The Pension Fund is asking for the money back (they accrued more pensions than they should have). About counting error Definition of counting error by the Supreme Court
Today we will dedicate the issue to the topic “counting error”. In our first issue of a weblog about the return of overpaid funds, we touched on this concept a little, but now let's talk in more detail why this definition is important and in what case is it applied?
To do this, we recall that in accordance with clause 3, part 1, art. 1109 of the Civil Code of the Russian Federation, wages (in our case, monetary allowance) and payments equivalent to it are not subject to return (i.e., withholding from a serviceman in case of overpayment) as unjust enrichment, in the absence of dishonesty on his part and a calculation error.
Thus, counting error is one of the legal grounds.
So what is a counting error?
Everything is very simple - as the Supreme Court of the Russian Federation indicated in the Ruling of January 20, 2012 No. 59-B11-17, an error made in arithmetic operations should be considered a counting error. These are actions related to counting - when incorrect results are obtained when adding, subtracting, dividing, multiplying.
In addition, you should know that if an arithmetic error is made, then a Report on detection of a counting error. The act is usually drawn up in any form.
Due to the fact that accounting programs are now mainly used, many of course have a question:
What if the accountant entered the data into the program incorrectly, made a mistake. Is this a counting error?
In fact, entering data incorrectly into a program is called technical error. And as the RF Armed Forces pointed out, technical errors, including technical errors committed through the fault of the employer, are not countable. This means that due to a technical error, the employer will not be able to recover excessively overpaid amounts from wages.
The court also recognizes a technical error if it was caused by low qualifications or negligence of the accountant, since most of them work with programs that already have all the necessary formulas.
Along with a technical error, a technical failure of the program. If there is a technical failure in the program, then to confirm it, the employer must provide as evidence a report or conclusion from an IT specialist about problems in the operation of the program. The court equates the incorrect operation of a program with indisputable evidence to a counting error.
Thus, you need to understand that in the event of an overpayment being detected and upon presentation of a demand from the UFO, the ERC for the return of excessively accrued and paid allowances, the deduction itself is allowed only with the voluntary consent of the serviceman. In the absence of such consent, the collection of funds must take place through the court; in this case, the relevant body is obliged to prove the presence of guilty and dishonest actions on the part of the serviceman, or the presence of a counting error, including he will be obliged to submit to the serviceman, and subsequently to the court, the corresponding Discovery Report counting error.
If there is no such evidence, there is a high probability that the court will refuse to satisfy the claim to withhold money from the serviceman.
All of the above is perfectly illustrated by the table given in our video, from which you can see what is and what is not related to a counting error.
Especially for NachFin.ifo
military lawyer Marina Baidak
The employer has the right to return the overpaid amount of earnings if he made a calculation error. To do this, it is necessary to obtain the employee’s consent or prove this fact in court.
The excess payment can be made to either a current employee or a terminated employee.
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If a citizen works for a company, his consent to retention is sufficient. The employer must ensure that the overpayment is due to incorrect mathematical calculations. Then you need to invite the employee to deposit the money within the prescribed period or obtain his permission to withhold. He must write a statement on the basis of which an order is prepared for a monthly deduction of 20% of the salary.
If the employee who received the excess amount has already been dismissed, then compensation must be made through the court. Documents confirming the arithmetic error and a detailed calculation algorithm are submitted to arbitration.
If a program fails, a programmer's report should be prepared for the court, which identifies the problems and indicates their impact on the outcome of the computational actions.
In Art. 137 of the Labor Code lists all cases in which deduction of overpayments from earnings is possible by law.
Often the issue of returning an overpayment is resolved in court, because the worker refuses to return it voluntarily. An employer can count on a positive court decision if there is a counting error or a glitch in the program. In case of technical inaccuracies and incorrect application of standards, the money will remain with the employee.
What is it
There is no specific definition of a counting error in any regulatory document regulating labor relations in the Russian Federation.
An error made when performing arithmetic operations is recognized as a counting error, i.e. an incorrect result of division, multiplication, addition or subtraction. This is evidenced by the Determination of the Armed Forces of the Russian Federation No. 59-B11-17 dated 01.20.12 and the letter of Rostrud No. 1286-6-1 dated 10.01.12.
If such an inaccuracy is detected, a corresponding act is drawn up in any form.
An accounting error when calculating wages is a legal basis for withholding an overpayment from the income of the employees when calculating it.
If there is no fact of a citizen’s dishonesty or an error in calculations, he is not obliged to return the excess salary he received (clause 3 of Article 1109 of the Civil Code).
Nowadays, accounting is mainly carried out using accounting programs. If the calculator made a mistake when entering data into it, this is considered a technical error due to the fault of the employer. It does not apply to invoices and any overpayment resulting from it is not subject to reimbursement.
