How to return an overpayment of personal income tax (income tax) from the tax office

We return personal income tax paid by mistake

A situation where a tax agent organization excessively withheld personal income tax from an individual’s income and transferred it to the budget may arise, for example, when providing an employee with a property or social deduction not from the beginning of the year.
In this case, according to paragraph 1 of Art. 231 of the Tax Code of the Russian Federation, the amount of tax excessively withheld by a tax agent from the taxpayer’s income is subject to refund by the tax agent on the basis of a written application from the taxpayer. The refund to the employee-taxpayer of the excessively withheld amount of tax is made by the tax agent organization at the expense of the amounts of this tax subject to transfer to the budget system of the Russian Federation on account of upcoming payments both for the specified taxpayer and for other taxpayers from whose income the tax agent withholds tax, within three months from the date the tax agent receives the relevant application from the taxpayer.

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Here are examples of the return of excessively withheld personal income tax and transferred to the budget.

Example 1.

On 02/20/2017, the employee submitted an application for the return of the excessively withheld personal income tax amount in the amount of 23,000 rubles. The amount of tax to be transferred to the budget on all income paid by the organization to individuals was:

• as of March 10, 2017 – 18,000 rubles;
• as of April 10, 2017 – 18,000 rubles.

As already mentioned, you first need to transfer the amount of over-withheld personal income tax to the employee’s account specified in the refund application. Then, by the amount of the returned tax, you need to reduce the amount of current personal income tax payments, calculated from payments to all individuals who received income from the organization, until the returned amount is fully credited.

The entire amount of tax excessively withheld from the employee’s income in the amount of 23,000 rubles. transferred to his card on the day of salary payment - 03/10/2017. Part of the refunded tax in the amount of RUB 18,000. the organization will count towards the reduction of personal income tax due on March 10, 2017. Thus, the organization will not transfer personal income tax to the budget on March 10, 2017.

For the remainder of the personal income tax returned to the employee in the amount of 5,000 rubles. (24,000 - 18,000) the organization will reduce the personal income tax due to be transferred on 04/10/2017. As a result, the organization will pay a tax in the amount of 13,000 rubles to the budget. (18,000 - 5,000).

Example 2.

On 02/20/2017, the employee submitted an application for the return of the excessively withheld personal income tax amount in the amount of 63,000 rubles. The amount of tax to be transferred to the budget on all income paid by the organization to individuals is equal to:

• as of March 10, 2017 – 18,000 rubles;
• as of April 10, 2017 – 18,000 rubles;
• as of May 10, 2017 – 18,000 rubles.

1) an application for the return of excess tax withheld;

2) an extract from the tax register for personal income tax for the period when the tax was excessively withheld;

3) certificate 2-NDFL for this person for the period when the tax was excessively withheld. If an organization applies for a refund of personal income tax that was excessively withheld in previous years, it is necessary to submit two certificates: an initial one and a corrected one;

4) documents confirming the excessive transfer of tax (for example, payment order, extract).

Within a month from the date of submission of these documents, the controlling authority must return the overpayment of personal income tax to the organization’s current account (Clause 6, Article 78 of the Tax Code of the Russian Federation).

So, if the refund of the overly withheld tax amount is carried out by the tax agent in violation of the deadline established by Art. 231 of the Tax Code of the Russian Federation (within three months from the date the tax agent receives the corresponding application from the taxpayer), the tax agent for the amount of over-withheld tax that is not returned to the taxpayer within the prescribed period is obliged to accrue interest, which is also payable to the taxpayer, for each calendar day of violation of the deadline return.

If the amount of tax to be transferred by the tax agent to the budgetary system of the Russian Federation is not enough to return to the taxpayer the amount of tax that was excessively withheld and transferred to the budgetary system of the Russian Federation within the period established by Art. 231 of the Tax Code of the Russian Federation, the tax agent, within 10 days from the date the taxpayer submits the corresponding application to him, sends to the tax authority at the place of his registration an application for the return to the tax agent of the amount of tax that was excessively withheld by him.

Next, the return of the tax amount transferred to the budget system of the Russian Federation to the tax agent is carried out by the tax authority in the manner prescribed by Art. 78 of the Tax Code of the Russian Federation (we will consider returns under this article in detail below).

