I am familiar with the order, I agree with the content

If the manager intends to forgive the employee for the amount of damage caused to the company for any reason that he considers valid, he can issue an order to release the employee from liability and Art. 240 of the Labor Code of the Russian Federation.

TELLING THE MANAGER

Even the culprit is ready to voluntarily compensate for the damage, it is necessary to issue an order for its recovery within a month from the date of detection of damage.

True, the Ministry of Finance believes that in such a situation, the employee has income in kind e Letters of the Ministry of Finance dated 12.04.2013 No. 03-04-06 / 12341, dated 08.11.2012 No. 03-04-06 / 10-310. Therefore, you will need to calculate personal income tax at a rate of 13% on the difference between the amount of the debt forgiven to the employee and 4,000 rubles. (reduced amount) paragraph 28 of Art. 217, art. 224 Tax Code of the Russian Federation and withhold tax at the next payment of income to the employee in cash. The absence of the need to withhold personal income tax from the debt forgiven to the employee you will have to prove in court Decree of the FAS ZSO dated December 30, 2013 No. A27-9551 / 2012. In addition, it is safer to accrue insurance premiums to funds from such income.

It is better not to issue a debt forgiveness to an employee, that is, not to issue an order for release from liability. You can simply write off this amount after a year from the moment the damage was discovered due to the impossibility of recovering Art. 392 of the Labor Code of the Russian Federation.

We collect damages not exceeding the average earnings of the perpetrator

With each salary payment, you can withhold in compensation for damage no more than 20% of the amounts accrued to the employee minus personal income tax Art. 138 of the Labor Code of the Russian Federation; Part 1 Art. 99 of the Law of October 2, 2007 No. 229-FZ (hereinafter - Law No. 229-FZ).

If the employee wants to voluntarily pay off the debt, then you can:

• provide for any sizes of deductions. For example, at a time to withhold the entire amount of damage in excess of 20% of the average salary of an employee;
• agree on any terms, form and method of payment of the debt. For example, to determine whether the debt will be repaid at a time or in installments, the employee will deposit money into the organization’s cash desk or credit it to its account, or you will withhold the debt from his salary in any amount agreed with the manager. In addition, you can agree with the employee on compensation for damages not in cash, but in kind. Suppose he transfers in return for damaged (lost) property:

• <или>other equivalent property or repairs the damaged one;
• <или>property of a lower value than the damaged (lost), and pays the rest of the damage in cash.

An agreement with an employee on the voluntary repayment of his debt can be drawn up in different ways. For example, he can write the following on the order (order) for recovery.

Acquainted with the order.

I undertake to compensate the damage in the amount of 32,565 (thirty-two thousand five hundred and sixty-five) rubles. in the following order: depositing 10,000 rubles into the cashier's office. until March 10, 2014, 10,000 rubles. until April 25, 2014, RUB 12,565 until May 31, 2014

Or you can conclude a separate agreement, ask the employee to write a receipt or statement. For example, if he is going to give away his property to pay off a debt, the application may look like this.

to CEO
Telemania LLC P.R. Alyoshin
from manager R.O. Zabyvaeva

I don't mind
A manager's visa is enough, no separate order needs to be issued

Statement

I, Rodion Olegovich Zabyvaev, undertake to transfer Telemania LLC by March 4, 2014 Let the worker indicate the term for repayment of damages mobile phone Nokia C2-01 worth 3100 rubles. on account I lost my Nokia C2-02 phone with a residual value of 3500 rubles. Let the employee indicate the reason for the recovery of damages and its amount

If the employee undertook to compensate for the damage voluntarily, but quit before the full repayment of the debt and refused to pay the debt, you can recover its balance only in court Art. 248 of the Labor Code of the Russian Federation. None of the payments due to the employee upon dismissal (say, vacation pay for unused days leave), without his consent, it is impossible to withhold at a time the outstanding amount of damage in excess of 20% of such payments.

When an employee quits, refusing to pay the full amount of the debt, the employer must:

• issue an order to dismiss an employee;
• give him a work book and calculate it.

If the employer delays issuing work book and this will prevent the employee from finding a job, he has the right to appeal in court the delay in processing the dismissal. And the court can oblige the company to pay the employee the average earnings for the entire period of delay in issuing a work book to him.

We recover the amount of damage through the court

You will have to go to court if:

• <или>the amount of recoverable damage is more than the average monthly salary of the employee;
• <или>the head did not issue, within a month from the date of registration of the results of the internal audit, an order to withhold the amount of damage from the salary;
• <или>the employee left the company before the full repayment of the debt withheld from his salary by order of the head.

TELLING THE MANAGER

Go to court for damages possible even if the statute of limitations has passed. But if the employee claims in court that the employer has missed such a deadline, and the court does not recognize the reason for the missed time as valid, the companies will simply dismiss the claim. clause 3 of Resolution No. 52.