Excess amounts issued due to inaccuracy committed by the calculator due to his low qualifications or negligence are not returned. The programs in which accountants work already contain all the necessary formulas for the correct calculation of staff remuneration.
If the program fails, the employer needs to call a specialist servicing it, who must document this fact. If there is supporting paper, the court may equate the incorrect functioning of the program with a counting error.
If an overpayment is discovered, it can be withheld from the employee’s earnings only with his consent or by a court decision. In the latter case, the guilt or dishonest actions of the employee must be proven or a counting error must be established. The employer must provide the relevant document to the employee and the court.
In the absence of evidence, the court will not satisfy the request to withhold the overpayment from the worker.
The definition of a counting error should be fixed in, for example, the Collective Agreement. To consider the fact of overpayment to the employer, it is necessary to create a special commission. It can include a chief accountant, a personnel officer, a financial manager, and an administrator. The functions of the chairman can be assigned to the director.
The worker must be familiarized with the commission’s conclusion.
Technical oversight
Incorrect data entry is considered a technical error. This is how courts often characterize a mistake made by an accountant. In this case, the overpayment by the employee is not refunded.
Such errors, for example, include:
- misapplication of tax benefits;
- choosing the wrong coefficient when calculating salaries;
- entering incorrect initial data for calculations, etc.
It is almost impossible to reclassify such deficiencies as counting ones.
The court will refuse to reimburse the overpayment if there is no connection between a malfunction in the program and an arithmetic error. Technical problems themselves cannot indicate a counting error, so a conclusion from an appropriate specialist is required to prove this relationship. In this situation, an act of discovery of inaccuracy is not needed.
In judicial practice, the following are recognized as technical errors:
- incorrect entry of information into the program;
- double transfer of earnings and other payments;
- payment of remuneration for a period on various grounds;
- failure to comply with the rules established by regulatory documents.
The employer must remember that in the event of a counting error, withholding an overpayment from an employee’s earnings without his consent is illegal (Part 3 of Article 137 of the Labor Code).
Otherwise, the worker may sue, which will oblige the company to return the money and compensate the citizen for moral damages. The arbitrators will not examine the grounds and legality of the withholding.
To obtain consent from the employee, you must prepare a notice to him in writing. The employee can write an application for a refund or fill out the appropriate notification fields. The worker must write that he agrees with the reason and amount of the withholding.
Upon receipt of approval from the employee, the employer can set a certain period for him to return the money, for example, 3 days, as for travel expenses. Upon expiration of the period, the manager has the right to issue an order to withhold the amount within a month. The order is issued only with consent.
If the employee refuses or misses a month's deadline, the overpayment can only be returned by a court decision.
Evidence of accounting error in payroll
For legal proceedings, the employer will be required to provide an explanatory statement from an accountant.
Apply to it:
- mathematical calculation with an error;
- payslips;
- statements of accrual and payment of earnings.
Often the employer refers to a software error. It does not refer to the company’s failure to comply with legal requirements, therefore it can also be considered as an accounting if there is an evidence base.
If the accountant made a mistake or typo, the money can often be returned. For example, when transferring to a worker an amount much greater than the required amount.
Deduction from employee income
Money from an employee’s earnings may be withheld based on the following regulatory documents:
| Tax Code of the Russian Federation, clause 4, art. 226 | The employer is obliged to withhold personal income tax from the employee’s salary. |
| RF IC Art. 109 | The organization must deduct alimony from the employee’s income and transfer it to the recipient’s account. The basis for this is a writ of execution or an agreement certified by a notary. |
| Law on enforcement proceedings No. 229-FZ dated 02.10.07 | Based on clause 3 of Art. 98, the debtor’s employer must make deductions from his earnings according to the writ of execution in accordance with the requirements contained therein. |
| Law on state benefits for citizens with children No. 81-FZ of May 19, 1995 | Art. 19 obliges the company to withhold from the income of employees overpayment of benefits resulting from the fault of the workers. For example, due to concealment of information affecting the size and purpose of payments, provision of false papers. |
| Law on social insurance No. 255-FZ of December 29, 2006 | Clause 4 of Art. 15 states that overpaid amounts of benefits from the Social Insurance Fund are recovered from the recipient if the fact of his dishonesty is revealed or if an accountant makes a calculation error. |
In Art. 137 of the Labor Code states that deductions from a worker’s earnings to pay off a debt to the company are possible in the following cases:
- to reimburse an advance that was issued against earnings and was not worked out;
- to repay unspent and not returned on time advances issued for a business trip, official trip or other purposes;
- to return an overpayment to an employee due to a calculation error or when the authorized body recognizes the worker’s guilt in non-compliance with labor standards or downtime;
- when an employee is dismissed before the end of the period for which he has already taken paid leave.