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According to paragraphs 1 and 2 of Art. 78 of the Tax Code of the Russian Federation, the offset of amounts of overpaid federal taxes and fees, regional and local taxes is carried out according to the corresponding types of taxes and fees, as well as accrued penalties. The offset or refund of the amount of overpaid tax is carried out by the tax authority at the place of registration of the taxpayer.

Clause 5 of Art. 78 of the Tax Code of the Russian Federation provides that the offset of the amount of overpaid tax to pay off arrears on other taxes, arrears of penalties and (or) fines subject to payment or collection in cases provided for by the Tax Code of the Russian Federation is carried out by the tax authorities independently.

By virtue of paragraph 14 of Art. 78 of the Tax Code of the Russian Federation, the rules established by this article apply to tax agents, payers of fees and the responsible participant in a consolidated group of taxpayers.

Tax department employees, as already mentioned, believe that transferring to the budget an amount exceeding the amount of personal income tax actually withheld from the income of individuals does not constitute payment of tax. They consider this amount as funds mistakenly transferred to the budget. In this regard, controllers can return the tax to the tax agent in the manner established by Art.

78 of the Tax Code of the Russian Federation, provided that such a tax agent should not have debts on other federal taxes. In this case, the tax agent has the right to contact the tax authority with an application for the return to the current account of an amount that is not personal income tax and was mistakenly transferred to the budget system of the Russian Federation. Please note that the fact of erroneous transfer of amounts using personal income tax payment details, as well as the fact of excessive withholding and transfer of tax, is confirmed on the basis of an extract from the tax accounting register for the corresponding tax period and payment documents in accordance with paragraph. 8 clause 1 art. 231 Tax Code of the Russian Federation.

Regarding the offset of the overpaid amount of personal income tax against future payments for this tax, employees of the regulatory authority noted that, according to clause 9 of Art. 226 of the Tax Code of the Russian Federation, payment of tax at the expense of tax agents is not allowed. Consequently, transferring to the budget an amount exceeding the amount of personal income tax actually withheld from the income of individuals does not constitute payment of tax.

Accordingly, as the tax inspectorate indicated, the amount mistakenly transferred using the personal income tax payment details can be offset against the repayment of tax debts of the corresponding type, as well as against future payments for other taxes of the corresponding type. Other taxes mean federal taxes, with the exception of personal income tax.

Such clarifications are presented in the Letter of the Federal Tax Service of the Russian Federation dated 02/06/2017 No. GD-4-8/ [email protected]

Essence of the question. Incorrectly paid personal income tax amounts are not considered as tax payments and therefore cannot be offset against subsequent personal income tax payments.

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As for the erroneously transferred personal income tax amount, it can be returned. To do this, submit a refund application to the tax office. Moreover, you have three years from the moment the overpayment was discovered.

Such rules are established in paragraph 7 of Art. 78 of the Tax Code of the Russian Federation. Let us remind you that the inspectorate is obliged to return the overpayment of personal income tax to the tax agent within a month after receiving an application from him (clause.

6 tbsp. 78 Tax Code of the Russian Federation). If the inspection violates this deadline, then interest is charged on the amount to be returned for each calendar day of delay. This is stated in paragraph 10 of Art.

78 Tax Code of the Russian Federation. The tax office will transfer the refunded money to your current account, which you indicate in the refund application.

Memo. The procedure for returning overpayments is prescribed in Art. 78 Tax Code of the Russian Federation. It applies not only to taxpayers, but also to tax agents.

Options

Once a case of overpayment has been recorded and the citizen has been notified about it, the question of how to dispose of the personal income tax contributed to the budget in excess should be resolved. There are two options:

• offset the overpayment against payments for other taxes, penalties and fines;
• return the overpayment from the budget.

To do this, the Federal Tax Service must first, in accordance with Letter No. GD-4-8/ [email protected] , must determine whether these amounts are recognized as tax. Payers are required to make personal income tax payments after payment of income. Accordingly, if the transfer of the fee to the budget occurred before the date of payment of income, then its amount is not recognized as tax. Then the organization remains obliged to re-pay it to the budget. But the amount paid earlier can only be returned.

