Taking leave during and after a business trip

03.07.2019

111

4 min.

An employee’s right to rest is inalienable and protected by law. There are situations when, in the interests of the enterprise, it is necessary to interrupt the current weekend and send an employee on a trip on company business. If a business trip is unavoidable during vacation, the HR department and accounting department should know how to arrange and pay for it. This must be done with caution, strictly observing the nuances of the procedure according to programs and documents. Otherwise, the company cannot avoid fines and unpleasant inspections by the relevant authorities.

Review from another vacation for a business trip

According to Article No. 166 of the Labor Code of the Russian Federation, a business trip is a work trip outside the municipality in which the organization is located.

If there is a need for an employee to travel on business, and he is on vacation, the employer must interrupt the vacation. To do this, you need to properly register your review and business trip.

Can they be sent on a business trip when the employee is on vacation?

Within the framework of labor legislation, an employee of an organization can be recalled from vacation and sent on a business trip, however, all these processes occur with the consent of the employee of the enterprise.

The employee’s recall is formalized by the employer as an order, followed by the attachment of a statement from the employee agreeing to interrupt his vacation and go on a business trip. This is followed by the recalculation of vacation pay, as well as the accrual of travel and daily allowances.

Based on these documents, changes are made to the vacation schedules of other employees. Features of documenting the entire procedure are prescribed in Government Decree No. 749 of October 13, 2008. This legal act establishes that the purpose of a business trip is determined by the employer or the head of the business trip, and he also draws up the terms of reference for the duration of the business trip. Next, the length of stay of the employee on a business trip, the amount of daily allowance and advance payment are calculated.

Upon returning from a business trip, the employee presents to the employer all receipts confirming the expenses incurred. Based on these data, the final calculation of waste and accounting is carried out.

In what cases cannot an employee be recalled from vacation?

In some cases, it is impossible to send a citizen from vacation on a business trip. The restriction applies if the employee:

has not reached the age of majority;
is on sick leave due to pregnancy and childbirth;
is on study leave;
is on vacation without pay.

A business trip during vacation is also impossible for citizens whose work activities take place in harmful or dangerous working conditions.

The Ministry of Labor explained the nuances of granting regular leave during a long-term business trip

The employer turned to the Ministry of Labor for clarification on what to do in a situation where an employee on a long business trip requested annual paid leave. In this case, the employee belongs to the preferential category and has the right to go on vacation at any time. Do I need to interrupt my business trip while on vacation?

Labor department specialists explained that annual leave and business trips are two different events. During vacation, the employee is free from performing work duties and is free to use this period at his own discretion. At the same time, he retains his place of work and average earnings (Articles 107, 114 of the Labor Code of the Russian Federation). And during a business trip, the employee performs an official assignment from the employer outside the place of permanent work (Article 166 of the Labor Code of the Russian Federation).

Thus, an employee cannot be on a business trip and on vacation at the same time. However, labor legislation does not prohibit sending an employee on a long business trip and granting annual leave without a gap between business trips. Therefore, if the time of annual leave according to the approved schedule fell in the second month of the business trip or the employee took advantage of the benefit of Part 4 of Art. 123 of the Labor Code of the Russian Federation and demanded a vacation at a time convenient for him, instead of one long business trip, you can arrange two: one ─ before the vacation, the other ─ after its end (Letter of the Ministry of Labor of the Russian Federation dated September 10, 2019 N 14-2/B-726).

The option when the start date of the vacation is known in advance and it falls between days of business trips is formalized in ZUP 3 in the standard way:
Enter the document Business trip with an end date the day before the start of the vacation.
The Vacation document is created .
The next day after the end of the vacation, a new business trip .
The option when, at the request of an employee, leave must be granted, in ZUP 3 is formalized as follows:
The original document Business trip is adjusted using the Correct and the end date of the business trip is set on the eve of the start of the vacation.
The Vacation document is created .
The next day after the end of the vacation, a new business trip . If it is required that the average earnings be the same as it was on the eve of the start of the vacation, then in the Business Trip in the Average earnings , you should indicate the Calculation period of the average earnings is the same as in the first Business Trip .

