The procedure for withholding overpaid wages. Return of overpaid wages

So, a pleasant surprise happened to you: suddenly there was an amount on your bank card that exceeded the expected one. In other words, you reasonably suspect that the most unlikely event in the Universe did happen - the accounting department was mistaken in your favor.

On the one hand, you want to immediately please yourself with little amenities (the accountant may be wrong, but the Universe knows how much you need this money!). On the other hand, the thought that everything will have to be returned poisons all the joy. Maybe you won't have to? Understanding!

The overpaid salary can be collected from you only in the cases described in article 137 of the Labor Code of the Russian Federation. Such cases include:

counting error of the accountant;

proven guilt of the employee in non-compliance with labor standards or simple;

illegal actions of the employee aimed at obtaining "extra" money, which must be established by the court.

If you are a hacker who hacked the website of your own accounting department, then everything is clear with you. But what is the "accounting error of an accountant" and "proven guilt in non-compliance with labor standards"?

What is a counting error?

You may be surprised, but nowhere in the legislation is it specified what a "counting error" is. We have to focus on the Supreme Court's Determination of 20.01.2012 N 59-B11-17, which states that "an error in arithmetic operations, that is, in operations related to counting, should be considered counting." But at the same time, technical errors, including those committed through the fault of the employer, do not apply to counting!

” Thus, if the accountant, calculating the salary on a piece of paper in a column (does this still happen?), Credited you not 10, but 100 thousand rubles, the money will have to be returned.

” But if the same mistake was made by an accounting program, or the wrong number was mechanically entered into the statement, if there was a typo or a mistake in the financial document, finally, if legislative or regulatory acts were incorrectly applied, then this is no longer a counting error, and money can be do not return!

Examples? Please!

You are entitled to leave for 28 days, but the accountant mistakenly "added" to them the previous weekend and calculated the vacation pay for 30 days.

During your vacation, you were paid both vacation pay and salary.

You were paid a bonus, although your name was not among the employees in the order.

Due to a program malfunction, you were paid twice.

You were charged an allowance that does not correspond to your working conditions (for example, you worked only during the day, and paid you as for night shifts).

What is “non-compliance with labor standards”?

You received your next salary and after that it turned out that you did not complete all the points included in your work responsibilities. For example, they had to sew 30 coats, but they sewed 25, or 30, but it is very crooked and they will have to be ripped open. Or you flooded your laptop with cherry jam and didn't add customer orders to the database until the technical service revived your equipment.

” But keep in mind, just the employer's dissatisfaction (who sews like that ?!) is not enough in this case! Your mistakes must be documented and recognized as material by the labor dispute committee or court.

What has fallen is lost ...

Even if you have to return the money according to the law, the employer must also hurry up: an order to withhold the unlawfully paid amount must be issued within a month!

Yes, yes, this is exactly the limitation period according to the same article 137 of the Labor Code of the Russian Federation:

"The employer has the right to make a decision on deduction from the employee's wages no later than one month from the date of the expiry of the term for making a decision on withholding overpaid wages."

Didn't have time to issue an order - you can safely keep all the money for yourself.

Instead of a conclusion

Of course, it is worth understanding that the employer will find exactly how to compensate for their losses. It will deprive, for example, the entire accounting department or the quality control department of the annual bonus. And this, you know, does not improve anyone's mood, although it seems to be for the cause. Yes, and you will gain a reputation as a greedy and not very decent person - although you seem to have nothing to do with it.

If you are not particularly sensitive and have been planning to look for a more promising job for a long time, then it is up to you to decide what to do with the "free" money. But if you intend to continue working in this organization, then wouldn't it be better to act not according to the law, but according to your conscience and return the surplus?

Overpayment of wages: need to be returned?

What if you were given a salary in excess of what is required? Do overpaid amounts always need to be refunded? Can the employer withhold the overpayment from subsequent payments without the employee's consent?

One of the burning issues in the relationship between the employer and the employee is the calculation and payment of wages. However, in practice, there are cases when the employer either calculates and pays wages at a lower rate or more.
Today we will analyze the second case. Let's agree in this article by wages to mean any accruals: actual wages for a certain period of time, various additional payments, bonuses, compensations, and so on.
So, the employer has charged and paid (transferred to the card) more than usual.

When will the money be returned?

In accordance with Art. 137 of the Labor Code of the Russian Federation, an employer has the right to make deductions from wages in the following circumstances:
1) if you were paid an advance payment on account of your salary, but you did not work it out;
2) if you were given an advance payment in connection with sending on a business trip, transferring to another territory, etc., but you did not spend the entire amount of the advance and did not return the balance;
3) if money was transferred to you due to a counting error (mathematical error);
4) if the individual labor dispute resolution body has found you guilty of simple or non-compliance with labor standards;
5) for missed vacation days if you were fired before the end of the working year.
The employee must return the money voluntarily within the time allotted to him for this. You can keep money only within a month after the expiration of this period. You can only withhold an amount that is not contested by the employee. There is no limit on the retention period only for the unearned advance.

When can the money be left?

The money may not be returned to the employer if it was transferred due to a typo or any other error that is not arithmetic.
It is important to know that employers and the court sometimes mistakenly interpret the concept of "counting error" (if it is allowed, the money must be returned to the employer), taking under it not only mathematical errors, but also typos. However, the only truly true is the interpretation of the counting error as an error in mathematical calculations. This is adhered to by the Supreme Court of Russia.
It should also be borne in mind that even if the accounting oversight is considered a counting error, the employer is obliged to obtain the employee's written consent to deduct the erroneously listed amounts from his earnings. A simple verbal agreement is not enough here.
When choosing to give or not to give an erroneously transferred amount to the employer, you should think about the ethical side of the issue, because the employer's attitude towards you in the event of a refusal to return the mistakenly transferred funds may deteriorate significantly.

Andrey Tkachev, retired judge, member of the Russian Bar Association

Recorded by Ekaterina Kitaeva

Today on the site:

Vacancies: 151086 Resumes: 8217244 Companies: 405389

spb.rabota.ru
Publisher: LLC "Media Online", 196084, St. Petersburg, Moscow avenue, 109, letter A, room 9 N
Editorial office: LLC "Media Online", 196084, St. Petersburg, Moscow avenue, 109, letter A, room 9 N
Editor-in-chief of the regional version: Anna Mikhalevskaya.