Offsetting against future personal income tax payments is possible only if the organization has over-deducted the amount of tax and transferred it to the budget. This clarification on the offset is given by the letter of the Ministry of Finance dated January 22, 2018 No. 03-02-07/1/3224.

The amount of the fee, the overpayment of which was due to an error during the transfer, cannot be offset against future revenues for this type of tax.

During the year, personal income tax was either underpaid or overpaid

In some organizations, personal income tax calculated and withheld from employee income during the year does not coincide with what was paid to the budget. For example, in July, personal income tax was assessed and withheld in the amount of 45,000 rubles, and paid - 40,000 rubles. And in August, tax was assessed and withheld in the amount of 45,000 rubles, and paid - 50,000 rubles. At the end of the year, accountants “even out” everything and pay the missing amount. And in the old fashioned way they believe that they only face penalties.

Actually this is not true. If personal income tax is not transferred to the budget on time, the organization faces not only penalties. 75 of the Tax Code of the Russian Federation, but also a fine of 20% of the amount not paid on time Art. 123 Tax Code of the Russian Federation; Letter of the Ministry of Finance dated November 11, 2013 No. 03-02-08/48022. And this norm has been in effect for a long time, since September 3, 2010. 1 tbsp. 10 of the Law of July 27, 2010 No. 229-FZ

ADVICE

Even if your organization did not transfer personal income tax on time during the year, we do not advise you to count the penalties yourself and transfer them to the budget. You still won’t save yourself from a fine, and the amount of penalties will not change, since personal income tax has been paid to the budget. And by paying penalties, you will only attract the attention of tax authorities. For example, they may come to you for an on-site inspection and will already know where to look. Otherwise, maybe they won’t come to you in 3 years.

If during the year you transferred personal income tax to the budget in a larger amount than you withheld from the income of employees, and at the end of the year you still have this “overpayment”, then you cannot offset it against upcoming personal income tax payments, but can only return it from the budget . As the Federal Tax Service has repeatedly explained, a tax agent cannot, in principle, overpay personal income tax if he correctly calculates the tax. Letters from the Federal Tax Service dated October 19.

ADVICE

To avoid having to write an application for the return of the amount excessively transferred to the budget and not to provoke tax authorities to conduct an on-site audit of you, try to close all personal income tax settlements with employees by the end of the year and get rid of overpayments.

Is it possible to transfer personal income tax less due to overpayment?

The Tax Code establishes that all taxpayers are required to remit personal income tax on income received. The reason for the overpayment is most often a banal mistake by the accountant when indicating the BCC in the payment order. Then it cannot be offset against future payments. It is permissible to return the overpayment upon application.

Another case is when the overpayment occurred due to the fact that the employee’s tax was calculated and transferred in excess of the amount that should have been. Then, according to the explanations of the Ministry of Finance, the organization - a tax agent, must contact the tax authority with an application for the return of the erroneously transferred personal income tax amount. This overpayment can be offset against future income tax payments.

Overpayment of personal income tax to the budget, what to do in 2019

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According to paragraph 7 of Art. 78 of the Tax Code of the Russian Federation, an application for offset or refund of the amount of overpaid tax can be submitted within three years from the date of payment of the specified amount, unless otherwise provided by the legislation of the Russian Federation on taxes and fees. Please note that the procedure for the tax agent organization depends on the reason for the overpayment:

• Personal income tax was excessively withheld from the income of an individual and transferred to the budget;
• overpayment of personal income tax arose for other reasons, for example, due to an error in the payment order or transfer of tax earlier than the date of payment of personal income tax to the budget (thereby it is not recognized as a tax).

Let us consider in detail the procedure for returning personal income tax in each of the above cases.

Article 24 of the Tax Code of the Russian Federation reveals the very concept of a tax agent - these are persons whose responsibilities include the calculation, withholding, and transfer of taxes to the budget of the Russian Federation.

224 of the Tax Code of the Russian Federation, taking into account the features provided for in Art. 226 Tax Code of the Russian Federation. The withholding must be transferred to the budget within the time limits established by clause.

1, 2 tbsp. 223, paragraph 6 of Art. 226 of the Tax Code of the Russian Federation (letters of the Ministry of Finance of the Russian Federation dated February 1, 2019 No. 03 04 06/5209, dated July 25, 2019 No. 03 04 06/43463, 03 04 06/43479, Federal Tax Service of the Russian Federation dated May 26, 2014 No. Note, p.