See also:
Travel accounting settings (settings)
Accounting and registration of business trips (personnel)
Payment for business trip time (calculation)
Making a vacation order (personnel)
Calculation and payment of vacation pay (calculation)

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Procedure for registering a business trip during vacation

Algorithm for the procedure for sending a citizen on a business trip during the next vacation:

The manager draws up a notice of the need for a business trip and sends it to the employee.
The employee familiarizes himself with the proposal received and gives his consent or refuses the trip.
The director issues a recall order and creates a job assignment for the period of work on a business trip.
Accounting employees recalculate and pay daily allowances and vacation pay.

The notification sent is drawn up by the director of the organization in free form. The contents of the document indicate:

company name indicating the registration form;
Full name and position of the citizen to whom the message is addressed;
description of the situation and proposal to interrupt vacation for a business trip;
clarification of the employee’s right to the opportunity to receive rest after a business trip or along with the next paid rest;
link to Part 2 of Art. 125 of the Labor Code of the Russian Federation that a citizen has the right to refuse a recall;
Date of preparation;
Full name, position title and signature of the compiler.

A sample of a written notification is available here.

Written consent of the employee

The consent is drawn up by the employee in free form. The contents of the document indicate the following information:

name of the organization indicating the registration form;
Full name and position of director;
the date when the citizen interrupts his vacation and goes on a business trip;
indicating the dates when the employee plans to receive the remaining vacation days;
Date of preparation;
signature.

ATTENTION! According to Art. 125 of the Labor Code of the Russian Federation, it is impossible to recall a citizen from vacation without approval. If a notice of interruption is refused, the employer may not take disciplinary action. Otherwise, the manager is held accountable in accordance with Art. 5.27 Code of Administrative Offenses of the Russian Federation.

The manager does not have the right to deprive bonuses, discriminate in career growth, reduce wages, etc. When using illegal methods of influence in accordance with Art. 356 of the Labor Code of the Russian Federation, a citizen can appeal to the labor inspectorate with a complaint.

Manager's decision

After receiving consent, the manager formalizes his decision. To do this, he needs to issue a recall order. It can be drawn up in free form or on a form regulated by local acts of the organization.

The contents of the order indicate the following information:

Company name;
Date of preparation;
registration number of the order;
link to article 125 Labor Code of the Russian Federation;
date the employee returns to work;
basis for drawing up (details of the notification sent to the citizen);
an order for the accounting department to recalculate vacation pay;
signature of the recalled employee;
compiler's signature.

A sample order is available here.

Service assignment

The fact of going on a business trip must be recorded by an appropriate order. It is drawn up in the T-9a form or on the enterprise’s own form.

Details of the trip are reflected in the job description. Its contents indicate:

document number and date of its preparation;
Company name;
information about the employee (full name, position);
place of business trip;
length of stay on a business trip;
list of goals;
regulations on working hours and days off during travel;
payment provisions;
regulations on additional charges (payment for accommodation, travel, food, etc.);
signatures of the parties;
Date of preparation.

To fill out a job assignment, you can use the organization’s form or the unified form T-10a. The sample is available here.

ADVICE! A job assignment is not required. The manager has the right to decide on the need to draw it up.

Types of leave on business trips and payment

Vacation is one of the types of time for an employee to rest, according to Article 107 of the Labor Code of the Russian Federation . That is, if an employee is on vacation, he has the right not to perform his official duties. If we consider Article 166 of the Labor Code of the Russian Federation , then a business trip is a business trip on which an employee is sent by order of the employer. If he is on vacation, the manager does not have the right to send him on a trip. First, it must be withdrawn. There are different types of such periods:

At your own request;
Paid vacation;
Maternity leave;
Caring for sick people.

How to arrange a business trip while on vacation?

In order to avoid punishment under Article 5.27 of the Code of Administrative Offenses of the Russian Federation , the manager must recall the employee. After this, attach all the documents for the business trip and calculate the daily allowance and vacation allowance.

As a rule, a review is formalized through a special application, which is submitted by the head of the department to the employer about the need for a specific employee.

There are no clear instructions in the legislation that it is better to do this in writing. However, to avoid labor disputes, it is better to have supporting documents on hand.

Business trip during vacation without pay

Only the head of the company can decide whether it is necessary to delay an employee on a business trip for a certain time. He must also decide whether the return ticket will be paid if the employee is delayed.

The same applies to unpaid leave. If an employee requests leave for a valid reason, the company may grant or deny it. After all, this is her right, not her obligation. The time frame is determined only after the agreement of the two parties. Moreover, it is provided not for the duration of the trip, but after it. As for the costs of the return ticket, they are still taken into account in the tax summary. After all, the costs were incurred in any case. And personal income tax will be withheld from the ticket price, since the payment is not considered as compensation that is directly related to the business trip.

