Payment of bonus upon dismissal at one's own request

The dismissal of an employee, according to the Labor Code of the Russian Federation (Article 140), is accompanied by a full settlement with him. All amounts due must be paid on the date of termination. However, there are always many questions regarding bonus payments. At the time of dismissal, the amount of the bonus may not yet be determined. How to calculate dismissal pay in this case? Is it necessary to pay a bonus to an employee who no longer intends to work for the organization? A bonus is an incentive payment. Does it make sense to use it in this case? How to avoid breaking the law and sanctions from regulatory authorities?

Question: Is it legal to include in the organization’s remuneration regulations a condition that employees who quit voluntarily receive a bonus for the current period at the discretion of the manager? View answer

General issues of bonuses for resigning employees

Forms of remuneration in an organization, the system of this payment (SOT) can include not only payments for the performance of their duties by employees, but also be of an incentive, bonus nature. The payment of bonuses is regulated by all-Russian legislation and local regulations relating to labor relations (LRA).

The Labor Code does not consider bonus issues in detail, indicating only that in the event of controversial situations, the employer must pay the employee an undisputed amount. To avoid problematic issues, bonuses and their payment are described in detail in the organization’s regulatory documents. The procedure for calculating and paying bonuses in the organization is prescribed:

• in a collective agreement;
• in the employment contract (agreement) with the employee;
• in the Regulations on remuneration;
• in orders and regulations on individual bonuses for individual employees.

It is advisable to reflect the bonus payment procedure in the individual agreement of the parties, while at the same time specifying detailed conditions for such payments in the collective agreement or Regulations.

All bonus amounts due to the employee according to regulatory documents must be paid upon his dismissal. The amounts of accrued bonuses are included in the amount of dismissal payments (for example, compensation for unused vacation), in accordance with the current government Decree No. 922 of 12/24/07 on average earnings. According to Federal Law No. 272 ​​and subsequent clarifications of the Ministry of Labor (see Letter No. 14-1/B-800 dated 08/23/16), payment of bonuses must be completed no later than the 15th day after the period for which it was accrued, and LNA must contain appropriate wording regarding deadlines.

How to arrange payment of a bonus to an employee after his dismissal ?

What benefits should be given to a dismissed employee?

After dismissal, the dismissed employee is entitled to the following payments:

• salary for actual days worked (Article 139 of the Labor Code of the Russian Federation);
• compensation for unused vacation (Article 127 of the Labor Code of the Russian Federation);
• severance pay (Article 178 of the Labor Code of the Russian Federation);
• bonus (depending on the presence of a bonus clause in the employment contract or local regulatory act of the enterprise).

The issuance of all necessary documents (work book, pay slip, salary certificate, certificates of paid taxes and contributions) and the final payment are carried out by the employer on the day of dismissal of the employee.

Some unscrupulous employers may deny employees the legally required payments upon termination of a trade union. Read about what to do if your salary is not paid, and how to make a written demand and file a claim for its recovery, whether to count on it if you are dismissed under an article, what to do if you have not been paid compensation for unused vacation, and also what compensation is due for delay in payments.

Premium accounting

Accounting for bonuses to a dismissed employee is kept in the accounts for wages, other payments and those corresponding to them. The bonus is calculated on the debit of production and similar accounts: D 20, 23, 25, 26, 44, etc. K 70.76 . Payment is made in the usual manner, through a cashier or bank: D 70, 76 K 50.51 .

Annual and quarterly bonuses are subject to personal income tax (Article 208-1 of the Tax Code of the Russian Federation) and are reflected by the posting: Dt 70, 76 Kt 68/NDFL .

On a note! There is Art. 217-7 of the Tax Code of the Russian Federation, which contains a mention of non-taxable bonuses (for example, for outstanding achievements in science or cultural activities), in addition, bonuses of 4,000 rubles or less specified in Art. 217-28 Tax Code of the Russian Federation.