The employer has only 1 year Art. 392 of the Labor Code of the Russian Federation:

• <или> from the date the damage was discovered(for example, this is the date of the memorandum on damage to property, the date of the inventory list);
• <или> from the date the employer discovers a violation of his right to compensation damage (for example, when paying the amount of damage in installments - from the date when the employee was supposed to make the next payment, but did not make it) Definition of the Armed Forces of July 30, 2010 No. 48-B 10-5; Appeal decision of the Court of the Khanty-Mansiysk Autonomous Okrug - Yugra dated 16.07.2013 No. 33-2894/2013.

STEP 1. In writing, offer the employee to pay damages voluntarily Art. 248 of the Labor Code of the Russian Federation.

For example, you can make such an appeal.

Limited Liability Company "Your comfort"

Voluntary compensation offer

Moscow city

To: Ochumeloruchkin Naum Valerianovich

Reason: Order No. 12 dated February 5, 2014 on the recovery of the amount of damage

You caused damage to the property of Vash Uyut LLC in the amount established on the basis of the conclusion of the commission dated January 23, 2014 No. 1.

We offer you to voluntarily compensate Vash Uyut LLC for damages in the amount of 32,565 (Thirty-two thousand, five hundred and sixty-five) rubles.

I voluntarily refuse to compensate for the damage If the employee does not want to reimburse the damage voluntarily, have your written request write a refusal to voluntarily repay Art. 248 of the Labor Code of the Russian Federation

STEP 2. To file a lawsuit, pay the state fee and prepare a package of documents.

The amount of the state duty amounts to the amount of recoverable damage a sub. 1 p. 1 art. 333.19 of the Tax Code of the Russian Federation:

• up to 20,000 rubles - 4% of the price of the claim, but not less than 400 rubles;
• from 20 001 rub. up to 100,000 rubles - 800 rub. + 3% amounts exceeding 20,000 rubles;
• from 100 001 rub. up to 200,000 rubles - 3200 rub. + 2% amounts exceeding 100,000 rubles;
• from 200 001 rub. up to 1,000,000 rubles - 5200 rub. + 1% amounts exceeding 200,000 rubles;
• over 1,000,000 rubles. - 13 200 rub. + 0.5% amounts exceeding 1,000,000 rubles, but not more than 60,000 rubles.

It includes:

• internal audit materials confirming the fact of damage caused by the employee and its amount;
• employment contract with the guilty employee. If damage is recovered from an employee who quit before the employer fully withholds the amount of damage, then orders are also needed to withhold damage from the salary and dismiss this employee;
• reference from the accounting department on the average monthly earnings of the employee;
• a written proposal to the employee to compensate for the damage voluntarily;
• receipt of payment of state duty, the amount of which depends on the amount of damage recovered.

STEP 3. If the court decides in favor of your company, then the writ of execution issued to you with an application to initiate enforcement proceedings must be transferred to the bailiff. He will make a decision to initiate enforcement proceedings and give you documents to withhold the amount of the debt from the employee’s salary. articles 12 , , , 98 of Law No. 229-FZ.

TELLING THE EMPLOYEE

Completely free culprit from damages the court cannot, under any circumstances, x clause 16 of Resolution No. 52.

Do not be surprised if in the writ of execution and in the decision of the bailiff you see the amount to be recovered, which differs from the one that took place with you according to the documents of the internal audit and other papers. The court may recover in favor of your company the amount:

• <или> in larger size. Let's say you wanted to recover damages within the average monthly salary of an employee. But during the trial it turned out that the employee caused it not in the performance of his job duties, so he can be held liable in full e Art. 243 of the Labor Code of the Russian Federation. True, in this case, the employer-plaintiff must have time before the court makes a decision on the case to increase the amount of claims and pay additional state fees from Art. 39 Code of Civil Procedure of the Russian Federation;
• <или> in a smaller size taking into account various circumstances (for example, the degree and form of guilt, financial situation employee, the presence of disabled dependents on his maintenance) if you already withhold money from the salary of the employee who caused the damage under any other executive documents, then consider the order of deductions. The claim for damages under the writ of execution belongs to the fourth priority.

  There is payments from which damages cannot be withheld, in particular Art. 101 of Law No. 229-FZ; Art. 138 Labor Code of the Russian Federation:

  • compensation payments due to business trip or in connection with a transfer or assignment to work in another locality;
  • material aid paid, for example, in connection with natural disaster or the death of a relative;
  • maternity allowance.

  Let's assume that an amount of 50% of earnings is already withheld from the employee's salary as compensation for harm caused to health. You will only be able to begin recovering your company's damages from an employee after the health damages debt is paid off.

  But if you have to withhold from the employee’s salary, in addition to compensating for damage to your company, some other amounts of the same queue, then proceed as in the example below.

  Example. Calculation of the amount of deduction from the employee's salary

  / condition / Installation engineer N.V. Ochumeloruchkin refused to voluntarily compensate for the damage to Vash Uyut LLC, which exceeded his average monthly salary. The salary of an installation engineer is 35,000 rubles. per month. The personal income tax rate on the employee's salary is 13%.

  Vash Uyut LLC filed a lawsuit to recover from N.V. Ochumeloruchkina the amount of damage and won the case.

  By order of the bailiff-executor, 30% must be withheld from the employee's salary.

  In addition, from the salary of N.V. Ochumeloruchkin, the money is kept to repay a bank loan in the amount of 40% of the salary.

