How to correctly calculate alimony before or after personal income tax

Grounds for deduction of alimony

An order to withhold and transfer alimony through the company’s accounting department is sent to the employee at his main place of work. The basis may be:

• performance list;
• court order;
• alimony agreement certified by a notary;
• resolution of the bailiff.

Accountants should be aware that alimony payments should only be withheld after income taxes have been withheld. That is, they are, as it were, second in line (Part 1 of Article 99 of the Federal Law of October 2, 2007 No. 229-FZ “On Enforcement Proceedings”, hereinafter referred to as Law No. 229-FZ).

What to consider when calculating

Before collecting alimony payments, you need to carefully study the source document, namely:

• check whether the specified person is employed - often a writ of execution is sent for employees who have already resigned; if not, then the document must be urgently returned to the FSSP with a covering letter and a copy of the dismissal order;
• find the amount of the penalty;
• check whether there is a debt;
• clarify from what period to make the deduction;
• determine until what point alimony is accrued - usually until the child reaches adulthood;
• to which personal or current account the collections should be transferred.

The further progress of the calculation depends on the specified data.

Deduction amounts

The writ of execution does not always indicate the specific amount of a fixed amount of alimony. Then the unfortunate spouse and his employer should know that they will have to pay:

• for one child – 25 percent of the amount of calculated earnings excluding personal income tax;
• for two children - a third of the same income according to the same calculations;
• for three or more children, you will have to share half of your income.

It should be noted that some individuals are deeply mired in paying child support. But keep in mind that Law 229-FZ contains a strict restriction: one person cannot be deducted for payments to other persons in an amount greater than 70 percent of his income minus income tax.

Personal income tax when withholding alimony if the debtor uses a property deduction

When constructing or purchasing housing, the taxpayer has the right to a property tax deduction (clause 2, clause 1, article 220 of the Tax Code of the Russian Federation). To obtain such a deduction, he can contact the employer by presenting him with the necessary documents (clause 3 of Article 220 of the Tax Code of the Russian Federation).

As a rule, the amounts of the named deduction are significant. This means that for several months or even an entire tax period, personal income tax will not be withheld from such an employee. But alimony must be withheld from the entire amount of wages (other income) received by the employee. After all, when providing property tax deductions, the tax base actually decreases and, accordingly, income increases (Letter of Rostrud dated December 28, 2006 N 2261-6-1).

If the employee has declared to the employer his right to provide a property tax deduction not from the first month of the tax period (by submitting a written application and notification issued by the tax authority, in the form approved by Order of the Federal Tax Service of Russia dated December 25, 2009 N MM-7-3/ [email protected ] ), this deduction is provided starting from the month in which the employee applied for its provision, in relation to the entire amount of income accrued to the employee on an accrual basis from the beginning of the tax period with offset of the previously withheld tax amount. At the same time, the tax previously withheld from the employee’s income must be offset against future payments, since the personal income tax is calculated on an accrual basis (clause 2, clause 1, article 220, clause 3, article 226 of the Tax Code of the Russian Federation, Letters of the Ministry of Finance of Russia dated 22.01. 2013 N 03-04-06/4-18, dated 12/29/2012 N 03-04-06/4-374, dated 09/14/2012 N 03-04-08/4-301, Federal Tax Service of Russia dated 10/02/2012 N ED -4-3/ [email protected] ). But it is impossible to return to an employee the personal income tax withheld before receiving a notice of deduction. After all, only over-withheld tax can be returned, and when providing a deduction, such tax is only personal income tax withheld after receiving a notification from the employee. And the amount of tax withheld from the beginning of the year until the month of receipt of the notification is legally withheld (Letters of the Ministry of Finance of Russia dated October 26, 2011 N 03-04-06/7-286, Federal Tax Service of Russia for Moscow dated March 22, 2011 N 20-14/ 4/026441).

The algorithm of the organization’s actions in relation to the calculation of alimony when the employer provides a property tax deduction depends on the size of the deduction and the employee’s income and will be as follows.