How to detect an overpayment?

The amount of personal income tax that is excessively withheld from income can be detected by a tax agent, who pays the income to the taxpayer and immediately withholds the tax. The tax authority itself can also indicate an overpayment. Then, from the moment the fact of overpayment was discovered, in accordance with clause 3 of Art. 78, paragraph 4 of Art. 79, paragraph 1, art. 231 of the Tax Code, the taxpayer must be notified within ten working days.

The tax authority notifies of the overpayment in one of the following ways:

• written notice, delivered in person against signature;
• by post with notification;
• indicating the amount of overpayment in the taxpayer’s Personal Account.

We paid an advance on the GPA: should we withhold personal income tax?

4 tbsp.

As we understand, the error was discovered after submitting 2-NDFL certificates for this employee to the Federal Tax Service.

Therefore, you need to act like this: If an employee was provided with deductions to which he was not entitled, then the employer has the right to independently recalculate the personal income tax and withhold the underpaid amount of tax from the salary.

: Indeed, this is an unfortunate mistake.

But its consequences are even sadder.

Firstly, you had the opportunity to withhold personal income tax when paying benefits, but did not do so.

As soon as you discover an error, you need to recalculate the personal income tax and then proceed in the same way. 1 tbsp. 231 Tax Code of the Russian Federation:

• inform the employee about the amount of overpayment (you have 10 working days to do this);
• take from him a written application for a tax refund, which will indicate the bank details of the account to which the employee wants to receive his money;
• transfer the overpayment of personal income tax to the employee’s account. And then you simply reduce it by this amount and transfer to the budget the personal income tax accrued for the current month for all employees. You must return the overpayment of personal income tax to the employee within 3 months from the date of receipt of the application from him. That is, if you do not have time to return the amount this year, you can do it in 2014.

Note that if you return the overpayment next year, you need to pay attention to this. If on the date of submitting the 2-NDFL certificates to the inspectorate you return the entire overpayment to the employee, then in his 2-NDFL certificate for 2013 you do not need to show in clause 5.6 the amount of over-withheld tax. In this certificate, the amounts of calculated, withheld and transferred personal income tax must be equal.

The Tax Code does not say how to inform an employee about an overpayment - verbally or in writing. To avoid misunderstandings, it is better to do this in writing. And since then it turns out that you need to have two documents - a message about the overpayment and a statement from the employee, then for convenience these two documents can be combined into one.

Limited Liability Company "Employer"

Ref. No. 555 December 5, 2013

Senior manager V.N. Bodrov TIN 772101234567, passport of a citizen of the Russian Federation: series 45 04 No. 123456, issued by the Zhulebino Department of Internal Affairs of Moscow on September 02, 2002, residence address: 109431, Moscow, st. Privolnaya, 9, bldg. 1, apt. 124

MESSAGE

We inform you that due to the untimely submission of documents confirming the birth of a child to the accounting department, personal income tax in the amount of 910 rubles was excessively withheld from your income for July - November 2013.

In accordance with paragraph 1 of Art. 231 of the Tax Code of the Russian Federation, you have the right to declare the return of the excessively withheld amount of personal income tax.

In the absence of such an application, you can return the over-withheld personal income tax to the tax authority at your place of residence on the basis of a tax return at the end of the calendar year.

December 5, 2013

STATEMENT

In connection with the above, I am asking for excess personal income tax withheld in the amount of 910 rubles. (needed about):

(indicate bank details: name, BIC, correspondent account)

(indicate the personal account number to which the tax should be transferred)

V.N.
Bodrov December 10, 2013

December 10, 2013

One copy of this document remains in the accounting department, and the other with the employee.

In order to make correct entries in accounting, you must draw up an accounting certificate in which you need to state what the error was, indicate the correct amount of income, the amount of personal income tax - previously withheld and the one that needs to be withheld. After this, corrective entries must be made in accounting by the date the error was discovered or the last day of December.

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What if you are now paying a citizen an advance, but he will complete the work only next year and you will finally pay him off after signing the work acceptance certificate? Do I have to withhold personal income tax when paying an advance?

