibly a fine (Articles 75, 122 of the Tax Code of the Russian Federation).
An example of how to reflect when taxing an employee’s return of maternity benefits when the Federal Social Insurance Fund of Russia refuses to reimburse the amounts paid. The organization applies a simplification with the object of taxation “income”
Alpha LLC applies a simplified taxation system (taxable object “income”). Contributions to the Pension Fund of Russia, the Social Insurance Fund of Russia and the Federal Compulsory Medical Insurance Fund are calculated by Alpha at the regular rate.
From November 1 A.S. Dezhneva was hired by the organization as a part-time accountant. The employee presented a sick leave certificate to the accounting department, on the basis of which she was granted maternity leave from May 13 (for 140 calendar days). The amount of maternity benefit was 110,000 rubles.
Dezhneva received benefits on May 12.
By the amount accrued at the expense of the Federal Social Insurance Fund of Russia (RUB 110,000), the accountant reduced the amount of insurance premiums that the organization had to transfer to this fund. The accountant transferred insurance premiums from payments to citizens to the budget on June 15.
On September 24, the Federal Social Insurance Fund of Russia made a decision to refuse to reimburse the amount of the benefit. Dezhneva should have received benefits at her main place of work. The employee agreed to return the amounts previously paid.
Alpha's accountant completed an updated Form 4-FSS. The organization had an arrears in terms of contributions to the Social Insurance Fund of Russia, for which the inspectors assessed penalties and fines.
The fund refused to reimburse the benefit, which is fully compensated by the Russian Social Insurance Fund. Therefore, the accountant did not adjust the single tax during simplification.
An example of how to reflect when taxing an employee’s return of benefits for the birth of a child if the Federal Social Insurance Fund of Russia refuses to reimburse the amounts paid. The organization applies a simplification with the object of taxation “income reduced by the amount of expenses”
Alpha LLC applies a simplified taxation system (taxable object “income reduced by the amount of expenses”). The organization applies a reduced rate of insurance contributions: in the Pension Fund of Russia - 20 percent, in the Federal Social Insurance Fund of Russia - 0, in the Federal Compulsory Medical Insurance Fund - 0.
Employee of the organization A.I. Ivanov applied to the accounting department for payment of a one-time benefit for the birth of a child, despite the fact that his marriage with the child’s mother was dissolved and the child lives with the mother.
Benefit in the amount of RUB 14,497.80. was paid to the employee on January 19 (at the expense of the Russian Social Insurance Fund).
On March 24, the Federal Social Insurance Fund of Russia made a decision to refuse to reimburse the amount of benefits due to the fact that the employee did not have the right to payment (clause 27 of the Procedure approved by order of the Ministry of Health and Social Development of Russia dated December 23, 2009 No. 1012n). The employee agreed to return the amounts previously received.
The organization did not have any arrears in taxes and contributions and the accountant did not submit updated declarations (calculations).
How to reimburse expenses under the Social Insurance Fund in 2021: procedure
Based on the results of the reporting or billing period, it may turn out that the amount of expenses incurred by the policyholder for the payment of benefits at the expense of the Social Insurance Fund exceeded the total amount of accrued insurance contributions for compulsory social insurance in case of temporary disability and in connection with maternity. The difference that arises can either be offset against upcoming social insurance payments, or reimbursed by the territorial body of the Social Insurance Fund (clause 9 of Article 431 of the Tax Code of the Russian Federation). Where is compensation from the Social Insurance Fund reflected in the RSV?
Which department will reimburse benefits in 2021?
Insurance premiums accrued after 2021 are paid to the territorial tax office where the employer is registered. If there is an overpayment in insurance contributions for compulsory social insurance in 2021, you can do the following:
Having received such a calculation, tax authorities will report data on the claimed compensation to the Federal Tax Service of Russia. Specialists from social insurance will verify the accuracy of the declared expenses by conducting a desk or on-site audit. They will report the results to the tax authorities.