The employer must make a decision to return the overpayment within one month from the date when the advance should have been returned, the debt was repaid, or an accounting error was identified. The employee must agree to the withholding.
Example
In accordance with Art. 138 of the Labor Code, the amount of all deductions from an employee’s monthly salary cannot exceed 20%.
Example:
For April 2019, plumber V.V. Kholopov LLC received a salary of 16 thousand rubles. By order of the manager, for this period he is entitled to a bonus of 4,800 rubles.
The accountant accrued RUB 22,800 to the employee. and made the payment minus personal income tax (22,800 - 13% = 19,836 rubles).
A month later, the accountant discovered a calculation error when calculating wages in the amount of 1,740 rubles. (19,836 – (20,800 – 13%)).
To record the fact of a counting error, a commission was created in the LLC, to which the accountant wrote an explanatory note. The mistake was ruled to be arithmetical. They decided to collect it from the employee’s earnings for May 2019.
A notification about this was sent to V.V. Kholopov and he confirmed his agreement with the situation.
Reflection in accounting
If the employee agrees to return the excess amount given to him to the cashier, the accountant must reflect this in postings.
They are presented in the table for a budgetary institution:
The detected overpayment is confirmed by a certificate f. 0504833, on the basis of which the amount is reflected in the accounting registers. Overpayments from previous periods are counted as income. The employee returns the amount minus personal income tax.
Correction of personal income tax calculation
In accordance with paragraph 3 of Art. 226 of the Tax Code of the Russian Federation, if a counting error is detected after personal income tax has been withheld, its excess amount can be taken into account when calculating earnings for future periods.
If tax was over-deducted and paid in the previous period, you can take it into account in the current month, i.e., transfer less to the budget by the amount of the overpayment. The excess should be credited automatically.
If the amount of personal income tax being reversed is greater than the amount accrued in subsequent periods, the worker will be subject to excess tax withholding. This situation is possible upon dismissal. The employer is obliged to return this money at the request of the employee. This procedure is provided for in Art. 231 Tax Code of the Russian Federation.
The activities of state (municipal) institutions are subject to control by various bodies, including the founders. Checking labor costs can be included in the audit program for all financial and economic activities of an institution or can be identified as an independent object. In the article we will consider the classification of detected errors and violations in the payment of labor, as well as the procedure for correcting mistakes made using practical examples.
Conventionally, all errors and violations that occur when checking labor costs can be divided into two groups:
- counting errors that arise from incorrect (incorrect) calculation and reflection of data in accounting registers;
- violations arising from incorrect application of the legislation of the Russian Federation.
Counting errors in payroll calculations
Counting errors are quite common; they are made not only when calculating wages and vacation pay, but also when calculating social benefits. For example, when calculating wages, an accountant will add up payments incorrectly, thereby overpaying the employee.As VAS pointed out in Determination dated January 20, 2012 No. 59-В11-17,The concept of “counting error” is not disclosed in labor legislation. Based on the literal interpretation of the norms of current labor legislation ( Art. 137 Labor Code of the Russian Federation), An error made in arithmetic operations (actions related to counting) should be considered counting. . Thus, if an accountant, when calculating wages, incorrectly added up payments due to an employee, he made a counting error. At the same time, computer payroll programs often malfunction, resulting in technical errors, for example, instead of 15,000 rubles. The figure entered into the calculation is 1,500 or 150,000 rubles. As noted in the above-mentioned definition of the Supreme Court, technical errors committed through the fault of the employer are not countable. Why is the correct qualification of a mistake so important? The answer to this question follows from the norms given in Art. 137 Labor Code of the Russian Federation. By virtue of the provisions set forth in this article, deductions from an employee’s salary are made only in cases provided for by the Labor Code of the Russian Federation and other federal laws.
If the employee was overpaid, deductions from the amounts due to him to pay off the debt to the employer can only be made due to accounting 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 or simple. Similar explanations are given in Letter of Ros-Labor dated 10/01/2012 No. 1286-6-1 . Thus, it is impossible to withhold wages overpaid to an employee due to a technical error without the employee’s consent, since these actions will be unlawful.
If an employee quits, the employment relationship with him is terminated, the amount of money overpaid to him can be reimbursed only on a voluntary basis or by applying the organization to court. When going to court, you should follow the rules Ch. 60 Civil Code of the Russian Federation.
Similar decisions were made in definitions of the Supreme Arbitration Court of the Russian Federation dated January 20, 2012 No. 59-В11-17, RF Armed Forces dated 05/07/2010№ 51-B10-1.