Is it possible to return the overpaid wages to the employee? At first glance, the question seems absurd. There are many simple ways of settling payments for wages with an employee of the enterprise. However, how legitimate this simplicity is will depend on many factors. Let's try to analyze them.
In accordance with article 137 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation), wages overpaid to an employee (including in the event of improper application of laws or other regulatory legal acts) cannot be collected from him, except in the following cases:
- when the body for the consideration of individual labor disputes recognized the employee's guilt in failure to comply with labor standards or simple;
- when the salary was paid to the employee in excess in connection with his illegal actions established by the court;
- making a counting error.
At the same time, there is no legally established definition of the concept of "counting error". The number of counting errors includes only those that were made directly when performing arithmetic operations, that is, they are associated precisely with calculations. Technical errors, including those committed through the fault of the employer, are not countable (ruling of the Supreme Court of the Russian Federation of January 20, 2012 No. 59-B11-17).
According to representatives of the Ministry of Health and Social Development of Russia, the counting error includes:
- a mechanical error when entering data into the accounting program (if, for example, the salary is entered in a larger amount than it should be, or a number is missing, any number is incorrectly typed);
- an error caused by a crash in the program;
- an error that is associated with arithmetic operations in calculating salaries (an incorrect result was obtained when adding up the components of the salary (salary, bonuses, bonuses), which were separately calculated correctly).
The uncountable error includes:
- incorrect application of legislation. For example, a vacation was paid for a longer duration than provided for by the legislation and (or) the local regulatory legal act of the institution, as a result of which the amount of vacation payments turns out to be overestimated;
- double payment of wages;
- incorrect application of the institution's regulations.
Thus, the employer does not have the right to make deductions on his own initiative in the following cases:
- if the amounts accrued in favor of the employee were mistakenly paid to him twice;
- if the accrual of an excess amount is due to an accountant's mistake: wages are calculated based on a higher salary (tariff rate) than the one established for the employee in the employment contract; the bonus is accrued in a larger amount than indicated in the order for bonuses; the amount of bonuses was incorrectly taken into account in the calculations of average earnings; the average earnings were adjusted incorrectly due to an increase in salaries (tariff rates) in the organization, etc .;
- if the accrual of an excessive amount of wages is due to errors in the Timesheet (for example, days of temporary disability are reflected in the Timesheet as worked, etc.).
The employer has the right to issue an order (order) on the return of funds by the employee if the overpayment has arisen due to the need for compensation:
- unearned advance payment against wages;
- an unspent and not returned in time advance payment issued in connection with a business trip;
- amounts overpaid due to an accounting error.
Mandatory conditions for returning by order of the head are:
- the employee does not dispute the grounds and amounts of deductions (there is a written consent of the employee);
- no more than a month has passed from the moment of calculating the excessive amount of payment or from the set deadline for submitting an advance report on expenses on a business trip. After one month from the end of the established period, the amounts overpaid to the employee, as well as the amounts disputed by the employee, may be recovered only on the basis of a court decision.
Article 138 of the Labor Code of the Russian Federation establishes that the total amount of all deductions for each payment of wages cannot exceed 20%, and in cases stipulated by federal laws - 50% of the wages due to the employee.
Upon termination of payments (in the case of, for example, dismissal), the remaining debt is collected in court.
Thus, in the event that the overpayment was due to an uncountable error, the employee who was overpaid is not obliged to reimburse the amount of the overpayment to the institution. In this case, the amount of the overpayment must be reimbursed by the employee who made the mistake.
In order to find out the reasons for the mistake and the perpetrators, a specially appointed commission of the institution must draw up an act, which also indicates which mistake was made: counting or not. Further, if the guilty person returns the erroneously paid amounts, the incident will be settled.
Otherwise, to deduct the overpayment from the salary, the following should be drawn up (if the employee does not dispute the basis and amount of the overpayment):
- a notice indicating the period for withholding the overpayment (no more than one month from the date of the end of the period established for the return of incorrectly calculated payments). In the document, the employee affixes his consent (disagreement) to withholding;
- an order to withhold an overpayment (issued if the employee's consent is obtained and the retention period has not expired).
If the term for making a decision on withholding has expired or the employee refuses to voluntarily return the excess received amounts, the employer will have to collect the overpayment in court.
This is not an easy solution to a seemingly simple task of refunding salary overpayments.

The salary was calculated incorrectly for a dismissed employee: what an accountant should do

It is not uncommon for accountants to make recalculations on the salaries of employees after dismissal. This raises a lot of questions: what postings to make, in what period to reflect the adjustments for insurance premiums, whether it is necessary to submit the revised 2-NDFL form, and so on. In this article, we will tell you what an accountant should do both in the event of an overpayment and an understatement of wages.

Read also: How to certify a work book to the present - a sample

The employee was overpaid

More often than not, overpayment of wages is caused by one of two reasons. The first is the so-called overspending of vacation, when the employee was given vacation for a period not yet worked. He received vacation pay, and then quit, while the period for which the vacation was granted remained unworked. In this case, the amount of vacation pay becomes an excessively paid salary, that is, the employee's debt to the employer.
The second reason is the unearned advance payment, when the employee received a certain amount in the middle of the month, after which he quit. Further, during the final calculation, it turned out that the salary actually earned in a given month is less than the advance received. Then the "unclosed" part of the advance will be credited to the debit of account 70, as the employee's debt.

In such a situation, the employer should offer the former employee to voluntarily repay the debt. If he refuses, the organization will only have to file a lawsuit, or forgive the debt and write off the debit balance. Let's consider each of these options.

The employee returned the money

If the employee voluntarily returns the unearned advance, the debit balance on account 70 will be automatically repaid. And since insurance premiums and personal income tax are not paid from the amount of the advance, no adjustments will have to be made when returning.

If we are talking about the return of vacation pay, then the accountant needs to reverse the posting made when they were charged. In tax accounting, expenses in the form of vacation pay must be canceled.

At the same time, the contributions that were transferred to the Pension Fund of the Russian Federation, the Social Insurance Fund and the MHIF from the amount of vacation pay become overpaid. Therefore, they need to be reflected in the reporting to funds as an overpayment. Moreover, the accountant should not submit clarifications for the period in which vacation pay was paid. It is sufficient to reflect the contribution adjustments in the reporting for the current period. Such clarifications were given by the Ministry of Health and Social Development of Russia in a letter dated May 28, 2010 No. 1376-19 (see "In what cases, recalculation with an employee will not lead to a clarification of the calculations for insurance premiums").

The only problem that may arise is related to personalized reporting to the FIU. The fact is that a report showing negative accruals of pension contributions for any employee will not be accepted. Therefore, if due to adjustments for vacation payments of the current period have become less than zero, you will have to reflect these adjustments not in the current, but in the previous period.

Personal income tax withheld from vacation pay and transferred to the budget also becomes overpaid. If the reporting for the corresponding year has already been submitted, the tax must be reflected in the updated certificate in the form 2-NDFL. The revision number must match the original reference number, and the date will be current. The rules for filling out the updated 2-NDFL form are set out in the letter of the Federal Tax Service of Russia dated August 13, 2014 No. PA-4-11 / 15988 (see "The Federal Tax Service informed how to fill out the updated 2-NDFL certificate when refunding tax to an employee").

Next, the accountant needs to reverse the entry for calculating personal income tax from vacation pay. As a result, a tax overpayment is formed, which can be returned or offset against future payments to the budget (clause 1 of article 231 of the Tax Code of the Russian Federation). The employee does not need to transfer the tax, since he returns the excess received vacation pay minus personal income tax.