Option 1. If the amount of the deduction is less than or equal to the employee’s income received for the period from the month of notification to the end of the year, then:

• months before the notification is provided to the Federal Tax Service, it is not necessary to restore the income of an employee from whom alimony was not previously withheld, and there is no need to recalculate the amount of alimony, since personal income tax was legally withheld, is not subject to recalculation and must be reflected in the personal income tax register until the end of the year (Letter of the Ministry of Finance of Russia dated 22.01. 2013 N 03-04-06/4-18). To obtain a refund of this tax amount, the employee will have to contact the Federal Tax Service at the place of residence at the end of the year (clause 2 of Article 220 of the Tax Code of the Russian Federation), submitting a personal income tax declaration (form 3-personal income tax, approved by Order of the Federal Tax Service of Russia dated November 10, 2011 N MMV-7 -3/ [email protected] ) and documents confirming the right to a property deduction (paragraph 24, paragraph 2, paragraph 1, article 220 of the Tax Code of the Russian Federation, Letter of the Ministry of Finance of Russia dated November 26, 2012 N 03-04-08/7-413, Federal Tax Service of Russia dated December 17, 2012 N ED-4-3/ [email protected] ). The tax inspectorate will recalculate and return to the employee the overpaid personal income tax, but it is not granted the right to recalculate and collect child support from persons obligated to pay it. Therefore, the Federal Tax Service will not recalculate alimony;
• starting from the month of notification and up to December inclusive (provided that the amount of the deduction is less than or equal to the employee’s income received for the period from the month of notification to the end of the year), alimony is calculated from the full amount of wages (other income) of the employee (without deduction Personal income tax), since the employee does not need to withhold personal income tax in connection with the provision of a deduction.

Option 2. If the amount of the deduction is greater than the employee’s income received for the period from the month of notification to the end of the year, then:

• (or) alimony throughout the year is calculated in the generally established manner: (accrued amount of salary (other income) minus personal income tax) x 1/4, 1/3 or 1/2, and at the end of the year the employee will apply for a return of personal income tax to his Federal Tax Service with declaration (form 3-NDFL) and documents confirming the right to deduction. The tax office will not recalculate alimony payments, which is beneficial to the employee;
• (or) actions under option 1, and then the employee will have to submit an application to the Federal Tax Service for issuing a notice of deduction for the next year in order to continue receiving a property deduction from the employer.

Note! An employing organization that has returned to an employee personal income tax withheld prior to the notification of the Federal Tax Service for deduction may be subject to liability in the form of a fine in the amount of 20% of the amount of tax and penalties not transferred to the budget (Articles 75, 123 of the Tax Code RF, Letter of the Ministry of Finance of Russia dated September 14, 2012 N 03-04-08/4-301).

Example 4. Based on a writ of execution, alimony for the maintenance of one minor child in the amount of 1/4 of income is withheld from the employee’s salary.

The employee's salary is 100,000 rubles. per month. The annual income that will be accrued to the employee for 2013 will be 1,200,000 rubles. To simplify the calculation, we will assume that a standard tax deduction for child support expenses is not provided.

Monthly - in January, February 2013 - the following was withheld from the employee’s salary:

Personal income tax in the amount of 13,000 rubles:

13,000 rub. = 100,000 rub. x 13%;

alimony in the amount of 21,750 rubles:

RUB 21,750 = (RUB 100,000 - RUB 13,000) x 1/4.

In March 2013, the employee submitted to the organization’s accounting department (clause 2, clause 1, clause 3, article 220 of the Tax Code of the Russian Federation):

• an application for a property tax deduction for personal income tax for 2013 in the amount spent by him on the purchase of an apartment;
• notification from the Federal Tax Service confirming his right to a property tax deduction in the amount of 1,200,000 rubles. in connection with the purchase of an apartment.

An employer can provide a property tax deduction only in an amount equal to the employee’s income from March to December inclusive, i.e. in the amount of 1,000,000 rubles. (RUB 100,000 x 10 months). Personal income tax in the amount of 26,000 rubles. from income for January - February is already legally withheld and is not recalculated (Letter of the Ministry of Finance of Russia dated January 22, 2013 N 03-04-06/4-18), the tax base for January - February remains unchanged, alimony is not recalculated, since the employee’s income is not restored . To request a refund of this tax amount, the employee must contact his tax office, which will return the tax, but will not recalculate alimony.

For the period from March to December 2013, personal income tax does not need to be withheld from the employee due to the provision of a property tax deduction. The tax base for personal income tax (cumulatively) for each month (March - December) will remain unchanged and will be equal to 200,000 rubles. (in January - 100,000 rubles, in February - 200,000 rubles), and the amount of personal income tax withheld and transferred to the budget (on an accrual basis) will remain equal to 26,000 rubles during March - December. (January - 13,000 rubles, February - 26,000 rubles). Alimony must be calculated from the full amount of wages. Their monthly amount for March - December will be 25,000 rubles: 25,000 rubles. = 100,000 rub. x 1/4.