Business trip during maternity leave

According to the law of the Russian Federation, pregnant women are prohibited from going on work trips. If she has a child under three years of age, she can be sent on a business trip only after written consent, and also provided that there are no prohibitions from a medical point of view.

It is worth noting that a woman who has children under three years of age must familiarize herself in writing with the right to refuse to travel. If these standards have not been met, the employer will be held administratively liable. If this is a legal entity, the fine is up to 50 thousand rubles or suspension of activities for up to three months.

Notification that a woman can refuse is issued in any format convenient for the company:

Individual document;
Note in the order;
As a statement from an employee who agrees to go on a business trip.

Extension of vacation during a business trip

As Article 124 of the Labor Code of the Russian Federation , if circumstances arise in which an employee could not take advantage of vacation, rest days must be extended or postponed to another date. The employer must take care of this when taking into account the wishes of employees.

If it is renewed, this may be done automatically for a certain number of days. The employee must notify the manager about this. If he wants to postpone the interrupted vacation to another period, this is also discussed in advance with the employer.

Calculation of business trip payments and recalculation of vacation pay

Since the citizen left his vacation early, he returns part of the funds received. Their sum is calculated using the following formula:

SO / KD × KND , where:

SO – the amount of vacation pay received;
KD – number of days of rest provided;
KND – number of unused days.

Travel allowances are paid based on the citizen’s average earnings over the last 12 months. Additionally, the employer compensates for the cost of accommodation, food, travel or fuel consumed.

From business trip to vacation

Combining a business trip with a vacation, an accountant has to solve three tax problems: personal income tax, insurance premiums, and income tax. A little trick in arranging for business trips that turn into vacations will help you avoid tax losses.

Elena Pustynina found out the details

Sometimes employees are so excited about business travel that they choose—with prior management approval—to stay at their business trip destination for a few extra days to use vacation time, accrued PTO, or want to stay over the weekend. Others, on the contrary, go there earlier to rest before they begin their official assignment. Management usually doesn’t mind, because the company will pay for round-trip tickets anyway. Accounting has to solve problems related to several taxes at once. It turns out that on one of the tickets the employee went not on a business trip (from a business trip), but on vacation (from vacation). Will the company's costs for such a ticket be justified from the point of view of writing them off in the calculation of income tax? And shouldn’t they be recognized as employee income subject to personal income tax? And if so, is it necessary to charge insurance premiums on them? After all, in fact, the employee got to the place of vacation or returned home from it at the expense of the company. And the tax authorities may consider that in this case the employer compensated him not for travel expenses, but for the cost of travel to or from his vacation destination.

The Ministry of Finance has its own answers to the first two questions. The financial department insists on paying personal income tax, but they do not intend to exclude the cost of a ticket from the calculation of income tax. The fact is that for one tax the financial department considers the cost of a ticket to be the employee’s income, and for another - compensation for his travel expenses, and without being embarrassed by such a discrepancy, he sets out all this in one letter (dated April 1, 2009 No. 03-04- 06-01/74). It would seem that this is a completely advantageous position for the company, since it does not pay tax on personal income from its own funds, but withholds it from the employee’s salary. However, it is beneficial only at first glance - alas, only officials can contradict themselves without consequences.

Either it’s a benefit or it’s not a benefit

The Ministry of Finance has long argued that when returning from a business trip that turned into vacation, the employee received benefits in kind in the form of payment for his travel from the vacation spot home. Meanwhile, Article 41 of the Tax Code recognizes economic benefits in cash and in kind as income. Payment for goods (works, services) for an employee refers to his income subject to personal income tax (subclause 1, clause 2, article 211 of the Tax Code).

Then the Ministry of Finance temporarily softened its position and admitted that in some cases the employee does not have income (letter dated August 5, 2008 No. 03-04-06-01/246). The financial department suggested that accountants independently assess whether the employee received a benefit or not. And they gave two examples where, in their opinion, there is a benefit. So, if the vacation was longer than a business trip, the tax authorities will consider that the real purpose of the trip was recreation, and not the fulfillment of a work assignment, which means that personal income tax must be withheld from the ticket price reimbursed to the employee. They will come to the same conclusion if the business trip is not related to the employee’s job responsibilities. In the letter, the Ministry of Finance specifically emphasized that the possibility of personal income tax claims by tax authorities is not limited to these two cases.

