Calculation of taxable and non-taxable amounts of compensation upon dismissal by agreement of the parties

What does dismissal by agreement of the parties mean?

An agreement between the parties (employee and employer) is a separate basis for the dismissal of an employee, established by an article of the Labor Code of the Russian Federation.
As the name suggests, this is possible if the parties have agreed on all the essential points of termination of the employment relationship - the date of dismissal, additional compensation payments, etc. If such agreement is not reached, then the employee has the right to resign of his own free will, having notified the employer at least two weeks in advance (Article of the Labor Code of the Russian Federation). The employer may also be the initiator of the separation. To do this, it is necessary to have the conditions defined in the article of the Russian Federation (for example, Payments in case of layoff of an employee in 2021, reduction in headcount or staff, etc.).

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If the boss does not sign the resignation letter

If the manager does not accept or refuses to sign the resignation letter, do the following:

• write a correct resignation letter of your own free will and send it by registered mail;
• start counting two weeks the day after you submit your application;
• work completely for two weeks and ask for payment and documents;
• if there is no calculation or labor report, you have the right to contact the labor inspectorate with a complaint.

If the employer does not sign the resignation letter, violating the Labor Code, in the event of court hearings, all costs are paid by the violator.

Pros and cons for the employee

If dismissed by agreement of the parties, the employee is not required to notify the employer two weeks in advance. Consequently, such a “resignation” is possible at any time, including “one day”. In certain situations, this can be considered a plus for both the employee and the employer.

Another advantage for the employee is the opportunity to receive additional monetary compensation upon dismissal “by agreement”. If an employee leaves of his own free will, such payments are not provided.

Among the disadvantages for the employee is the fact that the agreement of the parties is one of the most “strong” grounds for terminating an employment contract. It will be more difficult to challenge a properly executed agreement in court and be reinstated than if you were dismissed for other reasons. Especially if the employee received additional payments provided for in such an agreement.

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How to bargain with an employer?

Since the law does not establish strict obligations regarding severance pay to a person dismissed by agreement of the parties, its amount depends on how much the parties were able to agree. It usually makes sense to bargain when the employer becomes the initiator of the process.

When an employee quits, he loses his source of income until he is hired for another job. And the ability to survive until this day depends only on the person himself. It’s good if the parameters of severance pay are already provided for in the organization’s documents. Otherwise, the best option is a competent dialogue with the employer, outlining arguments in your favor and payment of compensation based on the average monthly earnings for six months.

More often, the mechanism works when the manager has a desire to replace this employee with another and there is already a candidate. All that remains is to make room. Then he, in fact, buys him out by paying the severance pay that the fired person asks for.

Benefits and risks for the employer

First of all, we note that there is no conflict with the outgoing employee, who receives an absolutely neutral entry in the work book, as well as additional cash payments. Consequently, the chances of future complaints and litigation are reduced (especially if the “compensation” is paid on time and in full).

If a conflict does arise, then the fact of the stability of the agreement, mentioned as a “minus” for the employee, as a basis for dismissal, turns into a “plus” for the employer. If this document is properly executed, the employee’s chances of being reinstated at work (and therefore receiving payment for forced absence and moral damages) are not great.

However, we cannot say there is a complete absence of risks in the event of termination of the employment relationship by agreement of the parties. Thus, if an employer delays payment of the amounts specified in the agreement, he faces a fine under Part 6 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation (for legal entities - up to 50 thousand rubles, for individual entrepreneurs - up to 5 thousand rubles).

Also, the fact that dismissal occurs “by agreement” does not mean that the employer will not be responsible for violations committed when preparing the relevant personnel documents (dismissal order, work book, etc.). In this situation, a fine can be assessed under Part 1 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation (for legal entities - up to 50 thousand rubles, for individual entrepreneurs - up to 5 thousand rubles).

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How to draw up an agreement

The current legislation does not establish a unified form, however, there are certain recommendations according to which the following must be indicated in this act:

• name of the document and details of the main employment contract;
• FULL NAME. employee;
• FULL NAME. and the position of the manager who will sign the agreement;
• last day of work (from the next day the employee is considered dismissed);
• the reason for termination of the employment relationship (in this case, indicate “by agreement of the parties”);
• the employer’s obligation to make calculations, issue a work book and pay compensation;
• signatures.

The document is drawn up on the official letterhead of the organization in two copies, each of which has equal legal force. It is advisable that the employee put the visa “received his own copy” on the employer’s copy and indicate the date.