Quick transfer

The same Law No. 229-FZ determines the period for payment (transfer) of alimony to the other parent of the child. It is three days after the accrual of wages and other payments. That is, taking into account all bonuses, vacation pay, sick leave pay.

A profitable loophole for alimony payers is travel accruals. The fact is that, according to the law, alimony is not withheld from them, since the entire amount goes to support the posted worker. In different years, the amounts of travel allowances were different. Sometimes their size was significant when the employee was sent on long business trips.

Employees are given a pay slip, which clearly states (Article 136 of the Labor Code of the Russian Federation):

• the amount of calculated and transferred alimony;
• income tax;
• the balance of the amount received by the alimony holder.

Tax benefits

To be eligible to receive a tax break when paying a monthly child benefit, the employee must officially confirm a decent level of support for his children.

The main reason for benefits is the conscientious and regular payment of children's money.

To receive benefits, you must provide the following documents to the Federal Tax Service:

• about divorce (divorce certificate);
• about the birth of a child (establishing paternity);
• alimony agreement, court order (copy), writ of execution along with a court order;
• a certificate from an accountant, payments and receipts (anything that can confirm the proper execution of payments for the baby).

Alimony for 1st child

Parent Kovalenko V.P. pays child support for one child. In May, he received a salary with all additional payments in the amount of 36 thousand rubles. According to the law, 25 percent of income must be withheld from each child.

Income tax for 36 thousand is 4680 rubles. (36,000 x 13:100).

The amount that remains after paying personal income tax: 36,000 – 4680 = 31,320 rubles. This is the indicator from which the amount of alimony is calculated.

In our case, child support for one child will be: 31,320 x 25:100 = 7,830 rubles. This amount will be transferred to the other parent within 3 days for the maintenance of their son or daughter.

Kovalenko V.P. will receive a salary minus income tax, alimony, other deductions for social and pension insurance, and union dues. If we do not take into account other deductions, the amount in hand will be:

36,000 – 4680 – 7830 = 23,490 rubles.

How to keep records

Account for deductions from wages using the following standard entries:

One child

In our case, with a salary of 36,000 rubles while supporting one child, income tax is taken not from the indicated amount, but from the amount:

36,000 – 1400 = 34,600 rub.

The tax from this amount will be equal to 4498 rubles. (34,600 x 13:100), and not 4,680 rubles without taking into account the deduction.

Then alimony will be calculated based on the amount of 31,502 rubles. (36,000 – 4498).

The amount of alimony is 7875.50 rubles. (31,502 x 25:100).

The employee will receive: 36,000 – 4498 – 7875.50 = 23,626.50 rubles.

Let's compare the amounts received by the worker in different cases: 23,490 and 23,626.50 rubles.

The difference with the tax deduction refund is only 136.50 rubles. (23,626.50 – 23,490).

Thus, with a tax deduction, a person will receive 136.50 rubles more than without its use.

Special types of deductions

Some employers provide a bonus labor system to motivate employees. For example, a guaranteed salary is only a small part of earnings, the rest of the amount is determined based on the specialist’s performance indicators.

The system of fines for employees is becoming increasingly popular (example: wages in large corporations, supermarket chains, holding companies, etc.). This remuneration system is aimed at motivating specialists to achieve their goals. In other words, if the employee did not fulfill the plan or committed any misconduct, the employer has the right to punish the specialist with a ruble.

However, according to the labor inspectorate, such a system is considered illegal, since collecting a fine from an employee is equivalent to non-payment of part of the salary, even if the punishment itself is supported by an order and other documents. For this, the employer can be punished under Art. 5.27 Code of Administrative Offences.

For 2 children

Income tax is calculated from the amount: 36,000 – 1,400 x 2 = 33,200 rubles.

Personal income tax is taken from this amount and amounts to: 33,200 x 13: 100 = 4,316 rubles.

In the first case, excluding tax deductions, the amount of alimony was 10,440 rubles. In our case, this is: 36,000 – 4316 = 31,684 rubles. A third is taken from this amount. Then the alimony will be:

31,684: 3 = 10,561.3 rub.

The employee will receive: 36,000 – 4316 – 10,561.3 = 21,122.7 rubles.

The difference with and without the deduction is: 21,122.7 – 20,880 = 242.7 rubles.