However, in 2009, the explanations of the Ministry of Finance again became categorical: if an employee stayed at the place of a business trip after its end for at least a weekend, the cost of a return ticket is his income for personal income tax purposes and cannot be recognized as reimbursement of travel expenses (paragraph 1 of the letter dated April 1, 2009 No. 03-04-06-01/74). However, the courts take the opposite point of view (resolution of the Federal Antimonopoly Service of the Ural District dated June 19, 2007 No. F09-3838/07-S2).

For profit tax purposes, the Ministry of Finance agrees to recognize the cost of a ticket as a travel expense, written off in calculating the tax base (subclause 12, clause 1, article 254 of the Tax Code). The financial department considers them justified for the reason that the cost of travel to the place of business trip and back would have been incurred by the company in any case - no matter what the duration of the trip was and whether the employee stayed there for rest or not (paragraph 2 of the letters dated August 5, 2008 No. 03-04-06-01/246 and dated April 1, 2009 No. 03-04-06-01/74). Why, in the understanding of the Ministry of Finance, this argument “does not work” for personal income tax remains a mystery. Although it is precisely this circumstance that excludes the employee from benefiting.

It is obviously easier for an accountant to withhold personal income tax from the cost of a ticket from regular payments to an employee than to argue with the tax office. However, by simplifying your task in this way, you can lead the company into a trap - it is possible that it will have to spend money on other tax items. After all, by doing so, the accountant recognizes the cost of the ticket as the employee’s income paid within the framework of the employment relationship (the Ministry of Health and Social Development considers all payments to workers under employment contracts as such, even those that are not directly named in them - letter dated March 16, 2010 No. 589-19). And this will automatically entail the need to charge insurance premiums to him (clause 1, article 7 of the Law of July 24, 2009 No. 212-FZ), while compensation for travel expenses is not subject to contributions (clause 2, article 9 of the same law) , and at the same time will question the write-off of the cost of the ticket in the calculation of income tax, which the Ministry of Finance generally does not object to. Because, having withheld personal income tax, the accountant will confirm that these are not travel allowances, but payment for the employee’s personal expenses, the inclusion of which in the calculation of taxable profit the inspectors are unlikely to agree (referring to paragraphs 16 and 29 of Article 270 of the Tax Code).

The Ministry of Health and Social Development agrees that only those gratuitous transfers to employees that are formalized in a written gift agreement and not provided for in an employment contract (letter dated March 5, 2010 No. 473-19) are not subject to insurance premiums. Let us remind you that according to the Civil Code, all gift agreements concluded by organizations for an amount exceeding 3,000 rubles must be written (clause 2 of Article 574 of the Civil Code). And gifts totaling up to 4,000 rubles per year are not subject to insurance premiums (Article 7 of Law No. 212-FZ). It is rare that a train ticket, much less an air ticket, fits within this framework. However, if there is a gift agreement, it will no longer be possible to take into account the cost of the ticket in income tax expenses. That is, having thus avoided the calculation of insurance premiums, we again come to the impossibility of reducing the income tax base.

Business trip disguise

To avoid getting involved in disputes with inspectors, some companies use a little trick. Since the employee receives the go-ahead to spend a vacation at the place of business trip from management in advance, some measures are taken at this stage. They agree with the employee that the vacation will be issued as part of a business trip, and instead of vacation pay, he will be accrued the average salary for this time. Indeed, for tax purposes, the Ministry of Finance considers the days of the beginning and end of a business trip to be the dates specified in the order about it, taking into account the travel time (letter dated April 1, 2009 No. 03-04-06-01/74). Officials do not mention the travel certificate and the marks on it in their letters. And when it comes to foreign business trips, a travel certificate is not required, and foreign colleagues may be surprised at the requirement to put marks on such paper. If management does not want to give an employee daily allowances for vacation days under the guise of a business trip, then their amount will subsequently be withheld from payments under the employment contract under some “plausible” pretext (for example, as a reduction in part of the bonus). The days of actual rest on a business trip must subsequently be worked out. Usually in such cases, upon returning to their permanent place of work, the employee takes leave at his own expense, but in fact goes to work and performs his duties.

Date of publication: June 24, 2011, 09:54

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