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

Procedure for deducting 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 Labor Code of the Russian Federation):

• The employee did not work out the funds previously issued to the employee or did not return them. An example is failure to provide a report on a business trip or for accountable money. Or the employee was paid an advance, which he did not work off. In some cases, it is also possible to withhold vacation pay, for example, when the employee’s vacation was provided in advance and the employee resigns. It is important to remember that vacation pay cannot be withheld if an employee quits due to layoffs or conscription into the army;
• The employee was overpaid due to an accounting error. Or, due to an accounting error, the employee received a large amount of vacation pay or benefits.

Accountant mistakes

Counting errors

Countless mistakes

Incorrect initial data was entered into the accounting program, for example, salary, date of employment, date of dismissal, percentage for calculating bonuses, etc.; The accounting program crashed, resulting in wages being calculated incorrectly; When calculating wages, large indicators were taken into account regarding the volume of work performed

In one billing period the salary was transferred twice; The employee’s salary was transferred to the card, and he received it at the cash desk; The employee was provided with a personal income tax deduction without justification; When calculating the average salary, excluded payments were taken into account; An incorrect algorithm was entered into the program to calculate benefits or sick leave; When calculating benefits, the employee's insurance length was incorrectly calculated; The salary was transferred to an employee who quit last month; At the direction of the labor inspectorate, the employee’s salary was accrued, and then the court declared the order illegal

Procedure for reimbursement of overpayment

Depending on the situation in which the overpayment arose, the algorithm for its compensation will vary:

1. The employee received a payment in an amount greater than what was due due to his own fraud (for example, the submitted documents contained deliberately false data) or the overpayment arose due to the fact that the employee did not report the advance payment or did not work it out. In this case, you first need to determine whether the employee agrees to the deduction, and also find out whether more than one month has passed from the date the overpayment was established. If 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 salary. 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 Labor Code of the Russian Federation).
2. The overpayment occurred as a result of an accounting error. In this case, it is necessary to find out whether accounting error counting If this is the case, 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 himself.

Evidence of a counting error

Conditions for withholding overpayments

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

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

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

How to return an overpayment of wages due to the fault of an accountant

What to do if an employee quits

The employer can deduct the overpayment only from the employee’s salary (137 Labor Code of the Russian Federation). However, if the employee has already quit, this cannot be done. If the employee does not want to voluntarily return the overpayment, the employer has the right to go to court. In this case, it is necessary to prepare evidence that the error due to which the overpayment was transferred was countable.

Adjustment of accounting, personal income tax and insurance premiums

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

Business transaction	Wiring
	D	TO
An advance was paid to the employee	70	51
The overpaid amount was reversed	20	70
The employee is paid a salary	20	70
Accrued on salary insurance premiums	20	69
Basic salary paid minus withholding amounts	70	51
Personal income tax withheld	70	68

ON THE. Matsepuro, lawyer

What amounts overpaid to an employee can be withheld from his salary?

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

• <или>the employee causing material damage to the employer;
• <или>payments to an employee of excess amounts within the framework of an employment relationship (hereinafter referred to as excess payments) Art. 137 Labor Code of the Russian Federation.

The procedure for withholding excess payments differs from the procedure for withholding amounts of damages. Let's see what constitutes excess payments, how they can be withheld from an employee, and what to do if this fails.

Types of excess payments

From salaries Art. 129 Labor Code of the Russian Federation the employee is allowed to be detained Art. 137 Labor Code of the Russian Federation:

• vacation pay for unworked vacation days. Such debt may arise if an employee is dismissed before the end of the working year for which he has already received annual paid leave. You can deduct the employee's debt from the “severance” payments due to him. However, upon dismissal for some reasons, overpaid vacation pay cannot be withheld. Art. 137 Labor Code of the Russian Federation. For example, upon dismissal:

Due to a reduction in staff or number of employees in clause 2 art. 81 Labor Code of the Russian Federation;

The employee’s refusal to transfer to another job, which is necessary for him according to a medical certificate, or the employer’s lack of appropriate work clause 8 art. 77 Labor Code of the Russian Federation;

Conscription for military service clause 1 art. 83 Labor Code of the Russian Federation;

Reinstatement of an employee who previously performed this work for clause 2 art. 83 Labor Code of the Russian Federation;

• unearned salary advances. This debt may arise, for example, when an employee was paid an advance payment of wages for that month at the beginning of the month, and the employee, without having worked it, went on vacation at his own expense or on sick leave before the end of the month;
• unspent and unreturned accountable amounts, including those issued when sent on a business trip Letter of Rostrud dated March 11, 2009 No. 1144-TZ;
• payments for non-compliance with labor standards or simply e Articles 155, 157 of the Labor Code of the Russian Federation. Such a debt will arise if you pay an employee for downtime or shortcomings on the basis that they occurred 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, excess payments can be withheld only after you go to court and the court establishes the employee’s fault for idle time or poor performance. Determination of the Moscow Regional Court dated December 15, 2011 No. 33-25895;
• amounts overpaid due to an accounting error. Moreover, this is not necessarily a salary. This also includes any amounts erroneously paid to an employee as part of or in connection with the employment relationship. Rostrud specialists also think the same.

FROM AUTHENTIC SOURCES

Deputy Head Federal service on labor and employment

“According to Art. 137 of the Labor Code of the Russian Federation, the employer may withhold from the employee’s salary (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 accounting errors. The range of these amounts is not limited by this article. Therefore, any overpayments and compensations provided for by labor legislation, local regulations of the organization, collective or employment contract, for example benefits, financial assistance, payment for travel to the place of training, compensation for the use of the employee’s personal property, insurance coverage for insurance against industrial accidents 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 work (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 in areas exposed to radioactive contamination, and other payments of a compensatory nature) and incentive payments (additional payments and allowances of an incentive nature, 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 countable, that is, errors made as a result of incorrect application of the rules of mathematics and Letter of Rostrud dated 01.10.2012 No. 1286-6-1. Therefore, courts, as a rule, do not recognize the following errors as counting:

• the same amount was transferred twice due to a technical error Determination of the Supreme Court dated January 20, 2012 No. 59-B 11-17;
• When calculating, previously paid amounts are not taken into account. Determination of the Sverdlovsk Regional Court dated February 16, 2012 No. 33-2365/2012; Cassation ruling of the Krasnodar Regional Court dated February 14, 2012 No. 33-3340/12;
• Incorrect initial data were used in the calculation (for example, the wrong tariff or coefficient Appeal ruling of the Oryol Regional Court dated June 20, 2012 No. 33-1068, not the same number of days Cassation ruling of the Khabarovsk Regional Court dated 02/08/2012 No. 33-847/2012);
• salary in the program is calculated in double size due to an error in the calculation algorithm Appeal ruling of the Bryansk Regional Court dated 05/03/2012 No. 33-1077/12;
• When calculating, the norms of the local regulatory act of the organization were incorrectly applied Appeal ruling of the Moscow City Court dated July 16, 2012 No. 11-13827/12.

