Compensation for material and other types of damage by the perpetrators

Employee compensation for damage caused: accounting and taxation

12.02.20
The article was published in the newspaper “First Page” No. 1 (117), February 2021.

In practice, there are often cases when, due to the fault of an enterprise employee, damage or loss of the organization’s property occurs. Let's consider accounting and tax accounting of transactions related to employee compensation for damages caused.

Financial liability arises for damage caused to the employer through the fault of the employee.

An employee may be held financially liable if:

• direct actual damage (Article 238 of the Labor Code of the Russian Federation);
• unlawful behavior (part 1 of article 233 of the Labor Code of the Russian Federation);
• the employee’s guilt (Part 1 of Article 233 of the Labor Code of the Russian Federation).

At the same time, the employee’s financial liability is excluded in cases of damage arising due to force majeure, normal economic risk, extreme necessity or necessary defense, or the employer’s failure to fulfill the obligation to provide adequate conditions for storing property entrusted to the employee (Article 239 of the Labor Code of the Russian Federation).

Thus, the employee is obliged to compensate the employer for direct actual damage caused to him in accordance with the norms of labor legislation and other federal laws (Article 238 of the Labor Code of the Russian Federation). In this case, lost income (lost profits) cannot be recovered from the employee.

Direct actual damage is understood as a real decrease in the employer’s available property or deterioration in the condition of said property (including property of third parties located at the employer, if the employer is responsible for the safety of this property), as well as the need for the employer to make costs or excessive payments for the acquisition, restoration of property or compensation for damage caused by the employee to third parties.

By virtue of Art. 22 of the Labor Code of the Russian Federation, the employer has the right to demand compensation for damage caused by the employee.

Calculations for the purpose of using CCP

The definition of the term “settlements” is given in Article 1.1 of the Federal Law of May 22, 2003 No. 54-FZ “On the use of cash register equipment when making payments in the Russian Federation” (hereinafter referred to as Law No. 54-FZ).
This definition includes any non-cash payments, as well as operations to offset advances, “commodity” loans and barter.

Calculations include:

• acceptance (receipt) and payment of funds in cash and (or) by bank transfer for goods, works, services;
• accepting bets, interactive bets and paying out funds in the form of winnings when carrying out activities related to organizing and conducting gambling, as well as accepting funds when selling lottery tickets, electronic lottery tickets, accepting lottery bets and paying out funds in the form of winnings when carrying out activities related to organizing and conducting lotteries;
• acceptance (receipt) and payment of funds in the form of advance payment and (or) advances, offset and return of advance payment and (or) advances;
• provision and repayment of loans to pay for goods, works, services (including pawnshops lending to citizens secured by things belonging to citizens and activities for storing things);
• providing or receiving other consideration for goods, works, services.

Thus, when receiving payment for operations related to the sale of goods, performance of work or provision of services, as well as other operations specified in this closed list, it is required to use cash register systems.

The procedure for calculating the amount of deduction from an employee

The amount of damage caused to the employer in the event of loss and damage to property is determined by actual losses, calculated on the basis of market prices prevailing in the specified area on the day the damage was caused, but not lower than the value of the property according to accounting data, taking into account the degree of wear and tear of this property (Article 246 Labor Code of the Russian Federation).

As a general rule, an employee bears financial responsibility within the limits of his average monthly earnings (Article 241 of the Labor Code of the Russian Federation). At the same time, the total amount of deductions cannot exceed 20% of the paid wages remaining after taxes are withheld (Article 138 of the Labor Code of the Russian Federation, Letter of the Federal Tax Service of Russia dated August 14, 2018 No. AS-4-20/15707).

Thus, if, for example, the amount of damage caused by an employee was 45,000 rubles, and his salary was 50,000 rubles, then the employer will be able to deduct no more than 8,700 rubles from his salary every month. ((RUB 50,000 – (RUB 50,000 × 13%)) × 20%).

In this case, damage in the amount of average monthly earnings will be compensated for 6 months. In this case, the amount of the last deduction will be 1,500 rubles. (45,000 rub. – (8,700 rub. × 5 months)).

Compensation by the employee for damage caused to the employer

Amounts received from an employee as compensation for losses or damages increase the employer’s income tax base. Such income (funds withheld from an employee’s salary) are non-operating (clause 3 of Article 250 of the Tax Code of the Russian Federation).

If an organization considers profit on a cash basis, then income is determined at the time the employee compensates for the damage caused to the employer and in the amount of deductions from wages (clause 2 of Article 273 of the Tax Code of the Russian Federation).

