When can personal income tax be paid before salary payments?

It's better not to list

Let us say right away that it is not recommended to pay personal income tax before the actual payment of wages. This approach may lead to claims from tax authorities. Therefore, before we talk about reflecting the situation when the tax is transferred before the payment of wages in 6-NDFL, we will warn readers about the risks.

Tax inspectors may not qualify the transferred amounts of money as personal income tax due to the fact that (clauses 4, 9 of Article 226 of the Tax Code of the Russian Federation, letter of the Ministry of Finance of Russia dated February 13, 2019 No. 03-04-06/8932):

tax withholding must come from the employee’s income;
Payment of tax from the organization’s own funds is not allowed.

According to officials, prematurely transferred personal income tax cannot be offset against the payment of this tax (letter of the Federal Tax Service dated March 29, 2014 No. BS-4-11/19714). Therefore, the employer must pay the tax on time, and the funds transferred as “tax” before the payment of wages can be returned in the general manner by submitting a corresponding application to the INFS (letter of the Ministry of Finance dated December 15, 2017 No. 03-04-06/84250).

These funds can also be offset against debts on other federal taxes. Such clarifications are contained in the letter of the Federal Tax Service dated 02/06/2017 No. BS-4-11/19716.

Tax liability under Article 123 of the Tax Code of the Russian Federation does not apply to the employer - tax agent. This is explained by the fact that there is no fact that the amount of tax was not transferred to the budget (letter of the Federal Tax Service dated September 29, 2014 No. BS-4-11/19716).

Court verdict: in what cases can personal income tax be paid before wages are paid?

The Arbitration Court of the Central District, in Resolution No. A54-8727/2018 dated October 29, 2019, recognized that tax officials illegally fined a tax agent who transferred personal income tax for employees before the actual payment of their salaries.

Subject of dispute

: a tax agent was fined for untimely transfer of withheld personal income tax to the budget. During the audit, the Federal Tax Service found that personal income tax from payments to employees was transferred to the budget before the actual payment of wages. That is, the tax was paid from the funds of the tax agent himself, which is directly prohibited by law. The decision of the Federal Tax Service was challenged in court.

What were they arguing about?

: 5,188 rubles.

Who did win

: tax agent.

The cassation court declared the decision of the tax inspectorate illegal and violating the rights of the tax agent. By law, tax agents are required to withhold the accrued amount of personal income tax directly from the taxpayer’s income upon actual payment (Clause 4 of Article 226 of the Tax Code of the Russian Federation).

The obligation to pay personal income tax is considered fulfilled by the employee from the day the tax amounts are withheld by the tax agent. After calculating and withholding personal income tax, the tax agent is obliged to transfer this amount to the appropriate budget. Failure of a tax agent to fulfill the obligation to timely transfer personal income tax entails the accrual of penalties and prosecution under Art. 123 Tax Code of the Russian Federation.

In themselves, the actions of transferring personal income tax to the budget before the established deadline do not lead to the occurrence of arrears for personal income tax, and the corresponding actions of the tax agent do not form an event and the elements of a tax offense established by Art. 123 Tax Code of the Russian Federation.

Payment of personal income tax at the expense of tax agents is indeed not allowed (clause 9 of Article 226 of the Tax Code of the Russian Federation). At the same time, payment of personal income tax at the expense of a tax agent will take place when personal income tax is paid by the tax agent not “for the taxpayer,” but “instead of the taxpayer.” That is, in cases where, when paying salaries, personal income tax is calculated and transferred to the budget, but is not withheld by the tax agent from the employees’ income.

Evidence of the transfer of tax at the expense of the Federal Tax Service's own funds was not presented in the case materials.

By transferring personal income tax in advance, the tax agent always withheld the calculated personal income tax from the income of his employees. In this regard, in fact, the costs of paying personal income tax have always been borne by the employees themselves. At the end of the tax period, there was no personal income tax debt for either the employees or the employer.

Accordingly, the court concluded, the tax inspectorate had no grounds to hold the tax agent liable under Art. 123 Tax Code of the Russian Federation.

How to fill

Now we’ll tell you how to reflect tax transferred ahead of schedule in 6-NDFL. The algorithm for filling out the form will be as follows:

line 100 – the last day of the month for which the salary was calculated;
line 110 – salary payment day;
line 120 – the next business day after the date on line 110;
line 130 – amount of income;
line 140 – amount of tax withheld.

Now you know how it is reflected in 6-NDFL when the tax is paid before the salary is issued.