  / solution / The amount of deductions in this situation is 70% of the salary.

  Therefore, you must satisfy both requirements in proportion to the amounts due to the claimant, but so that the total amount of deductions does not exceed 50% of the monthly salary. Part 2 Art. 99 of Law No. 229-FZ. Act like this.

  1. Calculate personal income tax from salary:

  35 000 rub. x 13% = 4550 rubles.

  2. Determine the amount of salary that can be withheld in damages and loan debt:

  (35,000 rubles - 4,550 rubles) x 50% \u003d 15,225 rubles.

  3. Calculate the amount of the monthly withholding in damages for your company:

  30% / 70% x 15,225 rubles. = 6525 rubles.

  STEP 5. If a the employee-debtor quits before you managed to withhold the entire amount of damage from him, the writ of execution and the decision to initiate enforcement proceedings must be sent to the bailiff. Attach a message in any form indicating the reason for the return of documents and the amounts that you have already withheld from the salary of your debtor.

• <или>issuing an order from the head to recover damages from the employee;
• <или>the entry into force of a court decision on compensation for damages by the employee.

If your manager has agreed with the employee on compensation for damage by contributing property to replace the lost or damaged one, then neither the expense nor the income should be reflected in the accounting. But make sure that the thing received from the employee is comparable in value to the property damaged (lost) through his fault. Make such an act.

Telemania Limited Liability Company

Act No. 1
acceptance and transfer of property from the employee in compensation for damage

Moscow city

From employee R.O. Zabyvaev received a mobile phone on account of his lost Nokia C2-02 phone.

VAT

It is not necessary to charge VAT on the amount of compensation received from the employee, because there is no implementation sub. 1 p. 1 art. 146 Tax Code of the Russian Federation.

It is also not necessary to restore the VAT deduction for the damaged property written off, since there is no such basis for restoring the tax in the Tax Code paragraph 3 of Art. 170 Tax Code of the Russian Federation.

"Demanding" accounting

The following entries must be made in the ledger.

If the employee himself repaired the damaged property, then there is no need to record either the damage or the repair.

You can take into account the amount of the debt forgiven to the employee in accounting in other expenses. This amount must be reflected in the debit of account 91, subaccount 91-2 “Other expenses”, and the credit of account 94 clause 11 PBU 10/99.

In parallel with the material liability of an employee guilty of causing damage to the company, it is possible to bring to disciplinary responsibility and Art. 193 Labor Code of the Russian Federation.

You can immediately dismiss an employee only if he has committed the theft of the company's property, deliberately destroyed or spoiled it, which is confirmed by a court verdict or a decision of the body authorized to consider cases of administrative offenses x sub. "d" paragraph 6 of Art. 81 of the Labor Code of the Russian Federation.

In all other cases of causing material damage to the company, a remark or reprimand can be applied to the guilty employee. Art. 192 Labor Code of the Russian Federation. This must be done so that when an employee commits a second disciplinary offense during the year you could fire him for repeated failure to fulfill his job duties

Any employee in the performance of his duties uses various company property, such as office equipment, equipment, tools, furniture, money, etc.

Therefore, along with the main ones, the duties of the employee include careful attitude to the property of the company entrusted to him (paragraph 7, part 2, article 21 of the Labor Code of the Russian Federation).

Imagine a situation - an employee lost a company laptop. An investigation was carried out, the fault of the employee was established.

Determine the amount of damage

The amount of damage is determined by actual losses on the day of its infliction at market prices. But at the same time, the amount of damage cannot be lower residual value property according to accounting(part 1 of article 246 of the Labor Code of the Russian Federation).

If it is impossible to establish the day of damage, the amount of damage is determined on the day of its discovery (paragraph 2, clause 13 of the decision of the Plenum of the Supreme Court of the Russian Federation of November 16, 2006 No. 52).

When the amount of damage is determined, the employer has the right to involve the employee in (paragraph 6, part 1, article 22 of the Labor Code of the Russian Federation).

Three ways to make amends

• on a voluntary basis (part 4 of article 248 of the Labor Code of the Russian Federation);
• within the scope of their responsibility labor relations(Article 241 of the Labor Code of the Russian Federation);
• forcibly, on the basis of a court decision (parts 2 and 4 of article 248 of the Labor Code of the Russian Federation).

Each of the methods has its own characteristics.

Compensation for damages at the good will of the employee

Most The best way conflict resolution - the voluntary consent of the employee to compensate for the damage. This method has several advantages. The parties to an employment contract may:

• establish any amount of deduction, for example, at a time in the full amount, even if it exceeds 20% of the employee's salary;
• agree on any terms, forms and methods of debt payment.

For example, an employee can make a lump sum payment or installment payment. In addition, you can agree with the employee on compensation for damages not in cash, but in kind. That is, the employee can compensate for the damage by providing equivalent property or fixing the damaged one (part 5 of article 248 of the Labor Code of the Russian Federation).

An agreement with an employee on the voluntary repayment of his debt can be drawn up in different ways. For example, you can enter into a separate agreement or ask the employee to write a receipt or statement.