For information on what to do if you overpaid an employee's benefits, see:

Courts reach other conclusions extremely rarely. For example, the Samara Regional Court indicated that counting errors include not only arithmetic errors, but also failures in software and Determination of the Samara Regional Court dated January 18, 2012 No. 33-302/2012.

WE WARN THE MANAGER

If the employee was overpaid as a result of an uncountable error and he refused to return these amounts voluntarily, it will be possible to recover them from him only in court as unjust enrichment Art. 1102, paragraph 3 of Art. 1109 Civil Code of the Russian Federation.

And the Rostov Regional Court, reviewing a case in which “severance” payments were transferred to a dismissed employee by mistake, came to the conclusion that there was a counting error. Since the total amount of transfers exceeded the amounts accrued in favor of the employee Cassation ruling of the Rostov Regional Court dated September 12, 2011 No. 33-12413.

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

Procedure for withholding excess payments

It varies depending on what amounts you overpaid the employee.

Deduction of vacation pay for unworked vacation days

Everything is simple here. The employee's consent is not required. You just need to calculate the overpaid vacation pay, issue an order (instruction) to withhold free form, familiarize the employee with it under signature Articles 22, 137 of the Labor Code of the Russian Federation. And then withhold the debt from the “severance” 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 deduction Art. 138 Labor Code of the Russian Federation;.

Also, do not forget to give the employee a pay slip indicating the type and amount of deduction. Art. 136 Labor Code of the Russian Federation.

Withholding of other excess payments

They can be deducted from the employee’s salary only if the following conditions are met: Art. 137 Labor Code of the Russian Federation.

CONDITION 1. The period established for the return of excess payments has expired

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

• unspent unspent amounts clause 4.4 of the Regulations, approved. Central Bank 10/12/2011 No. 373-P - on the next working day after the expiration of the period for which money was issued to purchase something, or on the day of returning to work after a business trip or after illness. And if the manager sets a deadline for making final payments on approved advance reports, then - within this period;
• payments for failure to comply with labor standards or idle time if the court establishes the employee’s guilt - on the day the court decision enters into force;
• amounts overpaid due to an accounting error and unpaid salary advances- within the deadline established in local regulations companies. If it is not established, then the employee should be given (sent by mail) a notice in which he must indicate what debt has arisen, in what amount and within what period it must be repaid. You set the deadline at your discretion. For example, you can issue a notification like this:

Limited Liability Company "Profile"

Ref. No. 87
12.11.2012

Sales Manager
Ivanova N.A.

Notification

Dear Natalya Alexandrovna, we inform you that on 09.11.2012 on your salary card as a result of a counting error, vacation pay in the amount of 20,689 (twenty thousand six hundred eighty nine) rubles was transferred unnecessarily. We ask you to return this amount to the cashier or to the bank account of Profile LLC before November 20, 2012, or agree to have it deducted from your salary.

CONDITION 2. The employee’s consent to withholding has been obtained

The employer has the right to decide to withhold excess payments from the employee’s salary only if the employee does not dispute the grounds and amount of the withholding Art. 137 Labor Code of the Russian Federation.

From this we can conclude that it is enough to notify the employee of the upcoming deduction, assigning him a deadline for submitting objections. And if no objections are received from him within this period, then you can safely issue an order (instruction) to withhold.

But no. According to Rostrud, expressed in 2007, and the courts, this is not enough, and as a sign of the absence of objections on the part of the employee, it is necessary to obtain written consent from him to withhold Letter of Rostrud dated 08/09/2007 No. 3044-6-0; Cassation rulings of the Supreme Court of the Udmurt Republic dated August 22, 2011 No. 33-2856, Supreme Court of the Republic of Tatarstan dated March 14, 2011 No. 33-2570/2011. Rostrud specialists still adhere to the same opinion.

FROM AUTHENTIC SOURCES

“When deducting from an employee’s salary the provisions provided for in Art. 137 of the Labor Code of the Russian Federation (with the exception of vacation pay for unworked vacation days) written consent should be obtained from the employee. This is confirmed by judicial practice.”

Rostrud

An employee can formalize his consent to retention as follows.

To the Director of Profile LLC
V.E. Petrov
from the sales manager
ON THE. Ivanova

Statement

I hereby confirm my consent to deduct, in accordance with the procedure established by law, from my salary the excess vacation pay transferred to me on 09.11.2012 as a result of a calculation error in the amount of 20,689 (Twenty thousand six hundred eighty-nine) rubles.

ON THE. Ivanova

CONDITION 3. The withholding order is issued in a timely manner.

An order (instruction) on withholding must be issued no later than a month from the date of expiration of the period for the return of excess payments. And you can directly withhold money from the employee’s salary later Art. 137 Labor Code of the Russian Federation; Cassation ruling of the Supreme Court of the Udmurt Republic dated October 3, 2011 No. 33-3519/11, that is, when paying wages to an employee. Moreover, the withholding, taking into account the restrictions on its amount, can last for several months.

In the order, indicate the basis and amount of the withholding. And introduce it to the employee against signature Art. 22 Labor Code of the Russian Federation.

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

With each salary payment (that is, from the amounts after personal income tax deduction) you can keep no more than 20% Art. 138 Labor Code of the Russian Federation. Do not forget to indicate the basis and amount of deduction on the pay slip issued to the employee. Art. 136 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 statement. Indeed, in this case, the debt is repaid 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 deduction; just one application from the employee is enough.

To the Director of Profile LLC
V.E. Petrov
from the sales manager
ON THE. Ivanova

Statement

I ask you to withhold the entire amount of vacation pay in the amount of 20,689 (Twenty thousand six hundred eighty-nine) rubles transferred to me on November 09, 2012 as a result of a calculation error from the salary due to me for November 2012.

ON THE. Ivanova

CONDITION 5. The order of deductions is observed

First of all, as you know, personal income tax must be withheld from your salary Letter of the Ministry of Health and Social Development dated November 16, 2011 No. 22-2-4852.