Example 1
At the beginning of 2015, employee Ivanov received leave for the unworked period. He was credited with vacation pay in the amount of 10,000 rubles. The accountant withheld and transferred to the budget personal income tax in the amount of 1,300 rubles (10,000 rubles x 13%). Ivanov received 8,700 rubles in his hands. (10,000 - 1,300).
DEBIT 44 CREDIT 70
- 10,000 rubles. - accrued vacation pay to Ivanov;
DEBIT 70 CREDIT 68
- 1,300 rubles. - personal income tax charged;
DEBIT 68 CREDIT 51
- 1,300 rubles. - personal income tax is listed;
DEBIT 70 CREDIT 50
- 8 700 rubles. - vacation pay issued to Ivanov.
The tax accounting reflects the cost of wages in the amount of 10,000 rubles.

Upon his return from vacation, Ivanov quit his job and returned the vacation pay to the cashier. The accountant made the entries:
DEBIT 70 CREDIT 44
- 10,000 rubles. - Ivanov's vacation pay was canceled;
DEBIT 68 CREDIT 70
- 1,300 rubles. - the accrual of personal income tax was canceled;
DEBIT 50 CREDIT 70
- 8 700 rubles. - the vacation pay was returned by Ivanov.
In tax accounting, salary expenses in the amount of 10,000 rubles were canceled.
In addition, the accountant reflected the excessively withheld and paid income tax in the amount of RUB 1,300. in the updated reference 2-NDFL. Overpayment in the amount of 1,300 rubles. he counted against future payments to the budget.

The employer collects money through the court

In a situation where the employer files a claim in order to collect an advance payment or unworked leave through the court, the corresponding amounts (minus personal income tax) must be reflected on the debit of account 73 and credit of account 70. If the former employee wins the lawsuit, a reverse posting should be made. If the company becomes the winner and the employee returns the money, the amount will be debited to account 51 or 50.

With expenses in the form of vacation pay, you must proceed as follows. If the employee wins, the amount owed must be reflected on account 91, and canceled in tax accounting. If the employer wins, the costs must be canceled both in accounting and in tax accounting.

The fate of pension, medical contributions and contributions to the FSS also depends on the outcome of the trial. If the court decides in favor of the employee and he does not return the money, the fees are legally paid. Then you don't need to make any adjustments. If the court takes the side of the company, then the contributions will be an overpayment, which must be reflected in the reporting of the current period as the fund's debt.

As for personal income tax, if the employer wins, this tax should be treated in the same way as if the employee voluntarily refunds money. Simply put, you need to submit an updated 2-NDFL and reverse the accrual of tax in accounting. If the employee wins, the tax is deemed to be withheld and paid lawfully and no adjustments are required.

Example 2
At the beginning of 2015, employee Petrov received leave for the unworked period. He was credited with vacation pay in the amount of 20,000 rubles. The accountant withheld and transferred to the budget personal income tax in the amount of 2,600 rubles (20,000 rubles x 13%). Petrov received 17,400 rubles (20,000 - 2,600) in his hands.
The following entries appeared in the employer's accounting:
DEBIT 44 CREDIT 70
- 20,000 rubles. - paid vacation pay to Petrov;
DEBIT 70 CREDIT 68
- 2 600 rubles. - personal income tax charged;
DEBIT 68 CREDIT 51
- 2 600 rubles. - personal income tax is listed;
DEBIT 70 CREDIT 50
- 17 400 rubles. - vacation pay was issued to Petrov.
The tax accounting reflects the cost of wages in the amount of 20,000 rubles.

Upon his return from vacation, Petrov resigned, but refused to return the money to the cashier. The company has filed a lawsuit. The accountant made the entry:
DEBIT 73 CREDIT 70
- 17,400 rubles (20,000 - 2,600) - a claim for vacation pay is reflected.

If Petrov wins the court, then the accountant will make the entries:
DEBIT 70 CREDIT 73
- 17 400 rubles. - the refusal of the claim is reflected;
DEBIT 70 CREDIT 44
DEBIT 91 CREDIT 70
- 20,000 rubles. - Petrov's vacation pay was written off to other expenses;

If the company wins the court, the accountant will make the entries:
DEBIT 50 CREDIT 73
- 17 400 rubles. - vacation pay was returned to Petrov by a court decision;
DEBIT 70 CREDIT 44
- 20,000 rubles. - Petrov's vacation pay was canceled;
DEBIT 68 CREDIT 70
- 2 600 rubles. - the accrual of personal income tax was canceled.
In tax accounting, expenses in the amount of 20,000 rubles were canceled.
In addition, if the employer wins, the accountant will reflect the excessively withheld and paid income tax in the amount of RUB 2,600. in the updated reference 2-NDFL. Overpayment in the amount of 2 600 rubles. he will offset against future payments to the budget.

The employer has forgiven the debt

It is possible that the employee will refuse to pay off debts, and the company will not go to court. If the debt arose due to an unearned advance payment, then the debit balance on account 70 will remain until the accountant writes off it. If the reason for the debt is the overspending of vacation, then the accountant must reverse the posting made when calculating vacation pay and cancel the corresponding expenses in tax accounting. As a result, a debit balance is formed on account 70, which will remain until the write-off.

Read also: Characteristics of an employee in court

At the same time, the contributions that were transferred to the Pension Fund of the Russian Federation, the Social Insurance Fund and the MHIF from the amount of vacation pay are lawfully paid. As a result, no adjustments need to be made.

Personal income tax on the amount of vacation pay was withheld and transferred to the budget reasonably, so no adjustments are required here either. And in the case of an unearned advance payment, the employee received income, but the company did not manage to withhold personal income tax. Therefore, the accountant must inform the inspection about the impossibility of withholding tax (clause 5 of article 226 of the Tax Code of the Russian Federation). To do this, you must submit a certificate in the form 2-NDFL with the sign "2". But this should not be done immediately, but only after the debt has been written off.

The debt should be written off after the expiration of the limitation period, which is equal to three years (Article 196 of the Civil Code of the Russian Federation). In accounting, in this case, a posting is made on the debit of account 91 and the credit of account 70. But the issue of reflecting the situation in tax accounting is controversial. Clause 2 of Article 266 of the Tax Code of the Russian Federation makes it possible to classify "accounts receivable" with an expired limitation period as losses and to include them in non-operating expenses. But the Ministry of Finance of Russia, in a letter dated 10.12.09 No. 03-03-06 / 1/799, spoke out against such costs (see "The Ministry of Finance is against writing off" receivables "for salaries for unworked vacation days"). True, the conclusions of the officials relate to the situation when the company, upon dismissal of an employee, did not cancel the expenses for unearned vacation in the tax accounting records. Hence, we can conclude that if these costs are canceled, then at the end of the limitation period, the accountant has the right to generate losses.

Salary understated

Sometimes the salary of an employee has to be charged additionally after his dismissal. As a rule, this happens either when a mistake has been made in the past, or in the case of "late" bonuses for past periods. Let's consider each of these situations.

The accountant has identified an error

If, after the employee's dismissal, it turns out that his salary for previous periods was mistakenly underestimated, the accountant should immediately make additional accruals. The tax and accounting records of these amounts will be exactly the same as in the case of a "regular" salary. In other words, you need to create a posting on the debit of account 44, 20 or 22 and the credit of account 70 and generate expenses for the purpose of calculating income tax. You should also pay insurance premiums to the funds.