There is an opinion that there is no need to withhold personal income tax. Indeed, according to the Tax Code, income includes remuneration for work performed, sub. 6 clause 1 art. 208 Tax Code of the Russian Federation. And it turns out that until the certificate of completion of work is signed, the advance payment seems to be not income. Resolution of the Federal Antimonopoly Service No. F09-7355/11 dated November 14, 2011; FAS MO dated December 23, 2009 No. KA-A40/13467-09.

In such a situation, you need to focus on the date of receipt of income. For any income in cash (except for wages), the date of receipt is the day the income is paid (the day the money is transferred to the citizen’s bank account or on his behalf to the accounts of third parties or the payment of money from the cash register) sub. 1 clause 1 art. 223 Tax Code of the Russian Federation.

And with each payment of income, the organization must withhold personal income tax from it and transfer it to the budget. 4, 6 tbsp. 226 Tax Code of the Russian Federation. In addition, the Supreme Arbitration Court decided back in 2009 that an advance payment for the performance of work (provision of services) for the purpose of calculating personal income tax is recognized as an individual’s income at the time of its receipt. Resolution of the Presidium of the Supreme Arbitration Court of June 16, 2009 No. 1660/09. After all, the person received the money and the economic benefit is obvious. 41 Tax Code of the Russian Federation.

So on the day of transferring the advance (in cash) to a citizen under the GPA, you must withhold personal income tax and transfer it to the budget. 1 clause 1 art. 223, paragraphs. 4, 6 tbsp. 226 Tax Code of the Russian Federation.

Once you have verified everything, you can easily fill out 2-NDFL certificates for employees for 2013.

Taxable income of an employee in 2014 and the amount of personal income tax

Solution. Calculation of personal income tax until the submission of documents for children's deduction

For the period January-April 2014, the amount of employee income, calculated on an accrual basis from the beginning of the year, amounted to 88,000 rubles.

In the absence of documents about the birth of a child, the accountant calculated the amount of personal income tax without taking into account the child deduction.

Since the beginning of the year, the total amount of tax actually withheld was 11,440 rubles. (RUB 88,000 x 13%).

Recalculation of personal income tax after receiving documents for children's deduction

After receiving from I.P. Rokotov’s application for a child deduction and a copy of the child’s birth certificate, the accountant determined that the amount of personal income tax to be withheld from the employee’s salary for January-April 2014 should have been 11,258 rubles. [(RUB 88,000 - RUB 1,400) x 13%].

Consequently, for the period January-April 2014, the accountant withheld personal income tax from the employee’s income by 182 rubles more. (RUB 11,440 - RUB 11,258).

The tax period has not yet ended, the employee continues to work in the same company, his income will be taxed at the same rate at 13%.

No special actions with overpayment of personal income tax in the amount of 182 rubles. There is no need for an accountant to do this. It will be automatically credited when calculating personal income tax for May.

After the recalculation, the excessively withheld personal income tax amount can be seen in the debit of account 68 of the “Personal Income Tax Payments” subaccount.

Calculation of personal income tax from salary for May

Personal income tax is calculated on an accrual basis from the beginning of the year.

To calculate the amount of tax to be withheld from wages for May, the accountant will determine for the period January-May 2014:

- amount of income - 1,10,000 rubles;

- amount of deductions - 2800 rubles. (1400 rub. x 2 months);

- amount of taxable income - 107,200 rubles. (RUB 1,10,000 – RUB 2,800);

— the total amount of personal income tax subject to withholding is RUB 13,936. (RUB 107,200 x 13%).

The amount of personal income tax subject to withholding from wages for May is equal to the difference between the calculated amount of tax for the period January-May 2014 (13,936 rubles) and the amount of personal income tax actually withheld for the period January-April 2014 (11,440 rubles) (p 3 Article 226 of the Tax Code of the Russian Federation).

The amount of personal income tax subject to deduction from the salary for May will be 2,496 rubles. (RUB 13,936 - RUB 11,440).

In accounting, after the personal income tax for May is transferred, there will no longer be a debit balance in account 68 of the “Personal Income Tax Calculations” subaccount (provided that the personal income tax calculations for other employees are carried out correctly), since the excessively withheld tax amount is offset when calculating the personal income tax for May.