From the remaining amount you withhold the employee’s debt under writs of execution ( writs of execution, court orders and etc.) Art. 138 Labor Code of the Russian Federation.

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

Observe all of the above conditions when holding. Indeed, if any of them is not observed, the employee may, through the court, declare the retention illegal. And then the amounts withheld from him will be collected back from your organization - in his favor

Before issuing, accountants may make mistakes by overpaying or underpaying, and it is necessary to know how to correct errors, for example, calculating the deduction of overpaid amounts from wages. This operation is performed using a memo addressed to the director of the company, as well as a certificate from the accounting department, which records the amount to be paid additionally.

If there is an overpayment, then it is even more difficult to get out of the situation correctly. In Art. 137 of the Labor Code of the Russian Federation there is information according to which overpaid wages are withheld. This includes the following cases:

• counting error;
• admission of guilt for failure to fulfill duties by a specially authorized body;
• illegal actions of an employee established in court.

Most often, the overpayment is paid due to the first reason.

Counting view

There is no such concept in the law. But when they turned to the deputy director of the Salary Department N.Z. Kovyazina, she explained what she meant by this. We are talking about a mechanical error that can be made when entering information into a special accounting program, or caused by interruptions in this program. Typos or incorrect use of statutory instruments do not constitute a counting error.

For example, this includes arithmetic additions that were correct in parts, but the result was erroneous. But it does not include vacation paid in excess of the norm, because of which the amount also turned out to be exceeded, or the calculation of the bonus that was accrued after the specified period, and others. It is important to understand what to do if you overpaid wages.

Sequence of steps

A counting or uncounting error leads to various actions being taken to recover the extra money that was overpaid. If there is a counting error, two options are possible.

1. If the fact that overpaid wages could be withheld from him is not disputed, the employer deducts the necessary amount from the next one. The employee also has the right to return the money through the cash register. The amount will not be subject to personal income tax and insurance contributions, and will not be taken into account in income tax.
2. If the employee decides to challenge, the employer writes statement of claim and goes to court. If the decision is positive, the overcharged amount is returned and is not subject to fees. If collection is refused, unreturned money is also not taken into account and is not subject to fees.

Also in the case of an uncountable error, there are two options for the development of the situation.

1. When the return of the overpaid amount from wages is not disputed, it is simply given back.
2. In case of disagreement, they write a statement of claim and go to court, which makes a positive decision, in which the employer withholds the money or refuses to return it. In any case, the money is not subject to fees.

Required documents

The fact that a salary error was made should be reflected in the documents. When the amount is returned, the incident is considered resolved. Otherwise, you should draw up one of the following documents:

• order to withhold money;
• notice of deduction from wages, where the employee must sign, expressing agreement or disagreement.

A sample application or other paper can be easily found on the Internet. When consent is expressed and the deadlines are met, an appropriate order is issued. It should be taken into account that the total amount cannot be more than 20%, and if the case falls under federal legislation, then 50% of the salary of employees. It turns out that the entire amount can be withheld from the employee for several months.

Upon dismissal, the employee is first given a notice with a proposal to return the extra money that was accrued and paid. It should also be mentioned there that in case of refusal, the employer will apply to the court. It’s good if the former employee decides to return the money voluntarily. Then you should receive a corresponding statement from him. It can be written in free form.

If they refuse to return the money, then the matter must be resolved in court. The lawsuit refers to Article 1102 of the Civil Code of the Russian Federation, which refers to unjust enrichment. It is this point that will be the basis for claims for deduction of excess amounts paid from monthly wages. True, there are exceptions here. Amounts will not be refunded if there is no counting error. This provision is fixed in paragraph 3 of Article 1109 of the Civil Code of the Russian Federation. Thus, overpaid wages will be refunded on that basis only.

Such cases are considered by the district court of 1st instance. The dispute can well be called a labor dispute, since it concerns payment under the relevant agreement. In this case, the employer must prove that there is a counting error. Among necessary documents, which accompany the statement of claim, are the following:

• employment contract;
• settlement papers;
• error report;
• notification and offer to return the required amount to the dismissed employee.

Withholding from the culprit

It is also worth considering whether it is possible to recover money from an employee who made a mistake. The Labor Code of the Russian Federation says that this is possible. But this will only happen if a separate liability agreement is concluded with the employee.

Important! It can be complete or limited. In the first option, the employee will have to compensate the damage to the penny. The basis for this can be found in Article 243. In the second type, liability will arise only within the limits of your monthly salary. However, if the law expressly provides for more serious liability, then it will occur even if it is limited in general.

No contract

If there was no special agreement on financial liability, then its onset will be on the basis of Art. 247 and 248, which states the following. Before deciding on compensation, the employer needs to check the extent of the damage and the reasons for its occurrence. Sometimes a commission is created for this purpose. The employee must write an explanatory note about the work incident. If he refuses to submit the document, then a report is drawn up about this (based on Article 247). The employee is given the opportunity to familiarize himself with the results of the inspection if he shows interest in it. He also has the right to appeal.

If the amount of compensation is not more than the average monthly salary, then the head of the organization issues a corresponding order indicating the repayment period. The law and other acts do not mention a specific deadline for payment of compensation. After the act establishes the final amount of damage, it is usually considered the month that is given to the employer to make a decision on recovery. If this period has expired, then the money can be recovered only if the employee does not object. Otherwise, you need to go to court.

There is a contract

If the organization has a corresponding agreement with the employee, for which there are its own forms, and damage was caused due to his fault, then it is necessary:

• issue an order to appoint a commission to establish the damage;
• receive an explanation directly from the culprit;
• draw up an act;
• compensation order.

The need for compensation for damage is indicated in Article 238 of the Labor Code of the Russian Federation. In Article 244 you can find information about the list of works and employees with whom the relevant contracts must be concluded. Thus, financial responsibility must be confirmed by an agreement with the chief accountant. If the error is uncountable with the person with whom the contract is concluded, then the amount is also qualified as a deficiency.

Write-off

How to write off money is told in 2 cases. The employer refused to recover damages from the culprit. He can decide about this after checking and understanding the amount. It also exceeds the limits set for a particular employee. In Art. 241 states that he is liable no more than the amount of his average salary, unless otherwise specified in the law.

Example

For a better understanding, it is convenient to consider a specific situation. Accountant Vasilyeva made a mistake, as a result of which employees were overpaid. The damage is estimated at fifty-two thousand rubles. The employer made an act where he recognized the error as uncountable. Her average monthly income is 25 thousand rubles. No separate agreement was concluded.