In addition, the employer is obliged to calculate and pay the employee monetary compensation for delayed wages. Its size must be at least one three hundredth of the current refinancing rate of the Bank of Russia of the amount unpaid on time for each day of delay (Article 236 of the Labor Code of the Russian Federation).

Compensation for delayed wages is not subject to personal income tax and is not included in expenses that reduce taxable income. But with insurance premiums, there is no complete clarity. Officials traditionally insist that fees must be paid. This point of view is stated, in particular, in the letter of the Ministry of Labor of Russia dated 03.08.15 No. 17-3 / B-398 (see "Ministry of Labor: interest for violation of the payment deadline is subject to insurance premiums"). But the arbitration practice is developing in favor of the employer. So, in the resolution of the Supreme Arbitration Court of the Russian Federation dated December 10, 13 No. 11031/13, the opposite conclusion was made, namely that the amount of compensation is exempted from contributions. Thus, companies have a good chance of avoiding paying fees, but this will most likely have to go to court.

The bonus is accrued after the employee's dismissal

In many companies, bonuses are calculated not monthly, but based on the results of a quarter or a year. Under such conditions, the employee can receive a quarterly or annual bonus after he is fired.

The question arises, in what period should the employee's income be reflected and for what period should a 2-NDFL certificate be submitted? It is best to include the “overdue” bonus in the earnings of the quarter or year in which it was awarded. Indeed, according to paragraph 2 of Article 223 of the Tax Code of the Russian Federation, the date of receipt of income in the form of a salary is the last day of the month for which it was charged. Accordingly, if the reporting for this year has already been submitted, clarifications must be submitted in accordance with the 2-NDFL form.

Contributions to the Pension Fund, MHIF and FSS, accrued on the amount of the "belated" premium, can be reflected in the reporting of the current period. This was announced by the Ministry of Health and Social Development of Russia in a letter dated May 28, 2010 No. 1376-19.

And one more indicator that the accountant needs to clarify is the amount of compensation for unused vacation received by the employee upon dismissal. The fact is that this compensation is calculated based on the average earnings. And since at the time of dismissal the bonus had not yet been accrued, it was not included in the average earnings. Do I need to recalculate the compensation taking into account the premium? If the premium is quarterly, then it is not necessary, since the average earnings do not include premiums accrued outside the billing period (letter from Rostrud of Russia dated 03.05.07 No. 1263-6-1). But if the bonus is annual, then the average earnings must be recalculated, because the remuneration at the end of the year is taken into account regardless of the time of accrual (clause 15 of the regulation on the specifics of the procedure for calculating the average wage *).

* The regulation on the specifics of the procedure for calculating the average wage was approved by Decree of the Government of the Russian Federation of December 24, 2007 No. 922.

What if the accountant overpaid the employee's allowance?

The accountant mistakenly overpaid money to the employee. The situation is unpleasant, since overpaid money can be recovered only in exceptional cases. What does an accountant need to know to get out of this situation without losses?

Advanced training at the School of Accountants. training programs are developed based on the requirements of the professional standard "Accountant".

How overpayment occurs

You can overpay an employee's allowance for two reasons:

• counting error, as a result of which the amount of the benefit was overstated;
• the employee provided false information that affected the calculation of the benefit.

The sequence of actions of the accountant in each of the listed situations will differ both in documenting, and in the procedure for claiming the overpaid amount of benefits from the employee, and in tax consequences. Let's deal with each case separately.

Counting error

Overpaid wages, benefits, vacation pay, and other payments may be withheld if this was the result of an accounting error (Article 137 of the Labor Code of the Russian Federation).

What is a counting error? Taking into account the position of Rostrud stated in the letter dated 01.10.2012 No. 1286-6-1. an arithmetic error is considered a counting error, that is, an error made during arithmetic calculations. This position is adhered to by the Supreme Court of the Russian Federation in the Resolution of 20.01.2012 No. 59-B11-17. Other errors (for example, misinterpretation of legislative norms, indication of incorrect initial data for calculating payments, etc.) are not grounds for making deductions from the employee's wages.

Withholding is made in the amount of not more than 20% of the amount due to the insured person for each subsequent payment of benefits or wages. Upon termination of the payment of benefits (salaries), the remaining debt is collected in court (part 4 of article 15 of Law No. 255-FZ).

Employee Selivanov P.I. of the Gamma enterprise was disabled from April 1 to April 7, 2017. On Monday, April 10, I went to work and brought a certificate of incapacity for work. The employee's insurance experience is 9 years. The employee did not submit an application to the employer for the provision of personal income tax deductions. Payments subject to insurance contributions for compulsory social insurance in case of temporary disability and in connection with maternity, in the billing period were:

2015 - 350,000 rubles;

2016 - 450,000 rubles.

Calculating the average salary for sick leave, Gamma's accountant made an arithmetic error:

(350 000 + 540 000 ) / 730 = 1,219.18 rubles.

RUB 1,219.18 x 7 days = RUB 8,534.26 (including the first three days of temporary incapacity for work paid at the expense of the employer - 3,657.54 rubles; at the expense of social insurance - 4,876.72 rubles).

On hands: 8 534.26 - (8 534.26 x 13%) = RUB 7,424.26

After recalculation, the sick leave amount turned out to be less:

(350,000 + 450,000) / 730 = 1,095.89 rubles.

RUB 1,095.89 x 7 days = RUB 7,671.23 (including the first three days of temporary disability - 3,287.67 rubles at the expense of social insurance - 4,383.56 rubles).

On hands: 7 671.23 - (7 671.23 x 13%) = RUB 6,674.23

RUB 7,424.26 - 6 674.23 rubles. = RUB 750.03... (including at the expense of social insurance - 428.59 rubles).

To deduct the overpaid amount of benefits from the employee's wages, you must obtain his consent and ask him to write a statement.

At the Gamma enterprise, wages are paid twice a month:

• for the first half of the month - on the 25th;
• for the second half of the month - on the 10th day of the month following the calculated one.

Anyone can make a mistake and an accountant is no exception. What to do if the employee was paid more than the due salary by mistake of the accountant? Can it be collected from an employee? In this article, we will figure out how to return the overpayment of wages due to the fault of the accountant.

Procedure for withholding overpayment

First you need to determine whether it is possible to withhold overpaid money from the employee. You can withhold money from an employee in the following situations (137 of the Labor Code of the Russian Federation):

• The employee did not work out the money previously given to the employee, or did not return it. An example is the failure to provide a report on a business trip or for accountable money. Or an advance payment was paid to the employee, which he did not work. In some cases, vacation pay can also be withheld, for example, when the employee has been granted vacation in advance, and the employee leaves. At the same time, it is important to remember that it is impossible to withhold vacation pay if an employee leaves in connection with a layoff or conscription;
• The employee was overpaid due to an accounting error. Or, due to a counting error, the employee received a large amount of vacation or benefits.