If personal income tax is paid before the salary is issued

You only need to pay on the day the second part of the salary is transferred to the employees’ accounts. The amount paid to the budget on the day of payment of the advance is not considered personal income tax and is subject to refund. Thus, if the tax agent paid the personal income tax before the salary was paid, he will have to pay the tax again, despite the presence of an overpayment.

This conclusion follows from a letter from the Federal Tax Service. 3 of the Tax Code of the Russian Federation). At the same time, tax agents do not have the right to pay personal income tax from their own funds (clause

9 of the Tax Code of the Russian Federation). Based on the listed norms, the tax department draws a conclusion: the obligation to transfer taxes to the budget arises from the tax agent only after the tax has actually been withheld from the funds paid to the taxpayer.

If the employer transferred personal income tax to the budget before the payment of wages (that is, from his own funds, and not from the income of individuals), then such an amount is not recognized as tax.

In this case, you need to contact the inspectorate with an application for the return of erroneously transferred funds to the tax agent’s bank account.

In support of their position, officials refer to the resolution of the Federal Antimonopoly Service of the Central District dated January 14, 2010 No. A48-38/2009.

It states that the organization must transfer the withheld tax to the budget, despite the presence of an overpayment of personal income tax.

This is due to the fact that the presence of such an overpayment does not relieve the organization from performing the duties of a tax agent. Accordingly, in the described situation, holding the organization liable on the basis of Article 123 of the Tax Code of the Russian Federation is legal. However, it should be noted that most courts take the opposite position.

The arbitrators believe that when deciding whether to hold someone liable, it is necessary to take into account the overpayment (see, for example, the resolution of the Federal Antimonopoly Service of the Ural District dated October 5, 2009 No. F09-7431/09-S3).

Paying personal income tax before salary is paid

And the inspectors considered these amounts not as personal income tax, but as erroneous payments.

In this case, you will have to transfer personal income tax again. And the amounts transferred in advance must be returned from the budget.

To do this, you need to write an application to the Federal Tax Service (Article 78 of the Tax Code of the Russian Federation). Since you remit the tax after the due date, you will be charged a penalty. You can calculate them yourself using the formula given above.

Or wait until the Federal Tax Service makes a demand for the amount of the penalty. Penalties are not assessed on penalties, so there is no need to rush to pay them into the budget.

One important point. Sometimes tax authorities fine organizations for early payment of personal income tax under Article 123 of the Tax Code of the Russian Federation. And further.

Subtleties of deduction and transfer of “salary” personal income tax

And at the same time, personal income tax is withheld from wages for the second half of the month and transferred to the budget at the required time.

Neither employees nor tax inspectors should have any complaints.

And the accountant always has an amount from which personal income tax can be withheld. After all, even if an employee is ill throughout the second half of the month, at the end of the month he will have accruals equal to the amount of personal income tax from his salary for the first half of the month. APPROACH 2. For the first half of the month, pay the salary in full, without its virtual reduction by the amount of personal income tax.

Then withhold the tax, but you don’t need to transfer it to the budget right away: after all, we remember that according to the Tax Code rules, you need to wait for the final payment for the month and then transfer this tax along with personal income tax from your salary for the second half of the month.

In our example: the employee will be credited 15,000 rubles for the first half of the month, and 1,950 rubles will be withheld.

6-personal income tax for the 3rd quarter: personal income tax paid before salary

Personal income tax was paid before salary. How to fill out 6-NDFL for the 3rd quarter (9 months)?

First you need to pay the employee income and withhold personal income tax. And only then transfer the tax to the budget. This is a key rule in calculating personal income tax.

After all, the payer of this tax is the employee, and the employer only performs the functions of a tax agent. However, questions received from accountants showed that some employers transfer personal income tax without having yet issued wages.

Although paying personal income tax at the expense of the employer’s money is prohibited (clause

9 tbsp. 226 of the Tax Code of the Russian Federation). It turns out that even in such a situation the tax must be shown in form 6-NDFL.

How to do it?

There are two sections in form 6-NDFL.

In section 1, you reflect employee income and personal income tax amounts calculated on an accrual basis from the beginning of the year. That is, the report for 9 months of 2021 will contain indicators for January – September.

Tax authorities will find out information about this themselves from your budget settlement card. We are looking at the wrong situation.

The accountant transferred the personal income tax without having yet withheld it from the employee.