When calculating profit using the accrual method, income is determined on the date the employee recognized the loss.

Note!

When paying wages, the total amount of deductions from it cannot exceed 20%.
In some cases provided for by law, the amount of deductions can reach up to 50% of the employee’s salary (Article 138 of the Labor Code of the Russian Federation). It is impossible to completely deprive an employee of his salary to repay the damage he has caused. If compensation for damage is made in court, then the date of receipt of income is the day the court decision enters into legal force (clause 4, clause 4, article 271 of the Tax Code of the Russian Federation).
The court decision comes into force 10 days after its adoption, unless appealed by the parties (Article 321 of the Code of Civil Procedure of the Russian Federation). For simplifiers, the amount of funds received in compensation for damage will also increase the tax base. The amount of compensation for damage from the employee should be taken into account on the date of receipt of funds to the current account and (or) to the organization’s cash desk (clause 1 of Article 346.17 of the Tax Code of the Russian Federation).

Damage recovery procedure and special commission

If damage is detected, the employer is obliged to establish its size and cause (Article 247 of the Labor Code of the Russian Federation). In accordance with this article, before making a decision on compensation for damage by specific employees, the employer is obliged to conduct an inspection to establish the amount of damage caused and the reasons for its occurrence.

To conduct such a check, the employer has the right to create a commission with the participation of relevant specialists.

In the order to create a commission, drawn up in any form and signed by the head of the organization, positions and full names should be indicated. all inspectors, as well as the period within which they must complete the inspection.

The special commission must establish and confirm:

— the exact amount of damage;

— the possibility of bringing a specific employee to financial responsibility.

Written explanation from the employee

To establish the cause of damage, employees using damaged (destroyed) property must provide a written explanation, indicating all the circumstances of the incident. In case of refusal or evasion of the employee from providing this explanation, a report is drawn up.

If an employee of an enterprise does not admit his guilt in causing damage or refuses to compensate for it, then the organization should go to court.

Tax accounting and income tax

Amount of compensation for losses or damages and non-operating income

Art. 251 of the Tax Code defines a list of income that is not taken into account when calculating the tax base for corporate income tax. This list is closed.

According to Art. 250 of the Tax Code of the Russian Federation, non-operating income includes income that is not revenue from the sale of goods (work, services). In accordance with paragraph 3 of the same article, non-operating income includes, among other things, the organization’s income in the form of amounts of compensation for losses or damage.

Date of receipt of income in the form of amounts of compensation for losses (damage)

The date of receipt of income in the form of amounts of compensation for losses (damage) is the date of recognition by the debtor (the guilty party) or the date of entry into force of the court decision (subclause 4, clause 4, article 271 of the Tax Code of the Russian Federation).

Lost or damaged property due to the employee’s fault and non-operating expenses

At the same time, the organization has the right to take into account losses caused by the employee when forming the corporate income tax base.

Thus, it is possible to recognize the cost of lost property (reimbursable by the employee) as part of non-operating expenses on the basis of subclause. 20 clause 1 art. 265 of the Tax Code of the Russian Federation (as other justified expenses).

This position is supported by financiers (see Letter of the Ministry of Finance of Russia dated August 27, 2014 No. 03-03-06/1/42717).

In this case, the following conditions must be met:

• the amount of damage is compensated by the employee;
• the costs incurred by the organization in connection with damage caused to it correspond to the criterion set out in paragraph 1 of Art. 252 of the Tax Code of the Russian Federation (that is, they are justified, documented, carried out to carry out activities aimed at generating income).

This point of view is set out in Letters of the Ministry of Finance of Russia dated July 23, 2018 No. 03-03-07/51352, dated January 15, 2018 No. 03-03-06/1/1023, dated April 25, 2016 No. 03-03-06/1/23667 .

Value added tax

The operation of writing off property that has become unusable due to the fault of the employee is not a sale in accordance with clause 1 of Art. 39 and art. 146 of the Tax Code of the Russian Federation and is not subject to VAT, provided that the company documents the reasons and circumstances for writing off property from the company’s balance sheet (Letter of the Ministry of Finance of the Russian Federation dated July 23, 2018 No. 03-03-07/51352, clause 10 of the Resolution “On some issues arising in arbitration courts when considering cases related to the collection of value added tax" dated May 30, 2014 No. 33).

Compensation by an employee for damage caused to the company is also not related to sales and, therefore, is not subject to VAT under Art. 146 of the Tax Code of the Russian Federation (clause 10 of the Letter of the Ministry of Finance of Russia dated October 7, 2008 No. 03-03-06/4/67).