How to correct an accounting error in accounting? The answer to this question is given in clause 18 Instructions No. 157n :
- if an error for the reporting period is discovered before the balance sheet is submitted and does not require changing the data in the transaction journals, the correction is made by crossing out the incorrect amount and text and writing the corrected text and amount above the crossed out. At the same time, in the accounting register in which the error is corrected, in the margins opposite the corresponding line, signed by the chief accountant, the inscription “Corrected” is made;
- if an error is discovered before the presentation of the balance sheet and requires changes in the transaction journal, depending on its nature, the correction is made using the “red reversal” method or an additional accounting entry on the last day of the reporting period;
- if an error is discovered in the accounting registers for the reporting period after the preparation of financial statements, the correction is made using the “red reversal” method or an additional accounting entry on the day the error was discovered.
Let's look at examples of how to correct a counting error.
Example 1.
When calculating wages in May 2014, an employee of a budgetary institution made a counting error: instead of 25,000 rubles. he was accrued a salary of 26,000 rubles. The error occurred as a result of incorrect actions when adding up payments. The employee's salary was calculated from funds received from the provision of paid services and transferred to his plastic card.
The return of overpaid wages to the employee was made by depositing funds into the institution's cash desk.
Instruction No. 174n
| Contents of the operation | Debit | Credit | Amount, rub. |
| The amount of wages accrued to the employee | 2 109 60 211 | 2 302 11 730 | 26 000 |
| Personal income tax withheld (RUB 26,000 x 13%) | 2 302 11 830 | 2 303 01 730 | 3 380 |
| Insurance premiums accrued to extra-budgetary funds (RUB 26,000 x 30.2%) | 2 109 60 213 | 2 303 00 730 | 7 852 |
| Reflects the payment of wages by transferring funds to the employee’s plastic card (26,000 - 3,380) rub. | 2 302 11 830 | 2 304 03 730 | 22 620 |
| Fixed a counting error using the “red reversal” method when calculating wages | 2 109 60 211 | 2 302 11 730 | (26 000) |
| The calculated insurance premiums were corrected using the “red reversal” method (RUB 25,000 x 30.2%) | 2 109 60 213 | 2 303 00 730 | (7 852) |
| Corrected the “red reversal” method for accrued personal income tax (RUB 25,000 x 13%) | 2 302 11 830 | 2 303 01 730 | (3 380) |
| Reflects the entry of excess amounts paid to the employee into the institution's cash desk (22,620 - 21,750) rub. | 2 201 34 510 | 2 302 11 730 | 870 |
| The deposit of cash into the institution's personal account is reflected | 2 210 03 560 | 2 201 34 610 | 870 |
During an inspection at a government institution, it was discovered that employees' wages for November 2013 were overcharged in the amount of 14,000 rubles. (salaries in the amount of 16,000 rubles were subject to accrual), which were paid by employees to the organization’s cash desk, deposited in the bank and transferred to budget revenue.
What entries should the accountant make for this transaction in 2014?
In accounting, these entries are according to Instructions No. 162n will look like this:| Contents of the operation | Debit | Credit | Amount, rub. |
| An error related to the identification of over-accrued wages in November 2013 using the “red” method has been fixed. | 1 401 20 211 | 1 302 11 730 | (30 000) |
| Wages were accrued in accordance with the calculation based on the results of the audit (additional entry) | 1 401 20 211 | 1 302 11 730 | 16 000 |
| At the same time, debt from previous years was accrued, subject to transfer to budget revenue on the basis of a notice (f. 0504805) submitted by the recipient of income to the revenue administrator | 1 304 04 180 | 1 303 05 730 | 14 000 |
| Employees deposited excess wages into the cash register | 1 201 34 510 | 1 302 11 730 | 14 000 |
| Funds have been deposited into the institution's personal account | 1 210 03 560 | 1 201 34 610 | 14 000 |
| Funds have been received into the institution's personal account | 1 304 05 211 | 1 210 03 660 | 14 000 |
| Funds were transferred to the corresponding budget revenue | 1 303 05 830 | 1 304 05 211 | 14 000 |
In addition to adjusting accrued wages, you should recalculate the amount of insurance premiums accrued for these payments and personal income tax. The procedure for correcting errors in the calculation of insurance premiums and personal income tax is similar to the procedure given above. It is necessary to reverse erroneous accruals using the “red reversal” method and reflect in the accounting records the amounts of correctly accrued mandatory payments.
It should be noted that due to a decrease in the amount of the tax base for personal income tax, there is a decrease in the accrued tax, which is subject to refund to the taxpayer.