The inclusion of bonus payments not specified in the LNA in the calculation of income tax to reduce the base is illegal (Article 270-21 of the Tax Code of the Russian Federation). Premiums are subject to insurance charges, according to Art. 420 Tax Code of the Russian Federation, Art. 20.1-1 Federal Law No. 125 dated July 24, 1998. Costs for them are recorded as standard: Dt 20, 23, etc. K69 (according to accounting subaccounts) .

Arbitrage practice

The Krasnoglinsky District Court considered the claim from the plaintiff I.A. Belugina, who stated that upon dismissal from her employer, a full payment was not made to her. The plaintiff’s claim was that, having resigned on February 14, 2021, she received on the payday only wages and compensation for unused vacation, and the due bonus for the fourth quarter of 2021 was not awarded to her. On this basis, she demanded not only the crediting of bonus incentives, but also a penalty for late payment.

The defendant presented the Bonus Regulations, which clearly set out the procedure for issuing quarterly bonuses.
In accordance with the Regulations, incentives for the past quarter are accrued until the middle of the second month following the end of the quarter. And the transfer of funds is made until the end of the next quarter. Thus, the deadlines for payment of the bonus were not violated, and therefore the claims regarding the accrual of penalties were rejected. Decision of May 24, 2021 in case No. 2-850/2017

The employee quits, and the amount of the bonus has not yet been determined

If the size of the bonus is known at the time of dismissal, the accounting accountant does not have any problems; he includes it in the calculation of dismissal amounts. If the amount of bonuses is not determined at the time of dismissal, you should recalculate later and adjust the amount due to the former employee. It is obligatory to make an additional payment, recording its receipt by the employee in any legal way. Otherwise, there is a high probability of going to court. The timing of payment of bonuses to employees after their dismissal must be prescribed by the LNA (Article 8 of the Labor Code of the Russian Federation) - Regulations on Labor Protection, bonuses, etc. The specified position is contained in Letters of the Ministry of Finance, for example, No. 03-03-04/1/294 dated 25-10 -05, recommendations of Razgulin S.V., state adviser 3rd class, arbitration judicial practice.

How is a bonus paid to an employee after dismissal taxed ?

Grounds for dismissal and bonuses

Labor relations are terminated not only at the initiative of the employee. All legal grounds for dismissal are listed in the Labor Code of the Russian Federation. How does the reason for dismissal affect bonuses for former employees?

On their own initiative

There are no exceptions. A cash bonus for voluntary dismissal is calculated according to three key rules:

1. The employer guaranteed bonuses in a local act.
2. The bonus period has been completed (in whole or in part).
3. The planned indicators were met, and the results of work were achieved.

If the mandatory conditions are not met, then the employer has every right not to include the former subordinate in the order for the payment of bonuses and to pay bonus money to the employee who did not fulfill the plan before dismissal.

It is not necessary to give a bonus to an employee for the 2nd quarter of the year if during the period he was on sick leave and then quit. But such a specialist is entitled to an annual bonus upon dismissal. The calculation should take into account the time worked for the 1st quarter of the year. But again, provided that such payment is specified in the wage regulations.

By agreement of the parties

When terminating an employment contract by agreement of the parties, it is recommended to indicate a list of bonus payments due to the employee. The amount is determined by agreement. If a subordinate is entitled to a quarterly bonus upon dismissal, but he quits before the end of the billing quarter, the payment is reflected in the additional agreement and is accrued along with the final payment.

If the employee indicated in the agreement to terminate the employment contract that he has no material claims against the employer and the bonus was not included in the list of payments due, then the employer is not obliged to provide a bonus to the employee after dismissal.

At the initiative of the employer

The basis for termination of the contract at the will of the employer is violation of labor discipline by the subordinate. In such a situation, the issue of bonuses is especially acute. Agree, the concepts do not fit in any way: bonuses, fame, honor, dismissal under the article.