Restoration of VAT previously legally accepted for deduction on lost or damaged property is not provided for in clause 3 of Art. 170 of the Tax Code of the Russian Federation, which contains a closed list of cases of tax restoration (this follows from the Letter of the Federal Tax Service of Russia dated May 21, 2015 No. GD-4-3 / [email protected] and is confirmed by examples from arbitration practice in favor of taxpayers).

Examples from judicial practice

Decision of the Supreme Arbitration Court of the Russian Federation dated October 23, 2006 No. 10652/06. The court declared para. 13 of section “For the purpose of applying Article 171 of the Tax Code of the Russian Federation” of the Appendix to the Letter of the Federal Tax Service of Russia dated October 19, 2005 No. MM-6-03/ [email protected] and indicated that Art. 170 of the Tax Code of the Russian Federation does not provide for the restoration of VAT previously accepted for deduction in cases of theft of goods or their shortage discovered during the inventory process.

Contains similar conclusions:

• Resolution of the Federal Antimonopoly Service of the Moscow District dated November 16, 2010 No. KA-A40/13770-10 in case No. A40-17811/10-127-67;
• Resolution of the Federal Antimonopoly Service of the Moscow District dated January 13, 2009 No. KA-A40/12259-08 in case No. A40-1983/08-115-7;
• Resolution of the Federal Antimonopoly Service of the Ural District dated October 19, 2011 No. F09-6671/11 in case No. A60-3181/2011;
• Resolution of the Arbitration Court of the Central District dated February 24, 2016 No. F10-43/2016 in case No. A09-4959/2015.

The court indicated that the shortage of goods established during the inventory carried out by the tax authority, among the cases listed in paragraph 3 of Art. 170 of the Tax Code of the Russian Federation, does not apply. Thus, the mere fact of disposal of property from circulation is not enough to restore VAT, since in accordance with sub. 2 p. 3 art. 170 of the Tax Code of the Russian Federation, the tax previously accepted for deduction must be restored if the fact of use of this property in transactions not subject to taxation is proven.

Reinstatement of VAT only on the grounds that the disposed property is not used in transactions subject to VAT is not based on the law. The court took into account the position of the Supreme Arbitration Court of the Russian Federation, reflected in the Decisions of October 23, 2006 No. 10652/06 and of May 19, 2011 No. 3943/11.

By Resolution of the Federal Antimonopoly Service of the Moscow District dated December 25, 2013 No. F05-16440/2013 in case No. A40-34818/13, the court indicated that clause 3 of Art. 170 of the Tax Code of the Russian Federation contains an exhaustive list of circumstances under which the taxpayer is obliged to restore the VAT accepted for deduction. There is no basis for VAT restoration such as loss of goods.

The following example is the Resolution of the Federal Antimonopoly Service of the Moscow District dated October 4, 2013 in case No. A40-149597/12. The court indicated that the taxpayer should not recover VAT in the event of write-off of expired goods, as well as in the event of its theft or shortage discovered during the inventory process.

FAS agreed with the conclusions of the lower authorities, which, taking into account the provisions of sub. 2 p. 3 art. 170 of the Tax Code of the Russian Federation made the correct conclusion that the taxpayer has no grounds for restoring the VAT amounts previously accepted for deduction. The court noted that these conclusions are consistent with the Decisions of the Supreme Arbitration Court of the Russian Federation dated October 23, 2006 No. 10652/06 and No. 3943/11 dated May 19, 2011.

Application of PBU 18/02

The amount of compensation for damage caused is recognized as income for profit tax purposes, and in accounting it is included in settlements with the employee.

As a result, a permanent difference arises and a corresponding permanent tax liability (clauses 4, 7 of the Accounting Regulations “Accounting for calculations of corporate income tax” PBU 18/02, approved by Order of the Ministry of Finance of Russia dated November 19, 2002 No. 114n).

In turn, the cost of missing products, which is compensated by the employee, is recognized as a non-operating expense in tax accounting and is not included in accounting expenses. In this case, a permanent difference and a corresponding permanent tax asset arise (clauses 4, 7 of PBU 18/02).

Since these permanent differences and the corresponding permanent tax liability and permanent tax asset arise in the same amounts and in the same reporting period, based on the requirement of rationality established by clause 6 of the Accounting Regulations “Accounting Policy of the Organization” (PBU 1/2008), approved By Order of the Ministry of Finance of Russia dated October 6, 2008 No. 106n, in my opinion, the organization has the right not to reflect them.