The amount of personal income tax from wages for May, if the employee had submitted documents on time

If the employee had submitted the application for the deduction and supporting documents on time, the accountant would have calculated personal income tax on the salary for April, taking into account the deduction.

Then the personal income tax for the period January-April would be 11,258 rubles. [(RUB 88,000 - RUB 1,400) x 13%]. And the personal income tax subject to deduction from the salary for May would be equal to 2,678 rubles. (RUB 13,936 - RUB 11,258). That is, 182 rubles more. (2678 rubles - 2496 rubles).

If the documents necessary to apply the tax deduction were available, excessive personal income tax withholding would not occur.

Employees were mixed up when transferring salaries

That is, the salary due to each employee was calculated correctly, personal income tax was calculated correctly and the total amount was transferred to the budget. But in the register, which is attached to the payment slip for transferring money to employees’ cards, two employees were confused. As a result, one was paid more, the other less.

The first thing to do is notify the employee you overpaid in writing of the mistake. And if he agrees to return the excess amount, he must confirm this in writing. If the employee agrees to return the entire amount at once, then the notification can be drawn up like this.

Limited Liability Company "Employer"

Ref.
No. 560 December 6, 2013 To senior manager V.N. Bodrov

NOTIFICATION

We inform you that for November 2013 you are due a salary in the amount of 26,100 rubles. However, due to an error when filling out the register for salary transfers to employee cards, the amount of 29,100 rubles was transferred to your card on December 6, 2013. Thus, you were paid RUB 3,000 in excess.

We invite you to return the overpaid money to the cashier before December 25, 2013 or agree to withhold the overpaid amount of 3,000 rubles. from your salary.

December 6, 2013

In connection with the above, I agree (as appropriate):

V.N.
Bodrov December 9, 2013

If the employee cannot pay the entire amount at once, then he can repay it in parts at his discretion in any amount, for example, 1000 rubles. every month.

This will not affect personal income tax calculations in any way.

But if suddenly the employee to whom you paid more refuses to return the amount received, then difficulties arise here.

The fact is that you can only deduct from an employee’s income the amount that was overpaid due to a counting error. 137 Labor Code of the Russian Federation. And as Rostrud specialists explain, an arithmetic error is considered a counting error, that is, an error made due to the incorrect application of arithmetic operations in calculations. Letter of Rostrud dated October 1, 2012 No. 1286-6-1.

But if, nevertheless, you regard your actions (indicating incorrect amounts in the salary transfer sheet) as an accounting error and withhold the overpaid amount from the employee’s subsequent income without his consent, then there is a risk that he will go to court.

The court may side with the employee, since, according to the courts, typos, clerical errors, and technical errors committed through the fault of the employer are not counting errors. And then you will have to return the overpaid amount withheld from the employee.

Keep in mind that if the employee refuses to return the amount overpaid to him, you will have to accrue it as the employee’s income and withhold personal income tax from it.

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Determine it depending on the type of income.

Conventionally, income from which personal income tax must be withheld by tax agents can be divided into two groups:

• income related to wages;
• income not related to wages.

The first type of income, in particular, includes:

1. remuneration based on work results for the year;
2. additional payments for performing work of various qualifications, when combining professions, when working overtime (night), on holidays,
   etc.
3. bonuses;
4. salary;

A complete list of payments that can be classified as income related to wages is given in Article 129 of the Labor Code of the Russian Federation. The second type includes all other income, for example: The dates of receipt of income for personal income tax purposes are shown in the table below.

General provisions

The Tax Code of the Russian Federation specifies various types of deductions that are available to employees and can be received through the employer in 2020. This list includes deductions for the purchase of real estate, expenses for education and treatment, as well as in a number of other situations. To use the service, you need to fill out an application, wait for the notification and submit it to the employer.

The Tax Code of the Russian Federation does not say from what month the accounting department must transmit the report to the employee (if the notification was sent in the summer months). The law does not indicate when the deduction should be provided - from the month of notification or from the beginning of the year. The mentioned document establishes only a year, and also mentions the person’s right to receive a deduction. As for the reporting month, this information is not available. For example, if an employee buys real estate and receives a notice, only the year is recorded in the document. There is no more precise information.