Violations arising from incorrect application of Russian legislation
There are quite a lot of violations that arise in connection with the incorrect application of the provisions of the legislation of the Russian Federation. They consist of non-compliance with certain norms of the Labor Code of the Russian Federation or other legal acts regulating the procedure for remuneration of employees of state (municipal) institutions. Most often, such violations arise due to insufficient legal literacy of accounting services. Let's list just a few of them.First of all, let us pay attention to the legality of accrual of certain payments. According to Art. 129 Labor Code of the Russian Federation An employee's salary has three components: salary (official salary), compensation and incentive payments. By virtue of general norms, the amounts of salaries (official salaries), wage rates must be established by the head of the institution:
- based on the requirements for professional training and level of qualifications that are necessary to carry out the relevant professional activity (professional qualification groups);
- taking into account the complexity and volume of work performed.
Considering violations in terms of payroll, I would like to note violations in terms of underpayments by the employer to its employees. The fact that such violations occur frequently in practice is confirmed by judicial practice. It's about compliance Art. 133 Labor Code of the Russian Federation, according to which the salary of an employee who has fully worked the monthly working hours or fulfilled the labor standards, taking into account all additional payments, allowances, incentives and compensation payments, cannot be lower than the minimum wage.
Currently, the minimum wage is 5,554 rubles. per month ( Art. 1 of the Federal Law of June 19, 2000 No. 82-FZ “On the minimum wage”).
The wages of employees of organizations located in the Far North and equivalent areas must be set at no less than the minimum wage. After calculating all payments, the regional coefficient and a percentage bonus for work experience in these areas or localities should be applied to it ( Review by the RF Armed Forces dated 02/26/2014, ruling of the RF Armed Forces dated May 17, 2013 No. 73-KG13-1, dated 12/21/2012 No. 72-KG12-6).
Example 3.
The official salary of a cleaner in the office premises of an autonomous institution is set at 3,500 rubles. In January 2014, she worked the entire period; in accordance with the collective agreement, she was given an additional payment for work on holidays in the amount of 20% of her salary. All expenses for paying wages are covered by subsidies allocated for the implementation of the state task.
The employee’s salary for January will be 4,200 rubles. (RUB 3,500 + RUB 3,500 x 20%).
Since the minimum wage from 01/01/2014 is 5,554 rubles, it is necessary to make an additional payment up to the minimum wage - 1,354 rubles. (5,554 - 4,200).
In accounting in accordance with Instruction No. 183n The following entries were made:
The next violation that I would like to draw attention to is non-compliance with the amount of deductions made from employees’ wages. According to Art. 137 Labor Code of the Russian Federation Deductions from an employee’s salary are made only in cases provided for by the Labor Code of the Russian Federation and other federal laws. The total amount of all deductions for each payment of wages cannot exceed 20%, and in cases provided for by federal laws - 50% of wages due to the employee.
When making deductions from wages under several executive documents, the employee must in any case retain 50% of the wages.
Limitations set Art. 137 Labor Code of the Russian Federation, do not apply:
- for deductions from wages when an employee serves correctional labor;
- to collect alimony for minor children;
- for compensation for harm caused to the health of another person, compensation for harm to persons who suffered damage in connection with the death of the breadwinner, and compensation for damage caused by a crime. The amount of deductions from wages in these cases cannot exceed 70%.
Thus, as the Orenburg Regional Court indicated in Appeal ruling dated April 16, 2013 No. 33-1860-2013 , withholding from the employee’s wages other claims on the part of the employing institution, if the obligations to execute executive documents have not been fulfilled and the total amount of deductions made on them is 50% (and in some cases - 70%), is unlawful.
Let's look at this violation with an example.
Example 4.
On June 2, 2014, the budgetary institution received two writs of execution:
- on the collection of alimony for a minor child - in the amount of 25%;
- on the return of debt for payment of transport tax - in the amount of 4,500 rubles.
We will check whether the deduction was carried out legally according to all enforcement documents.
Before calculating the amount of deductions for writs of execution, you should pay attention to the fact that the received documents have a different order. Therefore, guided Art. 111 Federal Law No. 229-FZ, first of all, child support for a minor child should be withheld. Their amount will be 3,393 rubles. (RUB 15,600 - RUB 2,028 x 25%), where RUB 2,028 - personal income tax amount for June 2014 (RUB 15,600 x 13%).
Next, you need to calculate the amount of deductions for payment of transport tax. The maximum withholding amount will be RUB 3,393. (RUB 15,600 - RUB 2,028 x 25%). Since the accountant withheld the entire amount of the debt (4,500 rubles > 3,393 rubles), these actions are illegal and are subject to adjustment. The accountant must return 1,107 rubles to the employee’s personal account. (4,500 - 3,393).
Please note that according to Art. 236 Labor Code of the Russian Federation the employee must be paid interest for the delay in payment of wages ( Letter of the Ministry of Labor of the Russian Federation dated December 25, 2013 No. 14-2-337 ). Failure to pay such compensation and other amounts due to the employee is a violation of labor legislation, for which the employer may be held administratively liable. An employee may go to court with a demand to hold the employer financially liable in terms of payment of interest for the delay in payment of wages.