The following situation is possible: the employee gave a written obligation to compensate for material damage, and after that he decided to quit and refuses to pay the debt. The employer is obliged:

• issue an order to dismiss an employee;
• issue a work book;
• make a final settlement with the employee. At the same time, without the consent of the employee, the accountant does not have the right to simultaneously withhold the outstanding amount of damage if the total amount of all deductions exceeds 20% of the payments due to him upon dismissal (part 1 of article 138 of the Labor Code of the Russian Federation). In this case, it is possible to recover the outstanding debt only by force, that is, through the court (part 4 of article 248 of the Labor Code of the Russian Federation).

Liability under the Labor Code

If the employee himself does not agree to pay the damage, the amount of compensation will depend on what kind of material responsibility is assigned to him. She may be:

• limited - within the average monthly earnings of an employee (Article 241 of the Labor Code of the Russian Federation);
• full - regardless of size wages employee (Article 242 of the Labor Code of the Russian Federation).

Limited Liability

In most cases, the material liability of an employee is limited (Article 241 of the Labor Code of the Russian Federation). That is, the employee is obliged to reimburse the amount that does not exceed the size of his average monthly earnings.

We collect only the average monthly salary

The Labor Code does not contain a list of situations in which an employee is liable only within the limits of his average monthly salary. In practice, employees have limited liability in the following cases:

• in case of damage to equipment, tools, materials;
• incorrect preparation of documents when it causes material damage to the company (for example, short delivery of goods);
• the company did not receive the money due to careless attitude employee to his official duties;
• The company paid a fine for its employee.

Calculation of average monthly earnings

Average monthly earnings is the maximum amount that can be recovered from an employee with limited liability. How to calculate it?

The legislation does not provide for a separate methodology for calculating the average monthly earnings for situations when it needs to be recovered from an employee on account of the damage caused to him.

In cases where it is a question of keeping the average earnings for the employee, the accountant uses a single calculation procedure based on the average daily (hourly) earnings, which is established:

• article 139 of the Labor Code;
• Regulation on the peculiarities of the procedure for calculating the average wage, approved by Decree of the Government of the Russian Federation of December 24, 2007 No. 922 (hereinafter - the Regulation).

When calculating the amount of material damage, it is necessary to use exactly the general rules, since the accountant has no other calculation option.

The total amount of the employee's wages for the 12 months before the month of signing the withholding order must be divided by the number of days (hours) worked in this period. Multiply the resulting value by the number of working days (hours) according to the schedule of the guilty employee in the month of signing the order (clause 4 of the Regulation).

Example 1 We calculate the average monthly income

In November 2015, a laptop was lost through the fault of an employee. An internal investigation has been carried out. The worker pleaded guilty. The amount of material damage was estimated at 27,150 rubles.

The contract on full liability with the employee is not concluded. The fact of the transfer of the laptop is fixed. This means that you can recover no more than the amount of his average monthly earnings.

The order to recover damages from the employee was signed in November 2015.

An employee works a 40-hour five-day working week. The billing period is from November 1, 2014 to October 31, 2015, of which 245 days have been worked. Wages for these days amounted to 330,000 rubles.

Solution

An employee has a daily record of working time. Therefore, to calculate the average monthly earnings, you first need to determine the average daily earnings.

The average daily earnings will be 1346.94 rubles. (330,000 rubles : 245 working days).

The damages order was signed in November 2015. This month has 20 business days. This means that the amount of average monthly earnings will be 26,938.8 rubles. (1346.94 rubles × 20 working days).

The amount of material damage is 27,150 rubles.

The company will not be able to keep it completely, only 26,938.8 rubles. However, other restrictions must be observed.

Maximum amount withheld per month

In addition to the general limit on the amount of deductions, there is another limitation. With each payment of salary, you cannot withhold more than 20% of its amount (part 1 of article 138 of the Labor Code of the Russian Federation). If the amount of damage is greater, the recovery process will take several months.

Only in some cases it is possible to collect more than 20% of the salary. In particular, up to 70% of the salary can be withheld when recovering damage caused by a crime (part 3 of article 138 of the Labor Code of the Russian Federation). But the fact of the crime is established by the court (part 2 of article 8 of the Criminal Procedure Code of the Russian Federation).

The amount of deduction is calculated based on the employee's salary minus personal income tax (clause 1 of article 99 federal law dated 02.10.2007 No. 229-FZ "On Enforcement Proceedings").

Example 2 Calculate monthly deduction limit

Let's continue example 1. The amount of material damage is 27,150 rubles. The Company is entitled to retain only RUB 26,938.80. What amount can be withheld from an employee if his salary for November was 57,000 rubles?

He does not receive standard tax deductions.

Solution

Maximum amount of damages to be retained

No more than 9918 rubles can be withheld from the income for November per employee. [(57,000 rubles - 7410 rubles) × 20%].

Actual retention amount

9918 rub.< 26 938,8 руб. Из зарплаты сотрудника за ноябрь 2015 года бухгалтер может удержать только 9918 руб. Оставшуюся сумму в размере 17 020,8 руб. (26 938,80 руб. - 9918 руб.) можно будет удержать из зарплаты за следующие месяцы.