Accountant errors

Overpayment reimbursement procedure

Depending on the situation in which the overpayment occurred, the algorithm for its reimbursement will differ:

1. The employee received a payment in an amount more than due due to his own machinations (for example, the submitted documents contained deliberately false data) or the overpayment arose due to the fact that the employee did not report on the advance payment, or did not work it out. In this case, you first need to determine whether the employee agrees to withholding, and also find out if more than one month has passed since the date the overpayment was established. In the event that the employee does not agree to withhold the overpayment, the employer only has the right to go to court. If the employee gives his consent, then the overpayment must be withheld from his wages. In this case, it is necessary to observe the rule of 20% withholding, that is, no more than 20% can be withheld from wages at a time (138 of the Labor Code of the Russian Federation).
2. The overpayment was due to an accounting error. In this case, it is necessary to find out whether the accounting error is countable. If this is the one, then the overpayment is withheld from the employee's salary, but not more than 20% of the salary at a time. If the error is uncountable, then the employer can withhold the overpayment only if the employee does it on his own.

Counting Error Proofs

Conditions for withholding overpayment

In order to withhold an overpayment from an employee's salary, the following conditions must be met:

• The employee agrees to withholding;
• At least one month must pass from the date that was set for the return of the advance, or for the repayment of the debt.

Both conditions must be met simultaneously. If at least one of them is not fulfilled, the money can only be collected in court. You will also need to go to court if the employee provided false information, or if any information affecting the salary was hidden.

How to get back the overpayment of wages due to the fault of the accountant

What to do if an employee quits

The employer can withhold overpayment only from the employee's salary (137 of the Labor Code of the Russian Federation). However, if the employee has already quit, it is impossible to do so. If the employee does not want to return the overpayment voluntarily, the employer has the right to go to court. In this case, evidence should be prepared that the error on which the overpayment was transferred was countable.

Adjustment of accounting, personal income tax and insurance premiums

If an error occurs in the payment of salaries, you will need to recalculate personal income tax, contributions, and also correct accounting records. The postings will be as follows:

According to article 137 of the Labor Code of the Russian Federation, salaries are considered overpaid and must be returned by the employee in case:

• counting error;
• proven by the commission or by the court of the employee's fault in the simple or non-compliance with labor standards;
• the unlawful actions of the employee established by the court in order to receive unearned money.

Fundamental rules

At the same time, according to article 137 of the Labor Code of the Russian Federation, the employer publishes order to withhold overpaid wages from an employee... If the amount is large, you will need to withhold for several months, since the company has the right to withhold no more than 20% of the monthly calculated salary.

An employee with this order is required must be familiarized with signature and indicating the date of acquaintance, with written confirmation of your consent to withhold the specified amount in the agreed monthly amounts (if the amount is large and it is not possible to withhold it within one month).

The second option is also possible - the employee writes himself statement addressed to the head of the organization with a request to withhold overpaid (with interest). According to him, it can be more than 20% per month.

If a counting error is found for a resigned employee, it is necessary to notify him of this by registered mail within one month from the date of detection of the error. At the same time, reflect the request to independently return the excessively received amount. It should also be warned that in case of refusal to voluntary return, it will follow for the enforced collection of the amount.

Going to court

In case of contacting, an application is submitted with the following documents:

• a copy with the defendant;
• calculations for overpaid wages;
• an act drawn up at the enterprise on the detected error with observance;
• a copy of the letter sent to the dismissed employee with notification of its sending.

On trial present originals of all the above documents... In the course of the proceedings, it will be necessary to prove the fact of a committed counting error or the fault of the employee.

Overpaid salary that is not subject to return by the employee

It is forbidden to demand the return of funds specified in paragraph 3 of Article 1109 of the Civil Code of the Russian Federation. Also not subject to withholding overpaid salary in the event of an accounting error, if the relevant order is not issued in a timely manner, with which the financially injured employee was familiarized by signature.

Technical errors do not apply to counting... And therefore, it is forbidden to withhold overpayments from an employee due to errors in the accounting program and other monetary documents, incorrect application of laws and regulations.

In particular, overpaid salary is not refundable:

• longer vacation pay;
• twice: as for myself and as if for the namesake;
• the salary was paid by mistake while on vacation;
• the accountant has accrued an unspecified mark-up;
• the bonus was paid by mistake.

Approaching the issue that has arisen not from the side of legal acts, but simply humanly: everyone knows how much is owed to him. The accountant deals with payroll and does not always have the opportunity to thoroughly check everyone before payment.

Withholding the amount of damage for overpaid wages from the guilty person

On the basis of chapter 39 of the Labor Code of the Russian Federation, overpaid wages that are not subject to return by the employee, can be withheld by the employer from the accountant who committed this error, whose guilt will be confirmed during the administrative investigation of this fact. And also the employer can punish the chief accountant for insufficient control in this area of ​​accounting.

According to Article 248, on the fact of damage caused by workers, a order (orders) of the head within the time frame established by law.

If the deadline for the issuance of an order (instruction) has expired, as well as if the amount recovered from the official is more than his monthly salary, the recovery of damage is possible only with the consent of the guilty employee or through the court.

Olesya, good afternoon!

All cases in which money can be withheld from wages are listed in Article 137 of the Labor Code of the Russian Federation:

Deductions from the employee's wages are made only in cases provided for by this Code and other federal laws.

Deductions from the employee's wages to pay off his debts to the employer can be made:

to reimburse the unearned advance paid to the employee on account of wages;

to pay off an unspent and timely not returned advance payment issued in connection with a business trip or transfer to another job in another locality, as well as in other cases;

to return amounts overpaid to an employee due to counting errors, as well as amounts overpaid to the employee, if the body for the consideration of individual labor disputes recognizes the employee's guilt in failure to comply with labor standards (part three of Article 155 of this Code) or simple (part three of Article 157 of this Code);

upon dismissal of an employee before the end of the working year, on account of which he has already received an annual paid vacation, for unworked vacation days. Deductions for these days are not made if the employee is dismissed on the grounds provided for by paragraph 8 of the first part of Article 77 or paragraphs 1, 2 or 4 of the first part of Article 81, paragraphs 1, 2, 5, 6 and 7 of Article 83 of this Code.

In the cases provided for in paragraphs two, three and four of part two of this article, the employer has the right to make a decision on deduction from the employee's salary no later than one month from the end of the period established for the return of the advance payment, repayment of debt or incorrectly calculated payments, and provided that if the employee does not dispute the grounds and amount of the deduction.

Wages overpaid to an employee (including in case of incorrect application of labor legislation or other regulatory legal acts containing labor law norms) cannot be collected from him, except for the following cases:

counting error;

if the body for the consideration of individual labor disputes recognized the employee's guilt in failure to comply with labor standards (part three of Article 155 of this Code) or simple (part three of Article 157 of this Code);

if the salary was paid to the employee in excess in connection with his illegal actions established by the court.

So, unfortunately they can hold back in your case.