In accounting, these transactions will be reflected as follows:
| Contents of the operation | Debit | Credit | Sum, |
| The employee's wages were accrued for June 2014* | 2 109 60 211 | 2 302 11 730 | 15 600 |
| Personal income tax withheld | 2 302 11 830 | 2 303 01 730 | 2 028 |
| Child support withheld according to writ of execution | 2 302 11 830 | 2 304 03 730 | 3 393 |
| Requirements under the writ of execution for payment of transport tax were withheld | 2 302 11 830 | 2 304 03 730 | 4 500 |
| Alimony was issued from the cash register to the claimant | 2 304 03 830 | 2 201 34 610 | 3 393 |
| Salaries issued from the cash register (15,600 - 2,028 - 3,393 - 4,500) rub. | 2 302 11 830 | 2 201 34 610 | 5 679 |
| The amount of deductions under the writ of execution has been corrected using the “red reversal” method | 2 302 11 830 | 2 304 03 730 | (1 107) |
| The missing part of the salary was given to the employee from the cash register | 2 302 11 830 | 2 201 34 610 | 1 107 |
To simplify the example, the calculation and transfer of insurance premiums are not considered.
The next violation we will consider is paying wages once a month. Let us remind you that Art. 136 Labor Code of the Russian Federation it is stipulated that wages to the employee must be paid at least every half month on the day established by the internal labor regulations, collective agreement, or employment contract. The provisions of this article are imperative, that is, mandatory for execution. Labor legislation does not provide for any exceptions to the established rule. It does not matter whether the employee works at his main place of work or part-time ( Letter of Rostrud dated November 30, 2009 No. 3528-6-1 ). In addition, officials of this department in Letter dated 03/01/2007 No. 472-6-0 indicated that the presence of an employee’s statement of consent to receive wages once a month does not relieve the employer from liability established by law. Requirements Art. 136 Labor Code of the Russian Federation fully apply to state (municipal) institutions.
Unfortunately, in practice there are cases when the norms of the above article are not observed. As the judges noted in Decision of the Leningrad Regional Court dated November 27, 2012 No. 7-685/2012 , the internal labor regulations of the organization indicated that wages are paid to employees no later than the last day of the month
and the 15th day of the month following the settlement month, and not on specific dates. This circumstance is a violation of the provisions part 6 art. 136 Labor Code of the Russian Federation
If money was transferred to an employee twice, such an error is not called a counting error. This means that the citizen is not obliged to return the money.
If the employer accidentally transferred money to the employee twice, the error is not called an accounting error. This is a technical error. In this case, it is impossible to get the money back. The counting error relates solely to calculations, the Supreme Court said. He explained to the lower courts how the provisions of Article 137 of the Labor Code of the Russian Federation are applied. It reads:Deductions from an employee's salary are made only in cases provided for by this Code and other federal laws. Wages overpaid to an employee (including in the event of incorrect application of labor legislation or other regulatory legal acts containing labor law norms) cannot be recovered from him, except in the following cases:
- counting error;
- if the body for the consideration of individual labor disputes recognizes the employee’s guilt in failure to comply with labor standards... or downtime;
- if the wages were overpaid to the employee in connection with his unlawful actions established by the court.
The ruling of the RF Armed Forces refers to a lawsuit between an organization from the Amur region and a former employee of the company. The company mistakenly transferred compensation to her card twice for unused vacation and a bonus. The employer wanted to return the money, but the defendant was in no hurry to give it back. At first, the courts recognized that she was right: there was no accounting error, the employee’s guilty or dishonest actions were not established, and there were no grounds for collecting overpaid amounts. However, the Presidium of the Amur Regional Court decided differently. In his opinion, the concept of a counting error is not limited only to incorrect arithmetic operations. He ruled: an arithmetic error, a typo, a typo, and even a double transfer of funds should be recognized as a counting error. The Judicial Collegium of the Supreme Court did not agree with this conclusion:
The court of first instance, based on the literal interpretation of the norms of the current labor legislation, came to the conclusion that a counting error should be considered an error made in arithmetic operations (actions related to counting), while technical errors, including technical errors made by the fault of the employer, are not countable. When considering the present case, the court did not establish any data indicating that the employer... made calculation (arithmetic) errors and is not available in the case materials. Also, the court did not establish the presence of guilty and dishonest actions on the part of the defendant, since the funds were transferred... in parts... and therefore she did not have the opportunity to provide for the overpayment of funds. There are no sufficient legal grounds to disagree with the interpretation given by the trial court of the provisions of the law.
