In a material consultation on questions who is given and in what cases should pay compensation for untimely payment of a salary and as it is correct to settle an invoice a compensation amount.
Who and in what cases should pay compensation for untimely payment of a salary? How it is correct to settle an invoice the sum of such compensation?
You will find answers to these questions in this consultation.
Who and when pays?
By the legislation the salary should vyplachivatsya to workers regularly in the working days not less often than two times a month through a period which is not exceeding sixteen calendar days (Art. 24 of the Law on compensation).
But due to various reasons violation of terms of payment of a salary on agricultural enterprises – the phenomenon very widespread. For protection of interests of citizens legislators provided (Law Art. 34 about oplate work) payment by the employer of compensation to rayobotnik of loss of a part of a salary in connection with violation of terms of its payment.
The employer is obliged to compensate the rabotnikam loss of a part of a salary in a case zaderzhki payments of the added salary on one and more calendar months (Law No. 2050 Art. 2).
How to calculate a compensation amount?
Order of payment out of time paid zarplaty, added after January 1, 2001, reglamentirovan the Law No. 2050 and Order No. 159*.
For compensation amount calculation according to item 4 of the Order No. 159 we will give a formula
To = (ZP x PI): 100,
where To – a compensation amount;
ZP – the sums added, but the salary not paid for the corresponding period (together with the indexation sum) after deduction of taxes and obyayozatelny payments (that is proceeding from the sum on hands);
PI – a consumer price index gain (indeksa inflations) as a percentage. PI = And – 100;
And – a consumer price index calculated by multiplication of monthly indexes during nonpayment of a salary. In this calculation not in the inflation, taking place in a meyosyaets, for which and in which the salary is paid.
Charge and pay compensation in a month of payment of debt on a salary. And, zayomety: before official publication of an index of the poyotrebitelsky prices for the last month nachisleyony compensations, its payment aren’t made, as legislatively it isn’t provided.
Example 1
In October, 2006 the enterprise pays to a rayobotnik a salary added in January and February, 2006. The sum which is subject to payment to the worker on hands – 800 UAH. monthly. Rasyoschitayem compensation amount as follows.
1. Let’s define a consumer price index gain for the periods of nonpayment of a salary:
• for January, 2006 (we will consider indexes from February to September) it will be equal 4,7 % (1,018 x 0,997 x 0,996 x 1,005 x 1,001 x 1,009 x 1,000 x 1,020) x 100 – 100;
• for February, 2006 (we will consider indexes from March to September) it will make 2,8 % (0,997 x 0,996 x 1,005 x 1,001 x 1,009 x 1,000 x 1,020) x 100 – 100.
* compensation Procedure of payments for the sum of the salary added from 01.01.98 for 31.12.2000, is defined by Poloyozheny No. 1427.
2. Let’s estimate a compensation amount for untimely payment of a salary:
• for January, 2006 it will make 37,60 UAH. (800 x 4,7): 100;
• for February, 2006 – 22,40 UAH. (800 x 2, 8): 100.
Example 2
On October 18, 2006 the enterprise pays a salary for August, 2006. Payment should be made on September 6, 2006. The sum, podleyozhashchy to payment on hands – 500 UAH.
As the delay of payment of a salary exceeds monthly term, it is necessary to add compensation. An inflation index in September – 102 %.
Thus, the compensation amount will be equal 10 UAH. [500 UAH. x (102 - 100): 100].
Tax and accounting
Compensation amounts are included into fund of an additional salary (Instruction No. 5 subitem 2.2.8). Sledoyovatelno:
• the compensation amount is assessed with the personal income tax on the general basis;
• on a compensation amount are assessed and from it uderzhivayutsya all contributions to funds socstraxa, including in Pension.
Pay attention: compensation amounts in fund of compensation of that period in which their charge and payment are made.
The taxpayer has a compensation amount pravo to include in structure of gross expenses (subitem 5.6.1 of the Law on profit).
Especially important point: at carrying out a kompenyosatsiya to the dismissed workers of its sum can be included in structure of gross expenses on the basis of subitem 5.2.1 as the expenses connected with conducting of hozyayyostvenny activity.
And here social contributions to a compensation amount to the dismissed workers aren’t charged and from it don’t keep, as these payments aren’t included into compensation fund. Confirmation of this thought we will find also in letters of Ministry of Labor from 10.11.04 of No. 11397/0/14-04-020-6 and social insurance Fund from accidents No. 01-1702 from 02.11.04.
Accounting of charge and payment of a kompensayotsiya we will consider on an example.
Example 3
The enterprise in October, 2006 pays to the worker of a sales department a salary for July, 2006 in the sum of 839,55 UAH. Gain size indeksa consumer prices for August and September of-2 % [(1,000 x 1,020) x 100 - 100)]. The kompenyosatsiya sum – 16,79 UAH.
Responsibility for not carrying out compensation
Refusal of the owner of payment of compensation for a salary delay the worker can obzhalovat in court (Law No. 2050 Art. 7).
For not charge and compensation nonpayment, kotoyory as already it was told above, the criminal otyovetstvennost enters into fund oplaty work, the current legislation predusmotrena both administrative, and.
Violation of established periods of payment zarplaty, its payment not in full, and also other violations of requirements of the legislation on work involve penalty imposing on dolzhnostyony persons of the enterprises at the rate from 255 to 850 UAH. (Art. 41 KUoAP). Such penalty is imposed on a court resheyoniya on the basis of documents, predstavlenyony by inspectorate for work (Art. 255 KUoAP).
More strict liability is provided by UK Art. 175. In particular, for groundless nevyplatu a salary or other payment established by the law more than in one month, perfect purposely the director, predusmatrivaetsya one of punishments in a look:
• a penalty at the rate from 1 700 to 5 100 UAH.;
• deprivations of the right to occupy certain positions or to be engaged in a certain activity for the term up to 5 years;
• corrective labors for the term up to 2 years;
• imprisonments for the term up to 2 years with deprivation of the right to occupy certain positions or zanimatsya with a certain activity for the term up to 3 years.
Thus it is necessary to mean that the director is released from a criminal otvetstvenyonost if till attraction to it it vyplatit a salary or makes another ustanovlenyony the law payment (h. 3 Art. 175 of UK).
(UAH.)
List of documents
1. KUoAP – the Code of Ukraine about administrative offenses from 07.12.84 of No. of the 8073rd.
2. UK – the Criminal code of Ukraine from 05.04.01 of No. 2341-111.
3. The law on compensation – the Law of Ukraine from 24.03.95 of No. 108/95-BP About compensation.
4. The law on profit – the Law of Ukraine from 28.12.94 of No. 334/94-BP About the taxation of profit of the enterprises.
5. The law No. 2050 – the Law of Ukraine from 19.10.2000 of No. 2050-1II About compensation to citizens of loss of a part of the income in connection with violation of terms of their payment.
6. The instruction No. 5 - the Instruction on the salary statistics, approved by the order of Goskomstat of Ukraine from 13.01.04 of No. 5.
7. An order No. 159 – the Order of carrying out compensation to citizens of loss of a part of the monetary income in connection with violation of terms of their payment, approved by the resolution KMU from 21.02.01 of No. 159.
8. The situation N21427 – Situation about compensation order to workers of loss of a part of a salary in connection with narusheyoniy terms of its payment, approved by the resolution KMU from 20.12.97 of No. 1427.
(On Balans-Agro newspaper materials).