Therefore, no more than 25 thousand rubles are collected from her. It is known that the withholding of overpaid wages cannot be more than 20% of it. That's why this amount will be paid within five months. Write off the remaining money (twenty-seven thousand rubles).

If the amount was less than the average monthly salary, then it would have to be withheld in full. As in the previous case, so in this case, money is not taken into account when collecting fees and insurance premiums.

Overpayment of wages and vacation pay is common in practice. And if it is allowed, then the same question always arises: how to fix it? In this article we will look at the nuances that you should pay attention to when correcting errors.

We find out the reason that resulted in the overpayment

If there is an overpayment for wages, first of all, it is necessary to find out the reason as a result of which it appeared. Why do you need to do this? 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 and other federal laws.

Deductions from an employee’s salary to pay off his debt to the employer can be made:

What should be understood by a counting error? Labor legislation does not contain a definition of the concept of “counting error”. As indicated by the Supreme Arbitration Court in Determination No. 59-B11-17 dated January 20, 2012, based on the literal interpretation of the norms of the current labor legislation (Article 137 of the 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.

Please note that these are not counting errors:

• determination of an incorrect calculation period for calculating amounts due to the employee;
• errors in determining the method of calculating wages, which served as the basis for subsequent accruals;
• technical errors;
• repeated payment of wages for the same period.

In other words, if a computer program crashed, an accountant made a technical error, repeated erroneous payment of the same amount, or applied incorrect legal norms when calculating wages, resulting in an overpayment, such overpaid amounts cannot be withheld without the consent of the employee. These actions will be considered unlawful (see Appeal ruling of the Murmansk Regional Court dated July 22, 2015 No. 33-2153-2015).

Often, illegal deductions from wages are made upon dismissal. Let us recall that, by virtue of the provisions of Art. 137 of the Labor Code of the Russian Federation, deductions from an employee’s salary to pay off his debt to the employer may be made upon his dismissal before the end of the working year for which he has already received annual paid leave, for unworked vacation days. If the employer, when dismissing an employee, did not withhold payment amounts for unworked vacation days, then he does not have the right to recover these amounts from former employee in court, except in cases of dishonesty in the actions of the named person or a counting error. These decisions were made in the appeal rulings of the Khabarovsk Regional Court dated July 29, 2015 in case No. 33-4733/2015, and the Novosibirsk Regional Court dated February 9, 2016 in case No. 33-1022/2016.

We comply with deadlines for reimbursement (withholding overpayments)

After establishing the reasons for the overpayment, it is necessary to remember the terms during which the overpaid amounts can be withheld from the employee.

By virtue of the provisions of Art. 137 of the Labor Code of the Russian Federation, the employer has the right to decide to deduct from the employee’s salary no later than one month from the end of the period established for repayment of incorrectly calculated payments, and provided that the employee does not dispute the grounds and amount of the deduction. As noted in the appeal rulings of the Moscow City Court dated 02.28.2013 No. 11-3853/2013, the Sverdlovsk Regional Court dated 05.22.2014 No. 33-7209/2014, if at least one of these conditions is not met, that is, the employee challenges the withholding or has expired month period, the employer loses the right to withhold these amounts and it can only be exercised in court.

We reflect the amounts of overpayment in accounting

Regardless of the reasons for the overpayment, it must be properly recorded in accounting.

In accordance with clause 80 of Instruction No. 162n, clause 102 of Instruction No. 174n, clause 105 of Instruction No. 183n, the employee’s debt arising from the recalculation of wages previously paid to him is reflected by the “red reversal” method using the following correspondence of accounts:

Account debit 0 302 11 000 “Payroll calculations”

Account credit 0 206 11 000 “Payroll calculations”

At the same time, operations to adjust previously accrued vacation pay (wages), personal income tax and insurance contributions are reflected using the “red reversal” method.

Claims for compensation for damage caused by overpayment former employee salaries (including overpayment to a former employee for unworked vacation days upon his dismissal before the end of the working year for which he had already received annual paid leave) are reflected in the entry (Letter of the Ministry of Finance of the Russian Federation dated November 9, 2016 No. 02-06-10/ 65506):

Account debit 0 209 30 560 “Increase accounts receivable for cost compensation"

Account credit 0 206 11 660 “Reduction of accounts receivable for wages”

Please note that the entry given in the letter from the Ministry of Finance for transferring debt from account 0 206 11 000 “Calculations for wages” to account 0 209 30 000 “Calculations for compensation of costs” is introduced into instructions No. 162n, 174n, 183n by Order of the Ministry of Finance of the Russian Federation dated November 16. 2016 No. 209n.

Further, it should be noted: in their explanations in the above letter, Ministry of Finance officials note that the methodology used accounting does not contain any restrictions on codes for types of financial support (KVFO) (activities), within which calculations can be reflected using account 0 209 30 000 “Calculations for cost compensation”. Officials allow such transactions to be processed under KVFO 4 and 5.

Repayment of debt on overpayment of wages and vacation pay with the voluntary consent of the employee is carried out:

• or through deduction from subsequent payrolls. Please note that the total amount of all deductions for each salary payment cannot exceed 20%, and in cases provided for by federal laws - 50% of the salary due to the employee (Article 138 of the Labor Code of the Russian Federation).

In accounting, debt repayment is reflected in the credit of account 0 209 30 000 “Calculations for compensation of costs.” In this case, standard entries are made, given in instructions No. 162n, 174n, 183n.

Amounts written off from the balance sheet in connection with the court declaring the guilty person insolvent are reflected in the credit of account 0 209 30 000 and the debit of account 0 401 10 173 “Extraordinary income from transactions with assets” while simultaneously reflecting the debt on the off-balance sheet account 04 “Debt of insolvent debtors” "

Let's look at an example of how to reflect this operation in accounting.

A budgetary institution overpaid wages to an employee. Due to a technical error, the accountant mistakenly transferred funds twice to bank card employee. For November 2016, he received a salary in the amount of 63,000 rubles, from which personal income tax was withheld in the amount of 8,190 rubles. However, instead of 54,810 rubles. 109,620 rubles were transferred to the card. Payment of wages was made through a subsidy allocated for the fulfillment of the state task

The employee, having discovered the overpayment, returned the excess to the institution's cash desk.

In accordance with Art. 1102 of the Civil Code of the Russian Federation, overpaid wages are recognized as unjust enrichment and must be returned by the employee to the institution. In the situation described in the question, there is no dishonesty on the part of the employee, therefore the employer cannot withhold the amount on his own initiative. In this case, in order to recover overpaid amounts, the employer is obliged to inform the employee in writing about the mechanism for the formation of overpaid amounts and the amount of their deduction (or repayment). In addition, in order to make deductions, the employee must agree with their amount. He confirms his consent in writing.