Example 1

Due to the fault of the employee, there was damage to the goods, the cost of which was 10,000 rubles. (excluding VAT). The product cannot be restored; its cost is reimbursed by deduction from the employee’s salary. The average salary of an employee is equal to the amount of the monthly salary and is 60,000 rubles.

The organization keeps records of goods at the cost of their acquisition. The amount of VAT presented to the organization by the seller of the goods was generally accepted for deduction.

For profit tax purposes, the organization uses the accrual method.

Let's carry out the necessary calculations. Since the salary of an employee of an enterprise is 60,000 rubles, the employer will be able to deduct no more than 10,440 rubles from his salary every month. ((RUB 60,000 – (RUB 60,000 × 13%)) × 20%). In this case, the amount of damage caused by the employee (RUB 10,000) will be reimbursed for one month.

In the accounting of a trade organization, the deduction from an employee’s salary of the amount of compensation for material damage caused by him should be reflected as follows:

1) debit 94 credit 41

• 10,000 rub. (the cost of the damaged goods is written off);

2) debit 73-2 credit 94

• 10,000 rub. (the amount of damage is included in settlements with the guilty person - the employee);

3) debit 70 credit 73-2

• 10,000 rub. (represents compensation for damage caused from the employee’s salary).

If the organization refuses to collect compensation for damage caused from the employee

By virtue of Art. 240 of the Labor Code, taking into account the specific circumstances in which the damage was caused, the employer has the right to fully or partially refuse to recover damages from the guilty employee.

For example, the amount of material damage from a shortage identified during an inventory is partially compensated by the guilty employee; for the rest, the employing organization decides to write off the shortage at the expense of the organization.

Here are the questions:

• Is the amount of damage caused the employee's income?
• In this case, should the employer withhold personal income tax from the amount of write-off of the shortfall caused by the employee’s fault at his own expense?
• In this case, is the organization obliged to calculate insurance premiums from these amounts?

There are several things to consider when answering these questions.

According to Art. 41 of the Tax Code of the Russian Federation, income is recognized as an economic benefit in cash or in kind, taken into account if it is possible to evaluate it and to the extent that such benefit can be assessed, and determined for individuals in accordance with Chapter 23 “Income Tax for Individuals” of the Tax Code of the Russian Federation .

According to Art. 238 of the Labor Code of the Russian Federation, the employee is obliged to compensate the employer for direct actual damage caused to him. At the same time, Art. 240 of the same Code provides that the employer has the right, taking into account the specific circumstances in which the damage was caused, to fully or partially refuse to recover it from the guilty employee.

Thus, in accordance with labor legislation, the specific amount of damage due to compensation by the employee is established by the employer.

In this regard, the employee does not receive economic benefit and, accordingly, taxable income in the form of the amount of direct actual damage, which the employer refused to collect from the employee.

Therefore, if the employer refuses to recover from the employee the damage caused, the subject of personal income tax does not arise (Letter of the Ministry of Finance of Russia dated October 20, 2017 No. 03-04-06/68917).

Further, the object of taxation with insurance contributions for organizations is payments and other remuneration in favor of individuals subject to compulsory social insurance on the basis of federal laws on specific types of compulsory social insurance, in particular, within the framework of labor relations (subclause 1, clause 1, article 420 of the Tax Code RF).

By refusing to collect compensation from the guilty employee for damages caused to the organization, the employer does not make any payments or other remuneration in favor of the employee.

Consequently, the organization’s expenses for compensation from its own funds for material damage from shortages caused by the employee’s fault are not subject to insurance premiums, since they do not relate to the object of taxation of insurance premiums established by subsection. 1 clause 1 art. 420 Tax Code of the Russian Federation.

Thus, if the employer refuses to recover damages from the employee, the subject of personal income tax and insurance contributions does not arise.

Single tax under a simplified taxation system

In accordance with Art. 346.15 of the Tax Code of the Russian Federation, a taxpayer applying a simplified taxation system, when determining the object of taxation, takes into account income from sales determined in accordance with Art. 249 of the Tax Code of the Russian Federation, and non-operating income determined in accordance with Art. 250 of the said Code.

When determining the object of taxation, the income specified in Art. 251 Tax Code of the Russian Federation.

Based on the provisions of paragraph 3 of Art. 250 of the Tax Code of the Russian Federation, non-operating income is recognized as income in the form of fines, penalties and (or) other sanctions for violation of contractual obligations recognized by the debtor or payable by the debtor on the basis of a court decision that has entered into legal force, as well as amounts of compensation for losses or damage.