Full liability

Full liability implies compensation by the employee for the entire amount of damage (part 1 of article 242 of the Labor Code of the Russian Federation).

Full liability agreement

An agreement on full liability can be concluded with employees of special positions or employees performing special work. These positions and works are listed in the Decree of the Ministry of Labor of Russia dated December 31, 2002 No. 85. For example, the list includes positions:

• forwarding driver;
• salesman;
• cashier;
• warehouse manager, etc.

An agreement on full liability can be concluded with managers, their deputies and chief accountants (part 2 of article 243 and part 1 of article 277 of the Labor Code of the Russian Federation).

Cases of full liability are listed in Article 243 of the Labor Code. In particular, these include the following situations:

• the damage was caused in a state of alcoholic, narcotic or other toxic intoxication;
• causing damage not in the performance of work duties by the employee;
• The employee divulged a trade secret.

Maximum deduction amount

With full financial responsibility, the employee compensates for the entire amount of damage. But even in this case, it is necessary to calculate the maximum amount of deduction for each month, since more than 20% of the salary cannot be withheld (part 1 of article 138 of the Labor Code of the Russian Federation). An example of the calculation is given above (example 2).

Reason for retention - order of the director

The head of the company has the right to decide the issue of withholding material damage from the employee. He can (Article 240 of the Labor Code of the Russian Federation):

• collect a debt in the amount of the average monthly salary (with limited material liability of the employee);
• fully or partially forgive the damage.

Any decision of the leader is issued by order. The head of the company must issue an order within one month from the date when the amount of material damage is established (part 1 of article 248 of the Labor Code of the Russian Federation).

Just do not forget that the employee must be familiarized with the order for the recovery of damage against signature. If he refuses to sign the order, they draw up an act.

For an accountant, the order is the basis for withholding the amount of damage from the employee's salary.

Compensation through the court

In some cases, the employer will still have to deal with statement of claim to the court, in particular (parts 2 and 4 of article 248 of the Labor Code of the Russian Federation):

• if the employee disputes the amount of material damage, the compensation of which is charged to him by the employer;
• the employee refuses to voluntarily compensate for material damage;
• the employer missed the monthly deadline for issuing an order for the recovery of damages;
• to recover a part of the amount of damage that exceeds the average monthly salary;
• that the employee reimburse the company for expenses that cannot be recognized as direct actual damage.

AT this case a reduced limitation period is applied - one year (part 2 of article 392 of the Labor Code of the Russian Federation).

Deductions from wages can be for three reasons. The first is the writ of execution. Secondly, this decision was made by the administration. Well, the last reason is the desire of the employee himself.

Writs of execution cannot be ignored. According to them, from the employee’s salary, you must withhold:

• periodic payments (for example, alimony);
• collection of property debts (if the employee does not have property or it is not enough to pay off the debt);
• compensation for health damage.

Most often, the organization of deductions from wages is carried out in relation to alimony. They can be set in a fixed amount. For example, if the salary of an employee is constantly changing. Or as a percentage of salary (¼, ⅓ or ½ of income - depending on the number of children).

In addition to such mandatory deductions, the company's management has the right to make deductions from salary in relation to:

• unworked advance payment issued on account of salary;
• unspent and not returned in a timely manner, issued under the report, in connection with the transfer to work in another area, etc.;
• salaries and other amounts overpaid to an employee due to a counting error or when proving his guilt in downtime or failure to comply with labor standards;
• amounts for unworked vacation days upon dismissal of an employee before the end of the working year for which he is entitled to vacation;
• amounts of benefits for temporary disability and for pregnancy and childbirth, which were paid to the employee in a larger amount due to a counting error (for example, when calculating earnings for the billing period, an arithmetic error was made, letter from Rostrud dated October 1, 2012 No. 1286-6-1) or misconduct the employee himself (say, he hid information that affects the amount of benefits).

Have a question

We used the wrong benefit calculation algorithm. Is this a counting error?

No, such an error cannot be called counting or arithmetic. Therefore, it will not be possible to withhold an overpayment from an employee. Now, if you made a mistake, say, when multiplying the amount of daily earnings by the number of calendar days in a period of disability or vacation, that's another matter. Such a miscalculation would be precisely arithmetic.

Also, from the employee’s earnings, you can withhold compensation for material damage that he caused to the organization. The basis here will be articles 238 and 240 of the Labor Code of the Russian Federation. Well, if the employee himself asks to deduct some amount from his salary, then let him write a statement. Here is his sample:

Separately, I will allocate loans to employees. Here it is more convenient to prescribe in the contract itself that you will withhold a certain part of the salary.

Limits on the amount of deductions

Deductions from salaries, which are carried out at the initiative of the organization, are limited to 20 percent (Article 138 of the Labor Code of the Russian Federation). They can be withheld at each payment of income. However, if you simultaneously withhold money from an employee’s income both at the initiative of the administration and under executive documents, then their total amount of deductions should not exceed 50 percent of the salary in hand. BUT maximum size deductions can reach 70 percent of earnings if, according to executive documents, the employee must pay:

• compensation for harm caused to health;
• compensation for damage to persons who have lost their breadwinner or caused by a crime;
• alimony for minor children. Bailiffs determine the amount of alimony based on the following proportions. One child is entitled to ¼ of the income, two - 1/3. For three or more children, half of the earnings will be kept (clause 1, article 81 of the RF IC).