According to the conditions of the example, the amount of overpayment occurred due to a double transfer of the same amount of wages, therefore, personal income tax and insurance contributions are not adjusted.

The following entries were made in the accounting:

Contents of operation	Debit	Credit	Amount, rub.
Employee's salary accrued	4 109 60 211	4 302 11 730	63 000
Insurance contributions to the Social Insurance Fund, the Pension Fund of the Russian Federation, and the Federal Compulsory Compulsory Medical Insurance Fund have been calculated. (RUB 63,000 x 30.2%)	4 109 60 213	4 303 02 730	19 026
Deducted from wages personal income tax fees	4 302 11 830	4 303 01 730	8 190
Salary transferred to bank card	4 302 11 830	4 201 11 610	109 620
Adjustment of overpayment of wages
	4 302 11 830	4 206 11 660	(54 810)
Reimbursement of the institution's expenses is reflected	4 209 30 560	4 206 11 660	54 810
The deposit of the overpaid amount into the organization's cash desk is reflected	4 201 34 510	4 209 30 660	54 810
Deposit reflected Money to the personal account of the institution	4 210 03 560	4 201 34 610	54 810

In an autonomous institution, when calculating salaries for November 2016, a calculation error was made: instead of 25,000 rubles. An employee of the organization received a salary of 26,000 rubles.

During the examination of the causes of the error, it was revealed that the cause was incorrect actions when adding up payments. The refund of the employee's overpaid wages was repaid by deduction from the employee's salary. Transactions are reflected in KVFO 2 (income-generating activities").

The procedure for correcting a counting error is given in paragraph 18 of Instruction No. 157n. In accordance with the above standards, it is subject to correction using the “red reversal” method or an additional accounting entry on the day the error is discovered.

Please note that additional accounting entries for correcting errors, as well as corrections using the “red reversal” method, are prepared accounting certificate(f. 0504833), the form of which was approved by Order of the Ministry of Finance of the Russian Federation dated March 30, 2015 No. 52n. It reflects information on the rationale for making corrections. In addition, it is indicated (Letter of the Ministry of Finance of the Russian Federation dated December 10, 2013 No. 02-06-005/54148):

• name of the accounting register being corrected (transaction journal);
• its number (if available);
• the period for which the register was compiled.

Please note that in addition to adjusting accrued wages, you must 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. Let us point out: due to a decrease in the amount of the personal income tax base, there is a decrease in the accrued tax, which is subject to refund to the taxpayer.

The following entries were made in the accounting records:

Contents of operation	Debit	Credit	Amount, rub.
Payroll transactions
The amount of the employee's salary has been accrued	2 109 60 211	2 302 11 000	26 000
Personal income tax withheld (RUB 26,000 x 13%)	2 302 11 000	2 303 01 000	3 380
Insurance premiums accrued to extra-budgetary funds (RUB 26,000 x 30.2%)	2 109 60 213	2 303 00 000	7 852
Reflects the payment of wages by transferring funds to plastic card employee (26,000 - 3,380) rub.	2 302 11 000	2 201 11 000	22 620
Correction of a calculation error in the payment of wages
Fixed a counting error using the “red reversal” method when calculating wages	2 109 60 211	2 302 11 000	(26 000)
Fixed a counting error using the “red reversal” method when calculating insurance premiums (RUB 25,000 x 30.2%)	2 109 60 213	2 303 00 000	(7 852)
Fixed a counting error using the “red reversal” method when calculating personal income tax (RUB 25,000 x 13%)	2 302 11 000	2 303 01 000	(3 380)
Overpayment of overpaid wages using the “red reversal” method has been adjusted	2 302 11 000	2 206 11 000	(870)
Compensation of costs for overpayment of wages is reflected	2 209 30 000	2 206 11 000	870
Operations to repay the overpayment amount
Deduction of amounts overpaid to the employee is reflected	2 302 11 000	2 304 03 000	870

An overpayment of wages to a former employee in the amount of RUB 15,890 occurred in the institution’s records. He refused to compensate her voluntarily, and the institution went to court. The court rejected the institution's claim. Based on the decision made, the latter must write off the amount of overpayment in the amount of 15,890 rubles.

If the court refuses to collect the overpayment debt from the former employee, it is written off from the institution’s balance sheet. When writing off the amount of debt recognized by the institution as impossible to collect, an entry is made in the debit of account 4 401 10 173 “Extraordinary income from transactions with assets.”

Please note that in accordance with clause 339 of Instruction No. 157n, in the absence of grounds for resuming the debt collection procedure provided for by the legislation of the Russian Federation, the debt written off from the balance sheet of the institution is not accepted for off-balance sheet accounting (account 04).

The following entry was made in the accounting:

Let us briefly formulate the main conclusions:

1. The employer does not have the right to reduce the employee’s salary in the current month if it was paid in a larger amount in the previous month:

• due to a technical error (repeated payment of wages for the same period);
• due to erroneous application of the provisions and norms of labor legislation, when wages have already been accrued and paid.

A way out of this situation may be the consent of the employee himself to the voluntary return of funds overpaid to him. The employer can recover such funds from him only in court.

2. The employee’s wage arrears arising from the recalculation of previously paid wages, including compensation for leave due to dismissal, are reflected in the debit of account 0 302 11 830 and the credit of account 0 206 11 660 using the “red reversal” method. In this case, operations must be performed to adjust previously accrued vacation pay (wages), personal income tax and insurance contributions.

3. Claims for compensation for damage incurred in connection with overpayment of wages (vacation pay) to a former employee are reflected in the debit of account 0 209 30 000 and the credit of account 0 206 11 000.

4. Repayment of debt on overpayment of wages and vacation pay, with the voluntary consent of the employee, is carried out:

• or by depositing cash into the cash register or into the personal account of the institution;
• or through deduction from subsequent payrolls. The total amount of all deductions for each salary payment cannot exceed 20%, and in cases provided for by federal laws - 50% of the salary due to the employee.

Deductions for these days are not made if the employee is dismissed on the grounds provided for in paragraph 8 of Part 1 of Art. 77, paragraph 1, 2, 4 parts 1 art. 81, clauses 1, 2, 5, 6 and 7 art. 83 Labor Code of the Russian Federation.