Therefore, before filling out section 2, you need to find out whether the employee was paid the salary on which the tax was paid to the budget ahead of time. If we fill out form 6-NDFL for 9 months, we look at payments for this period - from January to September.

This is the deadline by which you had to pay personal income tax (clause 6 of Article 226 of the Tax Code of the Russian Federation). The fact that you paid personal income tax to the budget much earlier should not be reflected in section 2.

On September 6, Vesna LLC transferred personal income tax to the budget from wages for August. And the company issued the salary itself (the final part) on September 12. We will show how an accountant will fill out section 2 of form 6-NDFL for 9 months, if the accrued amount for August is 375,000 rubles, personal income tax is 48,750 rubles.

Source: https://rusdolgi.ru/esli-ndfl-uplachen-ranshe-chem-vydana-zarplata-29860/

Payer categories

As a general rule, a tax agent, after withholding personal income tax, is obliged to transfer it to the inspectorate at the place of registration no later than the first working day following the day of payment of income to individuals - this is due to the requirements of paragraphs 1, 2 of Article 226 of the Tax Code. Since it is the organization that acts as the tax agent, it is first necessary to determine what kind of income is paid to the employee. Indeed, for some types of income, paragraph 6 of Article 226 of the Tax Code of the Russian Federation establishes special deadlines for payment to the budget.

Employee income can be divided into two categories:

payment of personal income tax no later than the next day after the tax is withheld,
personal income tax payment no later than the last day of the month (special payment deadlines).

The first includes such types of income as wages, bonuses, and dividends. This should also include the withholding of personal income tax on income in kind and the tax calculated on wages for daily allowances worked in excess of the norm.

The second category is vacation pay and temporary sick leave pay both for yourself and for child care.

Please note that if the last day of the period falls on a weekend and (or) a non-working holiday, then personal income tax must be transferred no later than the next working day - the rule follows from paragraph 7 of Article 6.1 of the Tax Code of the Russian Federation.

Is it possible to pay personal income tax before paying wages?

Returning to the question of whether it is possible to pay personal income tax before paying wages, the legislation clearly answers - no, transferring a tax payment as a fulfillment of the duty of a tax agent until the funds are accrued is not allowed.

This position is reflected in the decision of the Federal Tax Service dated 05.05.16 No. SA-4-9/8116. In accordance with this regulatory document, the employer is obliged to perform the function of a tax agent only after wages have been accrued and an amount in the established amount can be withheld from it. Such funds cannot be transferred in advance (see Advance). The Ministry of Finance adheres to the same position (letter dated September 16, 2014 No. 03-04-06/46268).

Transfer of tax from your own funds

In accordance with Art. 24 of the Tax Code of the Russian Federation, tax agents are persons who are entrusted with the duties of calculating, withholding from the taxpayer and transferring taxes to the budget system of the Russian Federation. Tax agents transfer withheld taxes in the manner prescribed by the Tax Code of the Russian Federation for the payment of taxes by a taxpayer. Clause 3 of Art. 226 of the Tax Code of the Russian Federation establishes that personal income tax amounts are calculated by tax agents on an accrual basis from the beginning of the tax period based on the results of each month in relation to all income taxed at a rate of 13% accrued to the taxpayer for a given period, with the offset of the tax amount withheld in previous months of the current tax period.

Tax agents are required to withhold the accrued amount of personal income tax directly from the taxpayer’s income upon actual payment (Clause 4 of Article 226 of the Tax Code of the Russian Federation). The tax agent withholds the accrued amount of tax from the taxpayer at the expense of any funds paid by the tax agent to the taxpayer upon actual payment of these funds to the taxpayer or on his behalf to third parties.

By virtue of clause 6 of Art. 226 of the Tax Code of the Russian Federation, tax agents are required to transfer the amounts of calculated and withheld personal income tax no later than the day of actual receipt of cash from the bank for the payment of income, as well as the day of transfer of income from the accounts of tax agents in the bank to the accounts of the taxpayer or, on his behalf, to the accounts of third parties in banks .

The date of actual receipt of income is defined as the day of payment of income, including the transfer of income to the taxpayer’s bank accounts or, on his behalf, to the accounts of third parties, when income is received in cash (clause 1, clause 1, article 223 of the Tax Code of the Russian Federation). And when receiving income in the form of wages, the date of actual receipt by the taxpayer of such income is the last day of the month for which he was accrued income for work duties performed.