But keep in mind important detail A: Your retention rate cannot exceed 20 percent in any case. At the same time, the requirements of executive documents are mandatory. They must be satisfied first.

Maximum deduction amount

This means that the employee's debt to the organization can be withheld from his income only after all obligations under the writ of execution are repaid. And if, for example, your employee pays alimony for three children in the amount of half of his earnings, then you will not be able to collect anything additional from him. Representatives of Rostrud spoke about this in a letter dated May 30, 2012 No. PG / 3890-6-1.

As for the deduction from the salary at the initiative of the employee, there are no restrictions here. This conclusion is confirmed by the letter of Rostrud dated September 16, 2012 No. PR / 7156-6-1. An employee can dispose of his salary as he wants, if he writes an application to the accounting department of the company. At the same time, the provisions of Article 138 of the Labor Code of the Russian Federation do not apply here. That is, you can hold as much as you want and for anything.

Recovery of material damage

Let us dwell separately on the procedure for collecting and deducting material damage from wages. How much you can withhold from an employee depends on what kind of liability is provided - full or limited. With limited liability, the employee is obliged to compensate for damage in an amount not exceeding his average salary (Article 241 of the Labor Code of the Russian Federation).

At the same time, the specific procedure for its calculation for such cases is not defined. So, you need to use the general rules. Clause 4 of the Regulations on the peculiarities of the procedure for calculating the average wage (approved by Decree of the Government of the Russian Federation of December 24, 2007 No. 922) establishes the following procedure. It is necessary to conduct the calculation based on the salary accrued to the employee and the time actually worked by him for the previous 12 calendar months. In this case, prior to the month in which the employee caused the damage.

The total amount of salary for 12 months must be divided by the number of days (hours) worked and multiplied by the number of working days according to the employee's schedule in the month in which he caused the damage. In this case, the average earnings will depend on the month of calculation. However, you cannot simply divide the annual earnings by 12. Use this formula:

Example

At the beginning of August 2014, due to the fault of A.S. Nelyubov, an employee of the organization, the server went down. The amount of material damage was estimated at 25,200 rubles. He admitted his guilt. An agreement on full liability with an employee has not been concluded, which means that no more than the average monthly salary can be recovered from him. The accountant counted it that way.

The employee works according to the usual five-day work. The billing period is from August 1, 2013 to July 31, 2014, of which the employee worked 218 working days. Wages for these days amounted to 433,546.15 rubles. In August 2014 - 21 working days.

So the average monthly salary is:

RUB 433,546.15 : 218 days x 21 days = 41,763.62 rubles.

Thus, the organization can make deductions from the salary of the entire amount of damage caused to them - 25,200 rubles.

With full liability, the employee is obliged to reimburse the entire amount of damage (Article 242 of the Labor Code of the Russian Federation). At the same time, Article 137 of the Labor Code of the Russian Federation does not impose any restrictions on the total amount of penalties.

Full material liability of the employee occurs only in two cases. Firstly, when a shortage of valuables entrusted to him is discovered, if he caused damage due to an administrative offense, etc. In this case, it does not matter whether an agreement on full liability has been concluded with the employee or not, he must compensate the damage in full.

Secondly, in situations where an agreement on full liability has been concluded with an employee. Such an agreement can be concluded with employees whose positions are listed in Appendix 1 to the Decree of the Ministry of Labor of Russia dated December 31, 2002 No. 85. In particular, a similar contract is drawn up with cashiers, cashier-controllers, as well as with storekeepers, warehouse managers, supply specialists and forwarders.

By the way, there are no drivers in this list. Therefore, it is impossible to conclude agreements on full liability with them. However, if the driver is found guilty of an accident, that is, an administrative offense, the company will have the right to recover from him the entire amount of damage.

In some cases, liability may be provided for in an employment contract with an employee. This is allowed in relation to the deputy heads of the organization and the chief accountant (Article 243 of the Labor Code of the Russian Federation).

But the head of the organization (unlike his deputies) bears full financial responsibility, regardless of whether this is stated in his employment contract or not (Article 277 of the Labor Code of the Russian Federation).

Have a question

Is it possible to recover lost profits from an employee?

No. Deductions from wages are allowed only in respect of the amount of direct damage. That is, those losses that can be accurately calculated. It will not be possible to recover the benefit lost due to the actions of the employee (Article 238 of the Labor Code of the Russian Federation).

How to calculate the retention amount

First, deduct personal income tax from the employee's salary. And already from the resulting amount, calculate the amount of deductions from the salary. The fact is that the maximum amount of deductions must be calculated based on the money that the employee will receive in his hands.

At the same time, you have the right to withhold money, including from an advance on wages for the first half of the month. It's even better to do just that. The fact is that when calculating deductions only once at the end of the month, you may encounter the fact that the employee’s salary minus personal income tax and the advance payment already paid may not be enough to recover the entire amount.