Instructions for using the Chart of Accounts for Budget Accounting, approved. By Order of the Ministry of Finance of the Russian Federation dated December 6, 2010 No. 162n.

Instructions for using the Chart of Accounts budgetary institutions, approved By Order of the Ministry of Finance of the Russian Federation dated December 16, 2010 No. 174n.

Instructions for using the Chart of Accounts autonomous institutions, approved By Order of the Ministry of Finance of the Russian Federation dated December 23, 2010 No. 183n.

Currently being registered with the Ministry of Justice. The changes made are applied when reflecting financial and economic transactions for 2016.

Instructions for the use of the Unified Chart of Accounts for public authorities ( government agencies), local government bodies, management bodies of state extra-budgetary funds, state academies of sciences, state (municipal) institutions, approved. By Order of the Ministry of Finance of the Russian Federation dated December 1, 2010 No. 157n.

Good afternoon Olesya!

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 an employee's salary are made only in cases provided for by this Code and other federal laws.

Deductions from an employee’s salary to pay off his debt to the employer can be made:

to reimburse an unpaid advance issued to an employee on account of wages;

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

to return amounts overpaid to an employee 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 (part three of Article 155 of this Code) or downtime (part three of Article 157 of this Code);

upon dismissal of an employee before the end of the working year for which he has already received annual paid leave for unworked vacation days. Deductions for these days are not made if the employee is dismissed on the grounds provided for in paragraph 8 of part one of Article 77 or paragraphs 1, 2 or 4 of part one 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 decide to deduct from the employee’s salary no later than one month from the end of the period established for the return of the advance, repayment of debt or incorrectly calculated payments, and provided that if the employee does not dispute the grounds and amounts of the withholding.

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 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 downtime (part three of Article 157 of this Code);

if the wages were overpaid to the employee in connection with his unlawful actions established by the court.

So, unfortunately, they can detain you in your case.

Withholding of overpaid wages

Is it possible to return overpaid wages to an employee? At first glance, the question seems absurd. There are many simple ways to settle wage settlements with an employee of an enterprise. However, the extent to which this simplicity will be legal will depend on many factors. Let's try to analyze them.
In accordance with Article 137 of the Labor Code Russian Federation(hereinafter referred to as the Labor Code of the Russian Federation) wages overpaid to an employee (including in the event of incorrect application of laws or other regulations) cannot be recovered from him, except for the following cases:
- when the body for the consideration of individual labor disputes recognizes the employee’s guilt in failure to comply with labor standards or downtime;
- when wages were overpaid to the employee in connection with his unlawful actions established by the court;
- committing a counting error.
However, there is no legally established definition of the concept of “counting error”. Counting errors include only those that were made directly when performing arithmetic operations, that is, they are associated specifically with calculations. Technical errors, including those made through the fault of the employer, are not countable (definition Supreme Court RF dated January 20, 2012 No. 59-B11-17).
According to representatives of the Russian Ministry of Health and Social Development, counting errors include:
— a mechanical error when entering data into the accounting program (if, for example, the salary amount is entered in a larger amount than it should be, or a number is missing, or a number is entered incorrectly);
— an error caused by a failure in the program;
- an error that is associated with arithmetic operations when calculating wages (an incorrect result was obtained when adding the components of wages (salary, additional payments, bonuses), which were individually calculated correctly).
Uncountable errors include:
— incorrect application of legislation. For example, a paid vacation of a longer duration than provided for by law and (or) local regulations of the institution, as a result of which the amount of vacation payments turns out to be inflated;
— 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 are mistakenly paid to him twice;
- if the accrual excess amount due to an accountant’s error: wages were calculated based on a higher salary (tariff rate) than that established for the employee in the employment contract; the bonus is accrued in a larger amount than indicated in the bonus order; bonus amounts were incorrectly taken into account in calculations of average earnings; the average earnings were incorrectly adjusted 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 Time Sheet (for example, days of temporary disability are reflected in the Timesheet as worked, etc.).
The employer has the right to issue an order (instruction) for the return of funds by the employee if the overpayment arose due to the need for compensation:
— unearned advance payment on wages;
— unspent and not returned on time advance payment issued in connection with a business trip;
- amounts overpaid due to a counting error.
Mandatory conditions for return by order of the manager are:
— the employee does not dispute the grounds and amounts of deductions (the employee has written consent);
- no more than a month has passed since the calculation of the excess payment amount or the established deadline for submitting an advance report on business trip expenses. After one month from the date of expiration of the established period, amounts overpaid to the employee, as well as amounts disputed by the employee, can 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 provided for by federal laws - 50% of wages due to the employee.
If payments are terminated (in the event of, for example, dismissal), the remaining debt is collected in court.
Thus, in the case where the overpayment occurred as a result of an uncountable error, the employee who was overpaid is not required 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 error and the perpetrators, a specially appointed commission of the institution must draw up an act, which also indicates what error was made: counting or not. Further, if the guilty person returns the erroneously paid amounts, the incident will be over.
Otherwise, to deduct the overpayment from the salary, you should draw 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 expiration of the period established for the return of incorrectly calculated payments). In the document, the employee indicates his consent (disagreement) to the retention;
— an order to withhold overpayment (issued if the employee’s consent is received and the withholding period has not expired).
If the deadline for making a decision on withholding has expired or the employee refuses to voluntarily return the excess amounts received, the employer will have to recover the overpayment in court.
This is how the seemingly simple task of returning overpaid wages is not easily solved.

According to Article 137 of the Labor Code of the Russian Federation, wages are considered overpaid and must be returned by the employee in the following cases:

• counting error;
• proven by the labor dispute commission or court of the employee’s guilt in idle time or failure to comply with labor standards;
• unlawful actions of an employee established by the court in order to receive unearned money.

Basic Rules

At the same time, according to Article 137 of the Labor Code of the Russian Federation, the employer issues 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 accrued monthly salary.

An employee with this order must must be familiarized with signature and indicating the date of familiarization, 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 for one month).

The second option is also possible - the employee writes himself application addressed to the head of the organization with a request to make a deduction overpaid wages (including interest).

What amounts overpaid to an employee can be withheld from his salary?

According to him, this could be more than 20% per month.

If a counting error is detected regarding a resigned employee, it is necessary to notify him about it by registered mail within a month from the date of discovery of the error. At the same time, reflect the request to independently return the excess amount received. It should also be warned that in case of refusal of voluntary return, an appeal to the court will follow. forced collection amounts.