Let's turn to the definition of bonus payments. This is an incentive payment for conscientious performance of job duties and functions. If labor discipline is violated, there can be no talk of conscientious work. It would seem that everything is extremely simple. But that's not true.

Let us recall that the employer has the right to specify in local regulations the grounds for deprivation of bonuses (for example, violation of labor discipline). Consequently, the employer did not pay the dismissal bonus under the article legally. But if there is no such condition in the provision, there is no reason for refusal.

Let’s say this situation: fireman Ivanov A.P. worked at PRIMER LLC for the period from 01/01/2020 to 03/31/2020. For systematic absenteeism, dismissed under paragraphs. “a” clause 6, part 1, art. 81 Labor Code of the Russian Federation.

According to the regulations on remuneration at LLC "PRIMER", a quarterly bonus is provided for the time actually worked. The regulations do not provide for any conditions regarding the deprivation of bonuses for disciplinary offenses. There is also no provision prohibiting an employee from receiving bonuses after dismissal. Consequently, the company is obliged to accrue and pay a bonus to fireman Ivanov for the 1st quarter of 2021.

Mistakes and Consequences

Errors that arise during the calculation of bonuses can be divided into 3 categories:

• arithmetic;
• arising as a result of incorrect application of established calculation rules;
• relating to tax accounting.

The latter have already been discussed: they arise, for example, if a premium that is not legally fixed is included in the calculation of the income tax base in order to reduce it. Such actions are considered by the Federal Tax Service as a reason to apply fines and sanctions when checking payments.

Accounting errors lead to incorrect payment of funds to the former employee during settlement. An underestimated amount of the bonus can be recalculated and an additional payment made, while an overestimated amount of the bonus paid represents a problem for the organization, since it can be resolved in court. According to Art. 137 of the Labor Code of the Russian Federation, the overpaid amount can be withheld from an employee, but the specified citizen is not actually an employee. In addition, the already mentioned Art. 140 of the Labor Code of the Russian Federation speaks of the possibility for an employee to challenge the amounts paid. It is therefore advisable to resolve this dispute out of court.

Errors of a different nature, in addition to arithmetic, that overstate bonus payments to a dismissed employee, are resolved only at the expense of the organization (Civil Code of the Russian Federation, Art. 1109). In any case, the court will be on the side of the dismissed citizen.

Question: Are the costs of paying a bonus to a dismissed employee taken into account for income tax purposes if the order assigning a bonus is issued and signed after the dismissal? View answer

To give a bonus to the fired person or not?

When developing and approving the regulations on bonuses, the employer has the right to establish special conditions for the assignment of payments. Depending on the wording of the regulations on bonuses, they determine whether a bonus can be awarded to a dismissed employee in a given situation (and they can be different).

Please refer to local regulations:

But there are exceptions to the rules. The employer has the right to order the payment of bonuses to a former subordinate. Even if the organization does not have a bonus provision. For example, issue an order for a one-time incentive. Although such situations are extremely rare.

Please note that one-time bonuses are not always allowed to be taken into account for tax purposes as labor costs.

Is it possible not to pay a bonus upon dismissal?

All grounds for which the premium is paid must be specified in local acts agreed upon by each other. If there are vague formulations or contradictions, the emergence of a conflict in the event of a refusal to pay a bonus to a resigning employee is inevitable. Thus, the wording: “The manager has the right to pay incentive payments to employees - bonuses” is not obligatory for payment, and the phrase “The manager must pay bonuses” fixes the mandatory nature of such payments.

Cases of deprivation of a bonus in the LNA must also be clearly stated. Every employee must be familiar with the labor regulations adopted by the organization. Consent must be recorded with his signature.

Failure to pay the bonus specified in the LNA to a dismissed employee on the basis of a disciplinary sanction is not recommended. If you go to court, most likely, such a decision by the organization’s management will be declared illegal.

On a note! The period for going to court is 3 months from the moment the employee became aware of a violation of his rights, i.e. from the date of receipt of settlement amounts from the organization.

Is a bonus paid upon termination of an employment contract?