Further, the norms of the Tax Code of the Russian Federation (clause 9 of Article 226 of the Tax Code of the Russian Federation) warn: payment of personal income tax at the expense of tax agents is not allowed.

And here the tax authorities report that since the company transferred the amount of personal income tax earlier than paying wages to employees, then it (de jure) transferred the amount of tax from its own funds, which is prohibited by law. This means that the amount paid is not recognized as a tax transfer; accordingly, the company faces arrears, fines and penalties!

Our opinion

To be honest, we were unable to find an official opinion from officials on this issue. There is a Letter from the Federal Tax Service of Russia dated October 19, 2011 N ED-3-3/ [email protected] , which states that if an organization transfers more personal income tax to the budget than it withheld from the employee, then the excess amount is not a tax. In this case, companies are recommended to contact the tax office with an application for the return of erroneously transferred funds.

Some experts suggest that the amount of tax transferred ahead of schedule at the expense of the organization’s funds, from the point of view of the Federal Tax Service of Russia, is not regarded as a tax.

Let us repeat, there is still no concrete position of officials on the issue under consideration.

But even if you simply use logic, the position of the tax authorities looks completely flawed.

Firstly, the transferred personal income tax amount will reduce the amount of wages paid to employees. This means that the payment is still made at the expense of the employees, and not the employer. Otherwise, the strange logic of the tax authorities can be taken to the point of absurdity. It turns out that the company must first pay the full amount of wages to the employees. Thus, money from the company’s funds will formally turn into employee funds (after all, the company pays salaries to employees from its own funds). But part of the money must be immediately taken from employees to pay taxes. Agree that this is, to put it mildly, absurd.

Secondly, personal income tax can be transferred no later than the day the money is transferred to the bank for payment of wages (clause 6 of Article 226 of the Tax Code of the Russian Federation). Purely formally, early payment of personal income tax occurs no later than the day of transfer. So where did the tax authorities see the violation?

Salary income of citizens is subject to taxation. The employer in this case acts as a tax agent who deducts personal income tax from the employee’s salary and transfers it to the budget. In this case, the employer should strictly adhere to the deadlines established by law for transferring personal income tax.

Personal income tax is a special case

The greatest disputes, including those of a judicial nature, arise in relation to income tax. In most cases, it is paid for the employees by the tax agent - the organization where they work. Early payment may occur if there are available funds in the employer’s current account and the personal income tax due date has not yet arrived. The good deed of early replenishment of the budget can result in serious consequences due to the fact that the Federal Tax Service strictly controls the timing of payment of wages (other payments subject to personal income tax) and the associated timing of tax payments.

So, according to Art. 226 (6) of the Tax Code of the Russian Federation, when issuing wages from the cash register or transferring the amount to a card, the tax on these amounts must be paid no later than the next day; for sick leave, the deadline is no later than the end of the month, etc. Withholding of personal income tax (and its calculation) is carried out by the organization at the expense of the taxpayer, i.e. employee, at the time of actual receipt of income (Article 223 of the Tax Code of the Russian Federation, clauses 1.2).

Early payment of personal income tax, according to the fiscal authorities, is impossible, since according to clause 4 of Art. 226 the organization is obliged to calculate the tax from the income of the taxpayer, and not from its own funds.

Organizations refer to the possibility of early payment of tax and their right, as a tax agent, to exercise this opportunity.

In practice, early payment of personal income tax is most often expressed in an overpaid amount of tax, which the organization independently offsets for the next period and then pays a smaller amount. Such actions lead to the accrual of penalties and fines, and the underpayment must be repaid.

The position is contained in Letters of the Federal Tax Service No. SA-4-9/81160 dated 05-05-16, No. 03-04-06/43711 dated 01-09-14 and a number of other similar ones published earlier.

Most court decisions, however, are made in favor of the taxpayer. So, back in 2021, the FAS MO resolution No. F05-5279/2015 dated 07/28/16 talks about the possibility of early payment of personal income tax by an agent. It is noted that the payment of income tax amounts is compensated by subsequent withholding from employees, which means it can be considered payment at the expense of the tax agent.

Important information published by the Supreme Court. From the definition No. 305-KG17-15396 of the Supreme Court dated 12/21/17, it follows that overpayment of personal income tax to the budget does not violate the law. The organization can consider excess amounts paid ahead of schedule and count them into payments for any subsequent month.

This issue has been the subject of many years of disputes between the Federal Tax Service and organizations, and we should expect them in the future. However, tax agents now have an additional argument in their dispute with the fiscal authorities.