Going to court

In case of contacting district court, An application must be submitted with the following documents:

• a copy of the employment contract with the defendant;
• settlements for overpaid wages;
• a report drawn up at the enterprise about the identified error in compliance with the statute of limitations;
• a copy of the letter sent to the dismissed employee with notification of its dispatch.

At trial present the originals of all the above documents. During the trial, you will have to prove the fact of a calculation error or the employee’s guilt.

Overpaid wages that are not subject to return by the employee

It is prohibited to demand the return of funds specified in paragraph 3 of Article 1109 Civil Code RF. Also not subject to withholding overpaid wages in case of a counting error, if the corresponding order is not issued in a timely manner, with which the financially affected employee is familiarized with signature.

Technical errors do not apply to counting errors. And therefore it is prohibited to withhold overpayments from an employee due to errors in accounting program and others monetary documents, incorrect application of legislative and regulatory acts.

In particular, Overpaid wages are not refundable:

• payment for longer vacations;
• payment of wages twice: both for oneself and as if for a namesake;
• salary was paid incorrectly while on vacation;
• the accountant accrued an unspecified allowance;
• The premium was paid by mistake.

Approaching the issue that has arisen not from the side of legal acts, but simply from a human perspective: everyone knows what amount is due to them. An accountant is in charge of payroll, and he does not always have the opportunity to thoroughly check everyone before payment.

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

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

According to Article 248 of the Labor Code, upon the fact of damage caused by employees, a order (instructions) of the manager within the time limits established by law.

If the established period for issuing an order (instruction) has expired, and also if the amount recovered from an official is more than his monthly salary, recovery of damage is possible only with the consent of the guilty employee or through the court.

Home — Consultations

Deduction of overpaid amounts from an employee's salary

It often happens that some amounts need to be withheld from an employee’s salary. This can happen for various reasons, for example, after the payment of wages, an error in the accruals is discovered or the employee becomes indebted due to damage to the enterprise. Tell me what amounts are legally withheld from an employee’s salary according to Russian legislation? How to properly withhold such amounts?

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

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

(or) payment of excess amounts to the employee within the framework of the employment relationship (hereinafter referred to as excess payments) (Article 137 of the Labor Code of the Russian Federation).

The procedure for withholding excess payments differs from the procedure for withholding amounts of damages. Let's see what constitutes excess payments, how they can be withheld from an employee, and what to do if this fails.

Types of excess payments

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

• vacation pay for unworked vacation days. Such debt may arise if an employee is dismissed before the end of the working year for which he has already received annual paid leave. You can deduct the employee's debt from the “severance” payments due to him. However, upon dismissal for some reasons, overpaid vacation pay cannot be withheld. For example, upon dismissal:
• due to a reduction in staff or number of employees(Clause 2 of Article 81 of the Labor Code of the Russian Federation);
• the employee’s refusal to transfer to another job, which is necessary for him according to a medical certificate, or the employer’s lack of appropriate work (Clause 8 of Article 77 of the Labor Code of the Russian Federation);
• call for military service (Clause 1 of Article 83 of the Labor Code of the Russian Federation);
• reinstatement of the employee who previously performed this work(Clause 2 of Article 83 of the Labor Code of the Russian Federation);
• unearned salary advances. This debt may arise, for example, when an employee was paid an advance payment of wages for that month at the beginning of the month, and the employee, without having worked it, went on vacation at his own expense or on sick leave before the end of the month;
• unspent and unreturned imprest amounts, including those issued when sent to business trip(Letter of Rostrud dated March 11, 2009 N 1144-TZ);
• (Articles 155, 157 of the Labor Code of the Russian Federation). Such a debt will arise if you pay an employee for downtime or shortcomings on the basis that they occurred 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, excess payments can be withheld only after you go to court and the court establishes the employee’s guilt in idle time or underperformance (Determination of the Moscow Regional Court dated December 15, 2011 N 33-25895);
• amounts overpaid due to an accounting error. Moreover, this is not necessarily a salary. This also includes any amounts erroneously paid to an employee as part of or in connection with the employment relationship.

  Rostrud specialists also think the same.

From authoritative 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 withhold from the employee’s salary (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 accounting errors. The range of these amounts is not limited by this article. Therefore, any amount can be withheld from the salary payments and compensations overpaid to an employee due to a counting error, provided for by labor legislation, local regulations of the organization, collective or employment agreement, for example, benefits, financial assistance, payment for travel to the place of training, compensation for the use of the employee’s personal property, insurance coverage for accident insurance 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 work (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 in territories exposed to radioactive contamination, and other compensation payments) and incentive payments (additional payments and incentive allowances, 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 countable, that is, errors made as a result of incorrect application of the rules of mathematics (Letter of Rostrud dated October 1, 2012 N 1286-6-1). Therefore, courts, as a rule, do not recognize the following errors as counting:

• the same amount was transferred twice due to a technical error (Determination of the RF Armed Forces dated January 20, 2012 N 59-B11-17);
• the previously paid amount is not taken into account in the calculation (Determination of the Sverdlovsk Regional Court dated 02/16/2012 N 33-2365/2012; Cassation Determination of the Krasnodar Regional Court dated 02/14/2012 N 33-3340/12);
• incorrect initial data were used in the calculation (for example, the wrong tariff or coefficient (Appeal ruling of the Oryol Regional Court dated June 20, 2012 N 33-1068), the wrong number of days (Cassation ruling of the Khabarovsk Regional Court dated 02/08/2012 N 33-847/2012) );
• the salary in the program was doubled due to an error in the calculation algorithm (Appeal ruling of the Bryansk Regional Court dated 05/03/2012 N 33-1077/12);
• when calculating, the norms of the organization’s local regulatory act were incorrectly applied (Appeal ruling of the Moscow City Court dated July 16, 2012 N 11-13827/12).

Courts reach other conclusions extremely rarely. For example, the Samara Regional Court indicated that counting errors include not only arithmetic errors, but also software failures (Determination of the Samara Regional Court dated January 18, 2012 N 33-302/2012).

And the Rostov Regional Court, reviewing a case in which “severance” payments were transferred to a dismissed employee by mistake, came to the conclusion that there was a counting error. Since the total amount of transfers exceeded the amount accrued in favor of the employee (Cassation ruling of the Rostov Regional Court dated September 12, 2011 N 33-12413).

We warn the manager
If the employee was overpaid as a result of an uncountable error and he refused to return these amounts 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 when calculating payments in favor of the employee must be documented. For example, an accountant may write a memo addressed to the manager. Or let a specially created commission from among the company’s employees draw up a report on the discovery of a counting error.