In addition, the second part of the payment will be significantly less than the first. After all, we recall that it is not necessary to withhold personal income tax from an advance on wages.

Example

Let's continue the previous example. Nelyubov's official salary is 36,000 rubles. He does not receive standard tax deductions.

The amount of personal income tax amounted to 4680 rubles. (36,000 rubles x 13%). The maximum amount you can deduct from an employee per month is equal to:

(36,000 rubles - 4680 rubles) x 20% \u003d 6264 rubles.

Since this amount is less than the damage, the accountant withheld exactly 6264 rubles from the employee’s salary for August. The remaining 18,736 rubles. (25,000 - 6264) will be deducted from the employee's salary in the following months.

Example

In August 2014, the organization received a writ of execution to recover 16,000 rubles from an employee Karpina A.S. in repayment of outstanding loans. In addition, at the beginning of August, the employee had an unreturned and unconfirmed advance payment for travel expenses in the amount of 3,000 rubles.

However, if the employee compensates for the damage caused to the company, the situation is somewhat different. The Labor Code deals with deductions from wages. And this is nothing more than remuneration for labor (Article 129 of the Labor Code of the Russian Federation). This concept also includes various additional payments and allowances plus incentive payments, that is, bonuses. It turns out that from all other transfers you can withhold money only at the written request of the employee. In this case, in any case, it is not necessary to take into account the money that the employee receives on a return basis. For example, in debt under a loan agreement.

How to keep money if an employee quits

Let's start with company-initiated holdings. And in this case, you also have the right to withhold no more than 20 percent from the last salary of the employee. If the last payment is not enough, the procedure depends on the specific situation.

If we are talking about, say, an outstanding loan, then just agree now with a former employee how he will repay you the remaining amount of the debt. The same applies to material damage or unreturned accountable amounts. The employee refuses to return the debt? So, you will have to go to court.

But if an employee took part of the vacation in advance, it will not be possible to recover from him the underdeducted amounts even through the court. The fact is that the judges in such cases are on the side of the employees.

Now about executive orders. If the employee in respect of whom such a document was received quits, simply send the writ of execution back to the bailiffs. At the same time, attach to it transmittal letter in any form, in which indicate how much you withheld from the employee.

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• Is it possible to appeal against the "refusal decision" in the order of supervision?

Question

The Employer wants to withhold from the official salary of the Employee, part of the amount, in view of the damage caused by the latter. Need information about the order of retention and the necessary documents.

Answer

For information on how to withhold the amount of material damage, see the justification.

Guest, get acquainted -!

Sample documents see separate files in the attachment.

The rationale for this position is in the materials of the "Personnel System".

« How to determine the amount of damage caused by an employee of the organization

Before deciding to recover damages from an employee, the employer should conduct an audit to establish the amount of the loss and the reasons for its occurrence. To check, create a special commission (). Its composition is approved by the head of the organization. It is advisable to create a commission when establishing the facts of theft or abuse, as well as damage to valuables. Indeed, in these cases, an inventory is necessarily carried out with the execution of collation statements, and for this an inventory commission must be created (, Guidelines, approved, Regulations, approved). The legality of such a position is also confirmed by judicial practice (see, for example,).

If the amount of material damage can be established on the basis of documents received from counterparties, the commission may not be created. For example, in the event of an accident due to the fault of an employee, the amount of material damage can be established from documents received from insurance and repair companies.

The fact that an employee caused damage to the property of the organization should be recorded in a separate act. The current legislation does not oblige the employer to draw up such an act. Nevertheless, a document drawn up in a timely manner will allow you to record the fact of damage, establish an approximate or exact amount and subsequently confirm it. The form of the act is not fixed normative documents, so it can be composed in .

Determine the amount of damage at market prices on the day the damage was caused (accident by an employee, shortage detected, etc.) operating in the area. At the same time, the damage cannot be assessed below the value of the property according to accounting data (including depreciation). This procedure is established by the Labor Code of the Russian Federation.

Any direct effective damage caused to the employer can be recovered from the guilty employee. Namely: 1

• the amount of material damage;
• expenses for the acquisition or restoration of property (for example, repairs);
• expenses for compensation for damage that the employee caused to other citizens or organizations (for example, damage from an accident in the part not covered by insurance compensation).

This is stated in the Labor Code of the Russian Federation.

After determining the composition and amount of damage, take written explanations from the employee about the reasons for which it arose. If the employee refuses to do this, then draw up an act. This procedure is established by Article 247 of the Labor Code of the Russian Federation.1

To recover the amount of damage from the guilty employee, the head of the organization must issue a withholding order. The order must be issued no later than one month after the commission establishes the amount of damage.2

Based on the order, from the employee's income, withhold the cost of damage not exceeding his average monthly earnings. In view of this rule, it is necessary to recover damages both in cases where the employee bears limited liability, and in cases where material liability occurs in the full amount of damage.1

If the amount of damage exceeds the monthly earnings or the monthly deadline for issuing a penalty is missed, then compensation for damage is possible either voluntarily (with the consent of the employee) or through the court.