Withholding overpaid wages

Is it possible to return the overpaid wages to the employee? At first glance, the question seems absurd. There are many simple ways of settling payments for wages with an employee of the enterprise. However, how legitimate this simplicity is will depend on many factors. Let's try to analyze them.
In accordance with article 137 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation), wages overpaid to an employee (including in the event of improper application of laws or other regulatory legal acts) cannot be collected from him, except in the following cases:
- when the body for the consideration of individual labor disputes recognized the employee's guilt in failure to comply with labor standards or simple;
- when the salary was paid to the employee in excess in connection with his illegal actions established by the court;
- making a counting error.
At the same time, there is no legally established definition of the concept of "counting error". The number of counting errors includes only those that were made directly when performing arithmetic operations, that is, they are associated precisely with calculations. Technical errors, including those committed through the fault of the employer, are not countable (ruling of the Supreme Court of the Russian Federation of January 20, 2012 No. 59-B11-17).
According to representatives of the Ministry of Health and Social Development of Russia, the counting error includes:
- a mechanical error when entering data into the accounting program (if, for example, the salary is entered in a larger amount than it should be, or a number is missing, any number is incorrectly typed);
- an error caused by a crash in the program;
- an error that is associated with arithmetic operations in calculating salaries (an incorrect result was obtained when adding up the components of the salary (salary, bonuses, bonuses), which were separately calculated correctly).
The uncountable error includes:
- incorrect application of legislation. For example, a vacation was paid for a longer duration than provided for by the legislation and (or) the local regulatory legal act of the institution, as a result of which the amount of vacation payments turns out to be overestimated;
- double payment of wages;
- incorrect application of the institution's regulations.
Thus, the employer does not have the right to make deductions on his own initiative in the following cases:
- if the amounts accrued in favor of the employee were mistakenly paid to him twice;
- if the accrual of an excess amount is due to an accountant's mistake: wages are calculated based on a higher salary (tariff rate) than the one established for the employee in the employment contract; the bonus is accrued in a larger amount than indicated in the order for bonuses; the amount of bonuses was incorrectly taken into account in the calculations of average earnings; the average earnings were adjusted incorrectly due to an increase in salaries (tariff rates) in the organization, etc .;
- if the accrual of an excessive amount of wages is due to errors in the Timesheet (for example, days of temporary disability are reflected in the Timesheet as worked, etc.).
The employer has the right to issue an order (order) on the return of funds by the employee if the overpayment has arisen due to the need for compensation:
- unearned advance payment against wages;
- an unspent and not returned in time advance payment issued in connection with a business trip;
- amounts overpaid due to an accounting error.
Mandatory conditions for returning by order of the head are:
- the employee does not dispute the grounds and amounts of deductions (there is a written consent of the employee);
- no more than a month has passed from the moment of calculating the excessive amount of payment or from the set deadline for submitting an advance report on expenses on a business trip. After one month from the end of the established period, the amounts overpaid to the employee, as well as the amounts disputed by the employee, may be recovered only on the basis of a court decision.
Article 138 of the Labor Code of the Russian Federation establishes that the total amount of all deductions for each payment of wages cannot exceed 20%, and in cases stipulated by federal laws - 50% of the wages due to the employee.
Upon termination of payments (in the case of, for example, dismissal), the remaining debt is collected in court.
Thus, in the event that the overpayment was due to an uncountable error, the employee who was overpaid is not obliged to reimburse the amount of the overpayment to the institution. In this case, the amount of the overpayment must be reimbursed by the employee who made the mistake.
In order to find out the reasons for the mistake and the perpetrators, a specially appointed commission of the institution must draw up an act, which also indicates which mistake was made: counting or not. Further, if the guilty person returns the erroneously paid amounts, the incident will be settled.
Otherwise, to deduct the overpayment from the salary, the following should be drawn up (if the employee does not dispute the basis and amount of the overpayment):
- a notice indicating the period for withholding the overpayment (no more than one month from the date of the end of the period established for the return of incorrectly calculated payments). In the document, the employee affixes his consent (disagreement) to withholding;
- an order to withhold an overpayment (issued if the employee's consent is obtained and the retention period has not expired).
If the term for making a decision on withholding has expired or the employee refuses to voluntarily return the excess received amounts, the employer will have to collect the overpayment in court.
This is not an easy solution to a seemingly simple task of refunding salary overpayments.

According to article 137 of the Labor Code of the Russian Federation, salaries are considered overpaid and must be returned by the employee in case:

• counting error;
• proven by the labor dispute commission or the court of the employee's fault in the simple or non-compliance with labor standards;
• the unlawful actions of the employee established by the court in order to receive unearned money.

Fundamental rules

At the same time, according to article 137 of the Labor Code of the Russian Federation, the employer publishes order to withhold overpaid wages from an employee... If the amount is large, you will need to withhold for several months, since the company has the right to withhold no more than 20% of the monthly calculated salary.

An employee with this order is required must be familiarized with signature and indicating the date of acquaintance, with written confirmation of your consent to withhold the specified amount in the agreed monthly amounts (if the amount is large and it is not possible to withhold it within one month).

The second option is also possible - the employee writes himself statement addressed to the head of the organization with a request to withhold overpaid wages (with indication of interest).

What amounts overpaid to an employee can be deducted from his salary

According to him, it can be more than 20% per month.

If a counting error is found for a resigned employee, it is necessary to notify him of this by registered mail within one month from the date of detection of the error. At the same time, reflect the request to independently return the excessively received amount. It should also be warned that in case of refusal to voluntarily return, there will be an appeal to the court for enforced collection of the amount.

Going to court

In case of applying to the district court, an application is submitted with the following documents:

• a copy of the employment contract with the defendant;
• calculations for overpaid wages;
• an act drawn up at the enterprise on the detected error in compliance with the statute of limitations;
• a copy of the letter sent to the dismissed employee with notification of its sending.

On trial present originals of all the above documents... In the course of the proceedings, it will be necessary to prove the fact of a committed counting error or the fault of the employee.

Overpaid salary that is not subject to return by the employee

It is forbidden to demand the return of funds specified in paragraph 3 of Article 1109 of the Civil Code of the Russian Federation. Also not subject to withholding overpaid salary in the event of an accounting error, if the relevant order is not issued in a timely manner, with which the financially injured employee was familiarized by signature.

Technical errors do not apply to counting... And therefore, it is forbidden to withhold overpayments from an employee due to errors in the accounting program and other monetary documents, incorrect application of laws and regulations.

In particular, overpaid salary is not refundable:

• longer vacation pay;
• payment of wages twice: as for oneself and as if for a namesake;
• the salary was paid by mistake while on vacation;
• the accountant has accrued an unspecified mark-up;
• the bonus was paid by mistake.

Approaching the issue that has arisen not from the side of legal acts, but simply humanly: everyone knows how much is owed to him. The accountant deals with payroll and does not always have the opportunity to thoroughly check everyone before payment.

Withholding the amount of damage for overpaid wages from the guilty person

On the basis of chapter 39 of the Labor Code of the Russian Federation, overpaid wages that are not subject to return by the employee, can be withheld by the employer from the accountant who committed this error, whose guilt will be confirmed during the administrative investigation of this fact. And also the employer can punish the chief accountant for insufficient control in this area of ​​accounting.

According to Article 248 of the Labor Code, on the fact of damage caused by employees, a order (orders) of the head within the time frame established by law.

If the deadline for the issuance of an order (instruction) has expired, as well as if the amount recovered from the official is more than his monthly salary, the recovery of damage is possible only with the consent of the guilty employee or through the court.