Procedure for withholding excess payments

It varies depending on what amounts you overpaid the employee.

Deduction of vacation pay for unworked vacation days

Everything is simple here. The employee's consent is not required. You just need to calculate the overpaid vacation pay, issue an order (instruction) on withholding in any form, and 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 “severance” 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 deduction (Article 138 of the Labor Code of the Russian Federation; Letter of the Ministry of Health and Social Development of Russia dated November 16, 2011 N 22-2-4852 ).
Also, do not forget to give the employee a pay slip indicating the type and amount of deduction (Article 136 of the Labor Code of the Russian Federation).

Withholding of other excess payments

They can be withheld 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 established for the return of excess payments has expired

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

• unspent imprest amounts(Clause 4.4 of the Regulations, approved by the Bank of Russia on October 12, 2011 N 373-P) - on the next working day after the expiration of the period for which money was issued for the purchase of something, or on the day of going back to work after a business trip or after illness. And if the manager sets a deadline for making final payments according to approved advance reports, then - within this period;
• payments for failure to comply with labor standards or idle time if the court establishes the employee’s guilt - on the day the court decision enters into force;
• amounts overpaid due to an accounting error and unpaid salary advances— within the period established in the company’s local regulations. If it is not established, then the employee should be given (sent by mail) a notice in which he must indicate what debt has arisen, in what amount and within what period it must be repaid. You set the deadline at your discretion.

  Accounting error when calculating wages

  For example, you can issue a notification like this:

Condition 2. The employee’s consent to withholding has been obtained

The employer has the right to decide to withhold excess payments from the employee’s salary only if the employee does not dispute the grounds and amount 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 of the upcoming deduction, assigning him a deadline for submitting objections. And if no objections are received from him within this period, then you can safely issue an order (instruction) to withhold.

But no. According to Rostrud, expressed in 2007, and the courts, this is not enough, and as a sign of the absence of objections on the part of the employee, it is necessary to obtain written consent from him to withhold (Letter of Rostrud dated 08/09/2007 N 3044-6-0; Cassation rulings of the Supreme Court of the Udmurt Republic dated August 22, 2011 N 33-2856, Supreme Court of the Republic of Tatarstan dated March 14, 2011 N 33-2570/2011). Rostrud specialists still adhere to the same opinion.

From authoritative sources
Shklovets I.I., Rostrud
“When deducting from an employee’s salary the amounts provided for in Article 137 of the Labor Code of the Russian Federation (with the exception of vacation pay for unworked vacation days), written consent should be obtained from the employee. This is also confirmed by judicial practice.”

An employee can formalize his consent to retention as follows.

Condition 3. A retention order was issued in a timely manner

An order (instruction) on withholding must be issued no later than a month from the date of expiration of the period for the return of excess payments. And you can directly withhold money from the employee’s salary later (Article 137 of the Labor Code of the Russian Federation; Cassation ruling of the Supreme Court of the Udmurt Republic dated October 3, 2011 N 33-3519/11), that is, when paying the employee’s salary. Moreover, the withholding, taking into account the restrictions on its amount, can last 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 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 deduction in the document issued to the employee. pay slip(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 statement. Indeed, in this case, the debt is repaid 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 deduction; just one application from the employee is enough.

Condition 5. The order of deductions is observed

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

From the remaining amount, you withhold the employee’s debt under enforcement documents (writs 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 the deductions for them amounted to less than 20% of the employee’s salary, you can deduct from it his debt to your company, of course, subject to the total amount of all deductions - no more than 20% of the salary.

Advice
Observe all of the above conditions when holding. Indeed, if any of them is not observed, the employee may, through the court, declare the retention illegal. And then the amounts withheld from him will be recovered from your organization back - in his favor (Determinations of the St. Petersburg City Court dated 03/07/2012 N 33-2718, dated 01/16/2012 N 33-238; Kamchatka Regional Court dated 01/22/2009 N 33- 38/2009; Cassation rulings of the Supreme Court of the Udmurt Republic dated October 19, 2009 N 33-2803; Kaliningrad Regional Court dated August 3, 2011 N 33-3553/2011).

If you are unable to withhold excess payments

For example, the employee did not agree to the deduction or upon his dismissal, 20% of the “severance” payments were not enough to pay off the entire debt. Then it is possible to recover wages and equivalent payments from the employee 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 dated December 20, 2011 N 33-12174; Determination of the Supreme Court of the Russian Federation dated 05/28/2010 N 18-В10-16; Supreme Arbitration Court of the Russian Federation dated 10/08/2008 N 12227/08):

(or) a counting error was made;

(or) there were dishonest actions of the employee (for example, the employee unlawfully accrued his salary, abusing his official position (Determination of the Sverdlovsk Regional Court dated July 12, 2012 N 33-8492/2012), unlawfully received a salary after dismissal (Cassation determination of the Trans-Baikal Regional Court dated December 27. 2011 N 33-4545-2011), provided false information that affected the amount of wages, or fabricated documents for calculating wages in a larger amount (Appeal ruling of the Krasnodar Regional Court dated 08/28/2012 N 33-17581/2012));

(or) the court finds the employee guilty of failure to comply with labor standards or downtime (if excessive payments are collected from the employee for downtime and underperformance).

In the absence of such circumstances, the courts generally refuse employers to collect excess payments from employees (Decisions of the Supreme Court of the Komi Republic dated July 23, 2012 N 33-2899AP/2012, St. Petersburg City Court dated November 3, 2011 N 33-16437/2011; Appeal rulings of the Volgograd Regional Court dated 03/15/2012 N 33-2387/2012; Moscow City Court dated 08.08.2012 N 11-16329; Yaroslavl Regional Court dated 05.07.2012 N 33-3460; Pskov regional court dated 15.05.2012 N 33-749/2012).

Opposite decisions are rare (Appeal ruling of the Court of the Jewish Autonomous Region dated July 27, 2012 N 33-366/2012; Cassation ruling of the Bryansk Regional Court dated February 24, 2011 N 33-507/11). Moreover, sometimes it is possible to recover excess payments from the employee as material damage (Cassation ruling of the Supreme Court of the Republic of Tatarstan dated October 24, 2011 N 33-12920/11).

If we are not talking about excessive payments to an employee within the framework of an employment relationship, but about his debt for other reasons, then, of course, there is the possibility of collecting it from the employee. For example, if:

(or) the employee caused material damage to the company (in particular, he did not return the property entrusted to him, work clothes upon dismissal, overused his work 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 employee’s average monthly earnings, 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