We add that the court of first instance also referred to Article 8 of the International Labor Organization Convention of July 1, 1949 No. 95 “Regarding the Protection of Wages” and Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms. This position was also supported by the RF Armed Forces. Let us remind you that the Supreme Court of the Russian Federation is the highest judicial body in civil, criminal, administrative and other cases under the jurisdiction of courts of general jurisdiction. It is the directly superior court in relation to the supreme courts of republics, regional (regional) courts, courts of federal cities, etc. This is stated in the Federal Constitutional Law of December 31, 1996 N 1-FKZ “On the Judicial System of the Russian Federation”.
Accountants are people too and sometimes they make mistakes in their calculations. What to do if you overpaid your salary? Which error is considered countable and which is not? Of course, it is easier to correct the situation if the employee continues to work in the organization. But an excess payment may be made to a specialist who has already resigned. How to make a hold in this case? We will answer all questions in detail - you will find typical examples in this article.
There is no such concept in the Labor Code. However, since in practice inaccuracies are often discovered when calculating and issuing remuneration to personnel, Rostrud has issued separate clarifications on this topic. In accordance with Letter No. 1286-6-1 dated October 1, 2012, a calculation error when calculating wages is any error made as a result of inaccurate arithmetic operations. In other words, this is an incorrect calculation of wages due to the human factor.
How to withhold overpayment, that is, overpaid wages
The same Letter states that the withholding of erroneously paid, excess wages must be carried out in accordance with the norms of the stat. 137 Labor Code, that is, only in situations provided for at the federal level. The latter also includes overpaid wages resulting from a counting error.
But when calculating earnings, other inaccuracies are also possible, as a result of which the data will be calculated incorrectly. What do you mean? For example, the salary amount will be calculated incorrectly if:
- The employee used unpaid leave.
- Income tax was calculated incorrectly.
- The salary was issued twice.
- Compensation payments, etc. were repaid.
Is it possible to talk about arithmetic inaccuracies in such situations? In accordance with the Ruling of the Russian Armed Forces No. 59-B11-17 dated January 20, 2012, no accounting error occurs in the calculation of wages. The employer does not have the right to independently withhold the excess amount issued, since there were no mathematical operations or failures in the operation of computer equipment.
What should the enterprise administration do? How not to lose your funds and return money that was given to an employee in excess? To understand how to protect your interests, the rights of an employee and at the same time comply with legal requirements, first of all it is necessary to clarify which inaccuracies are recognized in the calculations as a calculation error in payroll and which are not. After the concepts are differentiated, it is necessary to determine whether the employee was overpaid or underpaid. In the second case, you need to transfer (issue from the cash register) the debt to an individual. Read more about what to do if you overpay below.
Procedure for withholding overpaid wages
As mentioned earlier, when paying an excess amount to an employee, the employer has the right to independently withhold it from the citizen (Part 2 of Article 137 of the Labor Code). The legal basis for the enterprise's actions in this case will be the detection of a counting error. The corresponding decision must be made within 1 month. from the day the overpayment was made. In this case, the employee must agree to a full refund.
When withholding, the employer should take into account the requirements of stat. 138 of the Labor Code on limiting the total amount of deductions from an employee’s earnings - no more than 20% in total of each salary. The calculation of the maximum amount of deductions is carried out by the accountant after the personal income tax has been subtracted, that is, from the salary to be issued “in hand”. In order for the employer’s actions to be documented, it is necessary to draw up and approve an order for the return of the overpayment from the manager.
Algorithm for deducting excess earnings as a result of a counting error:
- First, make sure that the inaccuracy resulted from incorrect arithmetic operations.
- Make corrections in your accounting and add the correct amount of remuneration.
- Form an order from the employer's manager to return the overpayment, indicating the basis for such an action, the employee's full name and the exact amount. If the amount of deductions exceeds 20% of total earnings, you will have to return the overpayment monthly until full repayment.
- Ask the employee for written permission to return the amount - it can be done in any form, the main thing is the signature of the individual.
- If the employee does not agree to return the overpayment, the employer will have to take legal action - according to Stat. 248 TK.
Employer's order to return overpayment for overpaid earnings - sample
Sapphire LLC
TIN 6164062075 Checkpoint 616401001 Rostov-on-Don st. Socialisticheskaya, 25 of. 7
“On deduction of overpayments from wages”
02/20/18 No. 15/2
In accordance with the legal requirements stat. 137 of the Labor Code and for the purpose of withholding overpayment of earnings resulting from a counting error
I order:
- Withhold from the salary of manager Ivanov I.I. for January 2018, an overpayment of 2,500 (Two thousand five hundred) rubles resulting from a calculation error.
- Accountant Filatova E.G. make cash deductions from earnings for January 2018, reflect the corrections in the accounting of Sapphire LLC.