Receiving a prize does not always mean that a person has received well-deserved fame and honor. Most often, a bonus is a pleasant regular or one-time addition to the salary of an ordinary employee. To whom, according to Article 140 of the Labor Code of the Russian Federation, in the event of early termination or expiration of the employment contract, all due payments must be paid: wages and possible compensation. The answer to the question of whether a bonus can be paid after the dismissal of an employee largely depends on the decision of the employer and is regulated by internal regulations and other documents of the organization. According to Art. 135 of the Labor Code of the Russian Federation, such documents are:

• regulations on remuneration of employees, the text of which specifies the possibility of employees receiving incentives;
• collective agreement;
• an employment contract establishing incentives on an individual basis;
• Regulations on employee bonuses. Establishing uniform standards of incentive payments for all employer companies is impossible, therefore each organization develops and prescribes its own incentive system in such provisions.

The last document specifically stipulates the conditions under which a bonus is given, how the bonus is paid upon dismissal at one's own request, and in what situation a person is deprived of the right to receive it. Each employee of the organization upon employment becomes familiar with this provision and signs it.

Main

1. The bonus to the dismissed employee must be paid in the vast majority of cases. Non-payment of bonuses must be recorded in the organization’s local acts relating to labor relations, otherwise legal disputes with the former employee are likely, not in favor of the organization.
2. Errors made in the direction of overestimating payments to a dismissed person can be corrected at the expense of the former employee only if they are of an arithmetic nature, in court.
3. Quarterly and annual premiums are subject to personal income tax, insurance premiums and are included in the calculation of income tax only if they are registered in the LNA.
4. Postings reflecting bonus payments are made in a similar way to taking into account wages.

Cash payments upon dismissal

The procedure for terminating an employment relationship is strictly regulated. In general cases, when the initiator was the employer or the employee himself, dismissal is carried out in accordance with a strictly established procedure. The Labor Code of the Russian Federation provides that, regardless of who initiated the termination of labor cooperation, the employer is obliged to make a full settlement with the employee. Full settlement means not only the accrual of required amounts, but also the withholding of the due money. This procedure is legal, since after termination of the contract the parties cease all legal relations and the fact of non-payments or overpayments can only be proven in court.

Upon termination of an employment agreement, the employer must:

1. Accrue: - wages for the period worked, including mandatory additional payments, - bonuses stipulated by the contract, - compensation for days of unused vacation.
2. Subtract from the total calculated amounts: - income tax in the amount of 13%, - amounts withheld according to writs of execution, not more than the established monthly amount, - funds for work clothes, if the employee has lost it or does not want to return it, - other money withheld at the request of the employee from his salary.

The difference between the accrued funds and the withheld funds must be given to the dismissed person or transferred to a bank card no later than the day of his dismissal.

Annual bonus and taxes

Annual bonuses will reduce the income tax base if their payment is specified in the employment agreement. Prizes are subject to contributions to extra-budgetary funds. The percentage of contributions will depend on the date of accrual of the annual remuneration and the size of the tax base. Contributions to funds from annual premiums are shown in the table.

The table shows that accruing bonuses at the end of the year is more economical than next year, provided that there is an excess of the tax base.

Errors in calculation and accrual, employer's responsibility

When paying a bonus to an employee after dismissal, he may be paid either less or more money than expected. As a rule, this happens due to incorrect calculations by the accounting department.

If the employee received less than the required amount, the employer can make another payment . However, in this case, insurance and tax will be paid in two payments.

If the company has paid excess funds and the employee does not want to return them, justice can only be restored through the courts. In this case, you will have to prove the mistake made by the accountant in the calculations.

If the situation is the opposite, and the employer completely refuses to pay the due bonus after dismissal, he must remember the liability that he may incur for non-payment (according to parts 1 and 2 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation).

Expert opinion

Irina Vasilyeva

Civil law expert

Before going to court, it is advisable for the employee to try to resolve the issue peacefully.