Home - Consulting

Withholding from the employee's salary overpaid amounts

It often happens that some amounts must be withheld from the employee's salary. This can happen for various reasons, for example, after the payment of wages, an error in the calculations is found, or the employee has become owed due to damage to the company. Tell me what amounts are lawfully withheld from an employee's salary under Russian law? How to properly withhold such amounts?

Deductions from wages can be different: at the request of the employee himself, according to executive documents, by order of the employer. The latter, in turn, can take place in the case of:

(or) the employee causes material damage to the employer;

(or) payments to an employee of excess amounts within the framework of labor relations (hereinafter - excessive payments) (Article 137 of the Labor Code of the Russian Federation).

The procedure for withholding excess payments is different from the procedure for withholding damages. Let's see what relates to excessive payments, how they can be withheld from the employee and what to do if this has not been possible.

Types of excess payments

From the salary (Article 129 of the Labor Code of the Russian Federation), the employee is allowed to withhold:

• vacation pay for unworked vacation days... Such a debt may arise when an employee is dismissed before the end of the working year for which he has already received annual paid leave. You can deduct an employee's debt from the "layoff" payments due. True, upon dismissal for some reason, overpaid vacation pay cannot be withheld. For example, upon dismissal:
• due to staff reduction or number of employees(Clause 2, Article 81 of the Labor Code of the Russian Federation);
• the employee's refusal to transfer to another job, which he needs according to a medical report, or the employer's lack of appropriate work (Clause 8, Article 77 of the Labor Code of the Russian Federation);
• conscription(Clause 1 of Art. 83 of the Labor Code of the Russian Federation);
• reinstatement of an employee who previously performed this work(Clause 2 of Art. 83 of the Labor Code of the Russian Federation);
• unearned salary advances... This debt may appear, for example, when an employee was paid an advance on his salary for that month at the beginning of the month, and the employee, having not worked it out, went on vacation at his own expense or on sick leave until the end of the month;
• unspent and unpaid accountable amounts, including those issued when sent on a business trip (Letter of Rostrud dated 11.03.2009 N 1144-TZ);
• (Articles 155, 157 of the Labor Code of the Russian Federation). Such a debt will arise if you pay the employee for downtime or shortcomings on the basis that they happened through your fault or for reasons beyond the control of both parties, and then it turns out that the employee was to blame. In this case, it is possible to withhold excessive payments only after you go to court and the court establishes the employee’s guilt in idle time or inadequacy (Definition of the Moscow Regional Court of 12/15/2011 N 33-25895);
• amounts overpaid due to a counting error... And this is not necessarily a salary. This also includes any amounts mistakenly paid to an employee in or in connection with an employment relationship.

  The specialists of Rostrud think the same.

From reputable sources
Shklovets Ivan Ivanovich, Deputy Head of the Federal Service for Labor and Employment
"According to article 137 of the Labor Code of the Russian Federation, the employer can deduct from the employee's wages (in compliance with the procedure provided for in this article) the debt of this employee in the form of amounts overpaid to him due to counting errors. The range of these amounts is not limited by this article. Therefore, you can deduct any overpaid to the employee due to a counting error payments and compensations provided for by labor legislation, local regulations of the organization, collective or labor agreement, for example, benefits, material assistance, travel expenses to the place of training, compensation for the use of employee's personal property, insurance coverage for insurance against accidents at work and occupational diseases, etc.
Deductions can only be made from wages. According to Art. 129 of the Labor Code of the Russian Federation, wages are remuneration for labor (salary, official salary, tariff rate), as well as compensation payments (additional payments and allowances of a compensatory nature, including for work in conditions deviating from normal, work in special climatic conditions and on territories exposed to radioactive contamination, and other compensatory payments) and incentive payments (additional payments and incentive payments, bonuses and other incentive payments). "

There is no definition of a counting error in the Labor Code. The courts and Rostrud believe that only arithmetic errors in calculations are counted, that is, errors made as a result of incorrect application of the rules of mathematics (Letter of Rostrud dated 01.10.2012 N 1286-6-1). Therefore, the courts, as a rule, do not recognize the following errors as counting:

• the same amount was transferred twice due to a technical error (Definition of the RF Armed Forces of 20.01.2012 N 59-B11-17);
• the calculation did not take into account the previously paid amount (Determination of the Sverdlovsk Regional Court of February 16, 2012 N 33-2365 / 2012; Cassation determination of the Krasnodar Regional Court of February 14, 2012 N 33-3340 / 12);
• incorrect initial data were used in the calculation (for example, the wrong tariff or coefficient (Appeal determination of the Oryol Regional Court of 06/20/2012 N 33-1068), the wrong number of days (Cassation determination of the Khabarovsk Regional Court of 02/08/2012 N 33-847/2012) );
• the salary in the program was accrued in double amount due to an error in the calculation algorithm (Appeal determination of the Bryansk Regional Court of 03.05.2012 N 33-1077 / 12);
• when calculating, the norms of the organization's local normative act were incorrectly applied (Appellate ruling of the Moscow City Court of 16.07.2012 N 11-13827 / 12).

Other conclusions of the courts are extremely rare. For example, the Samara Regional Court indicated that counting errors include not only arithmetic errors, but also software failures (Definition of the Samara Regional Court dated January 18, 2012 N 33-302 / 2012).

And the Rostov Regional Court, reviewing the case in which the dismissed employee was mistakenly re-listed "dismissal" payments, came to the conclusion that it was a counting error. Since the total amount of transfers exceeded the amount accrued in favor of the employee (Cassation determination of the Rostov Regional Court of 12.09.2011 N 33-12413).

We warn the manager
If the employee was overpaid due to an uncountable error and he refused to return these sums voluntarily, it will be possible to recover them from him only in court as unjust enrichment (Article 1102, paragraph 3 of Article 1109 of the Civil Code of the Russian Federation).

The fact that a counting error was made in calculating payments in favor of the employee must be documented. For example, an accountant might write a memo addressed to the manager. Or let a specially created commission from among the company's employees draw up an act on the detection of a counting error.

Procedure for withholding excess payments

It differs depending on how much you overpaid the employee.

Withholding vacation pay for unworked vacation days

Everything is simple here. The employee's consent is not required. You just need to count the overpaid vacation pay, issue an order (order) on withholding in any form, familiarize the employee with it against signature (Articles 22, 130, 137 of the Labor Code of the Russian Federation).

And then withhold the debt from the "leave" payments. But the maximum that can be deducted is 20% of the amounts due to the employee (after withholding personal income tax, because the amount of tax is not due to the employee), if this is the only withholding (Article 138 of the Labor Code of the Russian Federation; Letter of the Ministry of Health and Social Development of Russia of 11/16/2011 N 22-2-4852 ).
Also, do not forget to give the employee a pay slip indicating the type and amount of retention (Article 136 of the Labor Code of the Russian Federation).

Withholding other surplus payments

They can be deducted from the employee's salary only if the following conditions are met (Article 137 of the Labor Code of the Russian Federation).