General Director of Sapphire LLC _____________/Petrenko I.V./
Payroll accountant at Sapphire LLC____________/Sviridova N.P./
I got acquainted with the order on February 20, 2018.
Manager of Sapphire LLC________________/Ivanov I.I./
Application-consent of an employee to return excess earnings due to an accounting error - sample
General Director of Sapphire LLC
Petrenko Igor Vladimirovich
from manager Ivanov Ivan Ivanovich
Statement
I, Ivan Ivanovich Ivanov, do not object to the deduction from my salary for January 2018 of the amount of 2500 (Two thousand five hundred) rubles, which was given to me in excess due to a counting error that arose when calculating my salary for December 2017.
__________/Ivanov I.I./
Example of a refund of overpaid wages
Suppose, in the process of work of manager Ivanov I.I. December salary was issued incorrectly. The employee’s salary was 40,000 rubles, after withholding personal income tax, the employee should have received 34,800 rubles. Instead, he was given 37,300 rubles, the overpayment amounted to 2,500 rubles. How to make a refund of overpaid wages?
After discovering inaccuracies, the enterprise employee does not object to the withholding of the excess amount. To do this, the manager draws up a written consent statement, and the employer issues an order. When calculating for January, under conditions of equal salary, the employee will receive 2,500 rubles. less, that is, 32,300 rubles. In accounting for January you will need to make the following entries:
- D 44 K 70 for 40,000 rubles. – reflects the accrual of earnings for January.
- D 70 K 68.1 for 5200 rub. – calculated from personal income tax earnings.
- D 70 to 73 for 2500 rubles. – reflects the employer’s deduction of the amount of overpayment of earnings.
- D 70 K 50 – from the employer’s cash desk the salary was given to the employee minus the amount of deduction in the amount of 2,500 rubles.
What to do if the error is uncountable
If excessive deduction is recognized as a technical error, is it possible to recover the overpayment from the employee? In such a situation, a counting error does not occur, since there was no inaccuracy in the arithmetic operations, and the failure occurred due to various problems in the equipment. Consequently, it will not be possible to recover the overpayment from the employee even in court (Part 4 of Article 137).
It’s a different matter if the specialist himself “meets halfway” with the enterprise and agrees to voluntarily return the funds. To do this, the employer needs to prepare a notice and the employee needs to write a statement. After which the individual can return the overpayment to the organization’s cash desk, or the employer makes deductions from earnings for subsequent months.
Pay attention! If the organization, despite the absence of a counting error, collects money without the employee’s consent, the latter has the right to go to court for compensation and moral compensation.
What to do if the employee has already quit
Often, errors in settlements with personnel are discovered after the dismissal of an employee. The accountant can identify inaccuracies himself or through an audit. What to do in this case? Is it possible to somehow withhold the amount of overpayment from a former employee? There are several ways out of this situation:
- Ask a person to voluntarily return excess amounts of earnings - when returning advance accruals, the employer does not need to make any accounting adjustments. If the employee returned the salary, you will have to make corrections in the postings. This applies not only to wages themselves, but also to personal income tax, as well as insurance premiums. Don’t forget to notify the specialist to refund the overpayment and request written consent.
- Go to court to resolve the dispute - in a situation where a person flatly refuses to voluntarily repay debts on wages, the employer will have to act through the court. An enterprise has the right to demand a refund in case of a counting error on the basis of stat. 248 TK. When contacting the judicial authorities, you will need to provide an employment contract with a former employee, an act of identifying an accounting inaccuracy, documentation of earnings calculations, and a notice to the employee with an offer to repay the overpayment voluntarily.
- Forgive an employee's debts - when an overpayment of wages is forgiven, the balance of the debt will be listed on the account. 70 before the expiration of the claim period, that is, within 3 years. Then the amounts are debited to the account. 91. No adjustments need to be made for insurance premiums and income taxes.
Is it possible to withhold overpaid wages from the culprit of the error, that is, the accountant? This can be done if an agreement on financial responsibility according to Statute has been concluded with the official. 244 TK. In particular, the signing of such an agreement is required when hiring a chief accountant (Article 243). If such an agreement was not concluded, it will not be officially possible to recover money for damage in the form of overpayment of earnings.
Conclusion - in this article we described in detail which accountant errors when calculating salaries for staff are considered countable and which are not. The procedure for deducting overpayments from an employee is given in accordance with the requirements of labor legislation. At the same time, in addition to the fact that it is necessary to correctly recalculate obligations, it is also necessary to correctly document transactions in accounting and personnel records.
For your convenience, we have provided samples of orders and employee consent to deductions. Keep in mind that such documents are not regulated at the regulatory level in any way. Each enterprise can develop its own forms with the obligatory indication of the necessary details.
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