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Let us consider in detail the procedure for returning personal income tax in each of the above cases. How to offset personal income tax in this case?

For the remainder of the personal income tax returned to the employee in the amount of 5,000 rubles.

(24,000 - 18,000) the organization will reduce the personal income tax due to be transferred on 04/10/2019. As a result, the organization will pay a tax in the amount of 13,000 rubles to the budget. (18,000 - 5,000). Next, the return of the tax amount transferred to the budget system of the Russian Federation to the tax agent is carried out by the tax authority in the manner prescribed by Art.

78 of the Tax Code of the Russian Federation (we will consider returns under this article in detail below). Volkova, expert of the magazine “Payment in state (municipal) institutions”, April, 2020

Refund by tax agent

If the employer - tax agent does not have the funds to carry out a refund from the amounts withheld as future tax from the employee himself or other payers, as well as free personal funds, then he will be forced to apply to the Federal Tax Service. The refund procedure is regulated by Article 78 of the Tax Code.

The tax authority makes a decision on the application within 10 banking days. Moreover, the applicant may not receive his funds back if he owes taxes, penalties, fines and fees. In this case, the tax authorities will use the excess funds paid to pay off the debt, and the employer will be forced to pay the employee independently.

A former non-resident does not need to return personal income tax

If you have foreign workers and employees who often travel abroad, then by the end of the year you need to check their status. It can change from a non-resident to a resident if the employee spent more than 183 days in the Russian Federation this year. 2 tbsp. 207 of the Tax Code of the Russian Federation. Then, based on the income received since the beginning of the year, you can recalculate personal income tax for them at a rate of 13% instead of 30%.

But you have no right to return overpayment to such employees. Only the Inspectorate of the Federal Tax Service does this. 1.1 art. 231 Tax Code of the Russian Federation.

At the end of the year, you issue employees with 2-NDFL certificates, where in clause 5.6 the amount of excess tax withheld will be indicated - the difference between the transferred tax (clause 5.5 of the certificate) and the calculated tax (clause 5.3 of the certificate). You can tell the employee that he needs to go for a personal income tax refund to the inspectorate with which he is registered at his place of residence (at his place of residence - for citizens of the Russian Federation).

Answers to common questions about how to return overly withheld personal income tax

Question #1:

Does the Tax Code allow an employee to return excessively withheld personal income tax from the tax agent’s own funds with subsequent compensation from the budget?

Answer:

If an enterprise does not have personal income tax to pay to the budget, funds can be requested from the budget by sending a corresponding application to the Federal Tax Service. In this case, despite the fact that the employer would have met the three-month deadline for returning the overly withheld tax to the employee, he is allowed to give him money from his own funds, without waiting for the transfer of personal income tax from the budget, and then receive compensation from the budget.

Question #2:

Is it necessary to notify an employee that he needs to recalculate personal income tax in connection with a change in status from non-resident to resident?

Answer:

No, you do not need to report the need to recalculate the tax; this will be handled by the tax office.

Salary income tax - personal income tax in 2019

In this case, it is necessary to withhold it from the subsequent payment, taking into account the above interest limit.

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As for the taxation of non-residents, personal income tax on wages, as well as on their other labor income, is levied at 13% on:

• citizens who fled their state and applied for temporary asylum in the Russian Federation.
• residents of the EAEU member states;

At the same time, the definition of the concept of “labor income” is not provided in the legislative framework.

Federal Law No. 115 of July 25, 2002 provides only a definition of the labor activity of a foreigner. Consensus was reached on December 8, 2015.

Amounts subject to tax

Personal income tax (personal income tax) is a direct tax that is levied on such individuals on the territory of the Russian Federation. They are taxed on all income in the aggregate, usually in the amount of 13% of its cash or in-kind form. All people of working age, one way or another, are payers of personal income tax. For example, it is withheld from the following funds:

• from payments for sick leave;
• from salaries;
• from bonuses;
• from valuable gifts worth more than 4 thousand rubles;
• from income from the rental of real estate;
• from income from the sale of real estate;
• from fees;
• from winnings, etc.

In accordance with the Tax Code, the employer, being a tax agent, is obliged to calculate and withhold the amount of personal income tax from the employee’s wages and other income. Subsequently, these funds must go to the treasury in the form of taxes.