Condition 1. The deadline for refunding excess payments has expired

The employee must return the excess payments within the following terms:

• unspent accountable amounts(Clause 4.4 of the Regulations approved by the Bank of Russia on 12.10.2011 N 373-P) - on the next business day after the expiration of the period for which money was issued for the purchase of something, or on the day of going to work after a business trip or after an illness. And if the head has set the deadline for the final settlements on the approved advance reports, then - within this period;
• payments in case of non-fulfillment of labor standards or simple if the court establishes the employee's guilt - on the day the court decision comes into force;
• amounts overpaid due to an accounting error and unearned salary advances- within the period established in the local regulations of the company. If it is not installed, then the employee should be given (sent by mail) a notification in which it is necessary to indicate what debt has arisen, in what amount and when it needs to be repaid. You set the term at your discretion.

  Counting error in payroll

  You can issue a notification, for example, like this.

Condition 2. Employee consent received for retention

The employer has the right to decide on withholding excess payments from the employee's salary only if the employee does not dispute the grounds and amounts of the withholding (Article 137 of the Labor Code of the Russian Federation).

From this we can conclude that it is enough to notify the employee about the upcoming retention, setting a time limit for him to submit objections. And if objections from him are not received within this period, then you can calmly issue an order (order) on withholding.

But no. In the opinion of Rostrud, expressed in 2007, and the courts, this is not enough, and as a sign of the absence of objections from the employee, it is necessary to obtain written consent to withholding from him (Letter of Rostrud dated 09.08.2007 N 3044-6-0; Republic of 08/22/2011 N 33-2856, the Armed Forces of the Republic of Tatarstan of 03/14/2011 N 33-2570 / 2011). The experts of Rostrud adhere to the same opinion now.

From reputable sources
Shklovets I.I., Rostrud
"When deducting from the employee's salary the amounts provided for by Article 137 of the Labor Code of the Russian Federation (except for vacation pay for unworked vacation days), written consent should be obtained from the employee. This is also confirmed by judicial practice."

An employee can issue his consent to withholding in the following way.

Condition 3. A retention order issued in a timely manner

The order (order) on withholding must be issued no later than one month from the date of expiration of the period for the return of excess payments. And it is possible to directly withhold money from the employee's salary even later (Article 137 of the Labor Code of the Russian Federation; Cassation determination of the Armed Forces of the Udmurt Republic dated 03.10.2011 N 33-3519 / 11), that is, when the employee is paid the salary. Moreover, retention, taking into account the restrictions on its amount, can stretch for several months.

In the order, indicate the basis and amount of the withholding. And familiarize the employee with it against signature (Article 22 of the Labor Code of the Russian Federation).

Condition 4. The amount of deductions for each payment does not exceed 20%

For each salary payment (that is, from the amounts after deducting personal income tax), you can withhold no more than 20% (Article 138 of the Labor Code of the Russian Federation). Do not forget to indicate the basis and amount of the deduction in the pay slip issued to the employee (Article 136 of the Labor Code of the Russian Federation).

Well, if the employee agrees to have more than 20% withheld from him, then you can deduct from his salary any amount specified by him in his written application. Indeed, in this case, the debt is paid off by the employee voluntarily, and not by order of the employer. Therefore, restrictions on the amount of deductions do not apply (Articles 130, 138 of the Labor Code of the Russian Federation). And there is no need to issue an order for such a retention, just one statement of the employee is enough.

Condition 5. Order of deductions followed

First of all, as you know, personal income tax must be withheld from the salary (Letter of the Ministry of Health and Social Development of Russia of 11/16/2011 N 22-2-4852).

From the remaining amount, you deduct the employee's debt under executive documents (writ of execution, court orders, etc.) (Article 138 of the Labor Code of the Russian Federation).

And only if you do not have executive documents in relation to the employee, or if the deductions for them amounted to less than 20% of the employee's salary, you can withhold from it his debt to your company, of course, in compliance with the total amount of all deductions - no more than 20% of the salary.

Advice
Observe all of the conditions listed when holding. Indeed, if any of them are not observed, the employee can, through the court, recognize the withholding as illegal. And then the amounts withheld from him will be recovered from your organization back - in his favor (Definitions of the St. Petersburg City Court dated 07.03.2012 N 33-2718, dated 16.01.2012 N 33-238; Kamchatka Regional Court dated 22.01.2009 N 33- 38/2009; Cassation definitions of the Armed Forces of the Udmurt Republic dated 19.10.2009 N 33-2803; Kaliningrad Regional Court dated 03.08.2011 N 33-3553 / 2011).

If it was not possible to withhold excessive payments

For example, the employee did not give his consent to withholding, or when he was fired, 20% of the "dismissal" payments were not enough to pay off the entire debt. Then it is possible to recover from the employee the salary and payments equivalent to it in court only in three cases (Article 137 of the Labor Code of the Russian Federation; clause 3 of Article 1109 of the Civil Code of the Russian Federation; Determination of the Primorsky Regional Court of 12/20/2011 N 33-12174; Definitions of the Armed Forces of the Russian Federation from May 28, 2010 N 18-B10-16; RF Supreme Arbitration Court of 08.10.2008 N 12227/08):

(or) a counting error has been made;

(or) unfair actions of the employee took place (for example, the employee unlawfully calculated his salary, abusing his official position (Definition of the Sverdlovsk Regional Court of 12.07.2012 N 33-8492 / 2012), illegally received a salary after dismissal (Cassation determination of the Trans-Baikal Regional Court of 27.12. 2011 N 33-4545-2011), submitted false information that influenced the size of the salary, or fabricated documents for calculating salaries in a larger amount (Appeal ruling of the Krasnodar Regional Court dated 28.08.2012 N 33-17581 / 2012));

(or) the court recognizes the employee's guilt in non-compliance with labor standards or simple (if excessive payments are collected from the employee for downtime and shortcomings).

In the absence of such circumstances, the courts for the most part refuse employers to collect excessive payments from employees (Definitions of the Armed Forces of the Republic of Komi dated 07.23.2012 N 33-2899AP / 2012, St. Petersburg City Court dated 03.11.2011 N 33-16437 / 2011; regional court of 15.03.2012 N 33-2387 / 2012; Moscow city court of 06.08.2012 N 11-16329; Yaroslavl regional court of 05.07.2012 N 33-3460; Pskov regional court of 15.05.2012 N 33-749 / 2012).

Opposite decisions are rare (Appellate ruling of the Court of the Jewish Autonomous Region of 27.07.2012 N 33-366 / 2012; Cassation ruling of the Bryansk Regional Court of 24.02.2011 N 33-507 / 11). Moreover, sometimes it is possible to recover excessive payments from the employee as material damage (Cassation determination of the Armed Forces of the Republic of Tatarstan dated 24.10.2011 N 33-12920 / 11).

If we are not talking about excessive payments to the employee within the framework of labor relations, but about his debts on other grounds, then, of course, there is a possibility of collecting it from the employee. For example, if:

(or) the employee caused material damage to the company (in particular, did not return the property entrusted to him, overalls upon dismissal, overspend the working Internet traffic for personal needs, damaged the company's property) (Articles 248, 392 of the Labor Code of the Russian Federation). Moreover, if the amount of damage does not exceed the average monthly earnings of the employee, then it can be withheld from his salary without his consent (Article 248 of the Labor Code of the Russian Federation);

Taxi on a business trip Weekend on a business trip