Taking into account the above, if a company applies a simplified taxation system with the object “income minus expenses”, then the amount of damage compensated by the employee must be taken into account as part of non-operating income as they are deducted from the employee’s salary (clause 1 of article 346.15, subclause 2 of clause 1 Article 248, paragraph 3, part 2, article 250, paragraph 1, article 346.17 of the Tax Code of the Russian Federation).

Such grounds as writing off lost or damaged property due to the fault of the employee and “input” VAT on such property in the closed list of expenses taken into account when applying the simplified taxation system established by paragraph 1 of Art. 346.16 of the Tax Code of the Russian Federation, not contained.

Consequently, the organization has no basis for accounting for the costs of acquiring lost or damaged property and the “input” VAT on it for tax purposes when applying the simplified taxation system (Letter of the Ministry of Finance of Russia dated May 12, 2014 No. 03-11-06/2/22114).

Application of PBU 18/02

Due to the fact that the amount of damage in accounting is included in expenses, but is not taken into account for profit tax purposes, a permanent difference and a corresponding permanent tax liability arise in the organization’s accounting (clauses 4, 7 of the Accounting Regulations “Accounting for Calculations on corporate income tax" PBU 18/02, approved by Order of the Ministry of Finance of Russia dated November 19, 2002 No. 114n).

The permanent tax liability is reflected by an entry in the debit of account 99 “Profits and losses” and the credit of account 68 “Calculations for taxes and fees” (Instructions for using the Chart of Accounts).

Example 2

A shortage of materials in the amount of 20,000 rubles was identified at the warehouse. The warehouse manager of the organization admitted his guilt. The average salary of an employee is equal to the amount of the monthly salary and is 70,000 rubles.

The accounting of goods in the organization is carried out at the cost of their acquisition. The organization applies a simplified taxation system with the object “income minus expenses”.

Let's carry out the necessary calculations. Since the salary of an employee of an enterprise is 70,000 rubles, the employer will be able to deduct no more than 12,180 rubles from his salary every month. ((RUB 70,000 – (RUB 70,000 × 13%)) × 20%).

In this case, the amount of damage caused by the employee (20,000 rubles) will be compensated for two months. In this case, the amount of the last deduction will be 7,820 rubles. (RUB 20,000 – RUB 12,180).

In the accounting of a trade organization, the deduction from the employee’s salary of the amount of compensation for material damage caused by him should be reflected twice.

1) In the month the shortage was identified:

• debit 94 credit 10 - 20,000 rub. (the cost of the damaged goods is written off);
• debit 73-2 credit 94 - 20,000 rub. (the amount of damage is included in settlements with the guilty person - the employee);
• debit 99 credit 68/PNO - 4,000 rub. (RUB 20,000 × 20%) - a permanent tax liability is reflected;
• debit 70 credit 73-2 - 12,180 rub. (represents compensation for damage caused from the employee’s salary).

2) Next month:

• debit 70 credit 73-2 - 12,180 rub. (represents compensation for damage caused from the employee’s salary).

Back

Forward

Causing damage to the company by unknown persons

In some cases, the person who caused damage to the company remains unknown. In this case, losses may reduce the organization’s income tax base.

The cost of lost (stolen, broken, damaged, destroyed) property can be included in non-operating expenses in full. The main thing here is to confirm the absence of guilty persons with a document issued by an authorized authority (letter of the Ministry of Finance of the Russian Federation dated October 6, 2017 No. 03-03-06/1/65418).

Organizations using the simplified tax system take into account expenses in accordance with the list from clause 1 of Art. 346.16 Tax Code of the Russian Federation. Expenses in the form of theft of property are not included in the list. Consequently, expenses in the form of theft are not taken into account when determining the tax base for the simplified tax (letter of the Ministry of Finance of the Russian Federation dated December 19, 2016 No. 03-11-06/2/76035).

As for VAT, when property is stolen, a taxable object does not arise (clause 1, clause 1, article 146 of the Tax Code of the Russian Federation). The owner of the valuables changes, but the transfer of ownership of the property does not occur, therefore such disposal of property is not its sale (Article 39 of the Tax Code of the Russian Federation).

Meanwhile, paragraph 10 of the Resolution of the Plenum of the Supreme Arbitration Court dated May 30, 2014 No. 33 states that the fact of theft or other disposal of property without transferring it to third parties must be documented, as required by paragraph 1 of Art. 54 Tax Code of the Russian Federation. Otherwise, the company will have to calculate and pay VAT to the budget according to the rules of clause 2 of Art. 154 of the Tax Code of the Russian Federation, as if the company had transferred this property to the thief independently in the form of a gift or in exchange.

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