Voluntarily, an employee can compensate for the damage either in full or in part. In this case, by agreement of the parties, compensation for damage with installment payment is allowed. In this case, the employee must submit to the employer a written obligation to compensate for the damage, indicating specific payment terms. If in the future the employee decides to quit and refuses to reimburse the remaining amount of damage, then the outstanding debt can be recovered in the general manner - through the court.1

It should be noted that with the consent of the employer, the employee can compensate for damage not only in money: he can also transfer equivalent property as repayment or undertake to repair the damaged one.

Compensation for damage is made regardless of bringing the employee to disciplinary, administrative or criminal liability for actions (inaction) that caused damage.

This procedure is established by the Labor Code of the Russian Federation.

Holds are carried out taking into account the established restrictions.

Question from practice: how to determine the average monthly earnings when calculating the amount of material damage that can be withheld from an employee's income

The legislation does not provide a methodology for calculating the average monthly earnings. For all cases of maintaining average earnings, a single procedure for its calculation is established based on the average daily (hourly) earnings (). Therefore, when calculating the amount of material damage, it is necessary to use it. The various names that are used in determining the amount of payments cannot serve as a basis for using any other procedure.

The cost of damages withheld from an employee's income should not exceed his average monthly earnings (). In this case, the average monthly earnings should be calculated on the basis of the average daily (hourly) earnings and working days (hours) during the month in which material damage was discovered (, clause and Regulation approved

See what conditions the courts most often evaluate differently. Take safe wording of such conditions into the contract. Use positive practice to convince the counterparty to include the condition in the contract, and use negative practice to convince the counterparty to refuse the condition.

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An employee of the organization in the course of his labor activity can cause material damage to the organization (for example, lose or damage the property of the company).

If a civil law contract is concluded with an employee, the damage is compensated in accordance with the procedure established by civil law. The Civil Code of the Russian Federation provides for full compensation for damages.

If an employment contract is concluded with an employee, the damage is compensated in accordance with labor legislation. Thus, the Labor Code of the Russian Federation establishes that the employee is obliged to compensate the employer for the direct actual damage caused to him (p. 238).

The amount of damage in case of loss and damage to property is determined by actual losses calculated on the basis of market prices prevailing in the 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 depreciation of this property.

Labor legislation provides for limited and full liability.

With limited liability, the employee must compensate for direct damage within the limits of his average monthly earnings.

Limited liability arises if the employee allowed a marriage in work, damaged property through negligence or negligence, etc.

With full liability, the employee must reimburse the entire amount of the organization's expenses for the restoration of damaged or the acquisition of new property.

An exhaustive list of cases in which an employee may be held fully liable is given in Article 243 of the TC RR.

In addition, full liability can be established by an employment contract concluded with the head of the organization, deputy heads, chief accountant.

The amount of damage, which does not exceed the average monthly earnings of the employee, is deducted from his salary (based on the order of the head). The amount of damage, which exceeds the average monthly earnings of the employee, is collected only in court.

Example

During the inventory conducted in April of the reporting year, a shortage of materials for 7,000 rubles was discovered in CJSC Aktiv. As a result of the investigation, the storekeeper A.N. was found guilty of the shortage. Ivanov. An agreement was concluded with Ivanov on full liability. Ivanov's salary - 6000 rubles.

When calculating Ivanov's average monthly earnings, it turned out that it was less than the amount of damage. Therefore, the organization filed a lawsuit to recover from the employee the difference between the average monthly earnings and the amount of damage. The court upheld the organization's claim.

To simplify the example, let's assume that Ivanov does not have the right to use standard tax deductions when calculating personal income tax.

The amount of income tax individuals, which is withheld from Ivanov's salary, is:

6000 rub. x 13% = 780 rubles.

The monthly amount of deductions from Ivanov's salary will be:

(6000 rub. - 780 rub.) x 20% = 1044 rub.

From April to September of the reporting year, 6264 rubles will be withheld. (1044 rubles x 6 months).

In October, the remaining amount of the shortfall is withheld:

7000 - 6264 = 736 rubles.

Since this amount does not exceed 20% of the employee's earnings, it is withheld in full.

To simplify the example, we will not consider the calculation of insurance premiums.

When a shortage is detected, the accountant of "Active" made the following postings:

Debit 94 Credit 10

7000 rub. - written off the cost of missing materials;

Debit 73-2 Credit 94

7000 rub. - the amount of the shortage is attributed to the guilty person.

From April to September of the reporting year, the Asset accountant must make monthly entries:

Debit 20 Credit 70

6000 rub. - Ivanov's salary was accrued;

Debit 70 Credit 68 sub-account "Calculations on personal income tax"

780 rub. - personal income tax withheld from Ivanov's salary;

Debit 70 Credit 73-2

1044 rub. - the amount of damage from the shortage of materials was partially withheld from Ivanov's salary;

Debit 70 Credit 50-1

4176 rub. (6000 - 780 - 1044) - wages were given to Ivanov.

In October of the reporting year, the accountant must make similar entries and withhold from Ivanov's salary the remaining amount of damage in the amount of 736 rubles.