The sample looks like this:

After signing such an agreement, it is impossible to change or cancel it unilaterally, which guarantees its execution for both parties: the employer is confident that the employee will not change his mind about quitting, and the employee is confident that he will receive all the payments and compensation due to him.

Dismissal of pregnant women

The Labor Code does not contain restrictions on the circle of persons who can be dismissed “by agreement”. This means that a similar method of terminating an employment contract is also permissible in relation to a pregnant woman, regardless of the stage of her pregnancy. Including, the conclusion of an agreement is possible even after the employee goes on maternity leave.

But there is one caveat. If a woman found out about her pregnancy shortly after signing the agreement and, therefore, changed her mind about quitting, it is better to reinstate the employment contract. Otherwise, the court can do this (rulings of the Supreme Court of the Russian Federation dated 06.20.16 No. 18-KG16-45 and dated 09.05.14 No. 37-KG14-4). Therefore, before concluding an agreement to dismiss an employee, you need to make sure that she has previously submitted documents about her pregnancy. This could be a certificate of registration in the early stages of pregnancy, or an application for leave or time off due to pregnancy, etc. If there are no such papers, and the employer is not ready for the subsequent reinstatement of an employee who has changed her mind about leaving, then it is better not to formalize the dismissal “by agreement” with her.

ATTENTION. There is no need to indicate the fact of pregnancy in the agreement. This may be regarded as dismissal for this reason. And such an action is a crime, liability for which is provided for in Article 145 of the Criminal Code of the Russian Federation (clause 16 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated December 25, 2018 No. 46). Similar criminal liability will arise if the court finds that a pregnant woman was forced to sign such an agreement. Evidence may include facts of physical impact or psychological pressure; creation of unfavorable working conditions; illegal imposition of disciplinary sanctions; threats of using methods of influence that could lead to adverse consequences not only for the employee, but also for his relatives (appeal rulings of the Supreme Court of the Republic of Dagestan dated 08.16.16 No. 33-2669/2016, Astrakhan Regional Court dated 05.30.12 in case No. 33-1592 /2012).

Features of dismissal of different categories of workers

Some categories of workers have certain guarantees due to their work schedule or special status. Let's consider how to terminate the employment relationship with them.

Pregnant women

Women on maternity leave have a number of rights, including when terminating an employment contract. If an agreement is concluded to terminate the contract at the mutual request of the parties, no benefits apply (all payments and compensation are indicated in the additional agreement, otherwise the pregnant woman will not receive them).

Pensioner and pre-retirement

Infringement of the rights of citizens in connection with reaching a certain age is prohibited by Article 3 of the Labor Code of the Russian Federation; the procedure is carried out in the same manner as in relation to other employees; pressure or other coercion is prohibited.

Part-timer

The dismissal procedure by agreement of the parties is carried out in the same manner, but the dismissal will be recorded at the main place of work.

Dismissal of pensioners and pre-retirees

Working pensioners and pre-retirees also have the right to resign by agreement of the parties to the employment contract. But there are nuances here too.

ATTENTION. Article 144.1 of the Criminal Code of the Russian Federation establishes criminal liability for the dismissal of pre-retirement employees. It occurs if the reason (motive) for dismissal is the employee’s age. This means that the dismissal agreement should not contain provisions from which it can be concluded that it was concluded in connection with the employee acquiring pre-retirement status. In particular, there is no need to indicate the fact that a person has reached the appropriate age, or whether he has benefits provided to pre-retirees.

As in other cases, the conclusion of the agreement must be voluntary. Otherwise, the pre-retirement person will be reinstated at work, the company will be fined (Part 1 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation), and its manager may be brought to criminal liability (Article 144.1 of the Criminal Code of the Russian Federation).

Dismissal of part-time workers

It is possible to conclude an agreement to terminate an employment contract by agreement of the parties with an employee who is registered under Part-time and part-time work: what is the difference between part-time work. The Labor Code does not contain any exceptions in this part.

The only peculiarity is that you do not need to enter information about the dismissal of an external part-time worker in his paper work book. If necessary, this will be done by his main employer on the basis of the agreement presented by the dismissed part-time worker (Article of the Labor Code of the Russian Federation). However, this does not exclude the need to submit a SZV-TD. This form must be submitted upon dismissal of both external and internal part-time employees. For more details, see “Part-time work: how to properly formalize the hiring of an employee.”

Solution concept

Since the taxation of personal income tax and contributions is configured for the types of accruals, you will need to describe two types of accruals: for the non-taxable and taxable part of the compensation. Let both accruals be made automatically in the Dismissal if the value of the indicator Amount of Compensation by agreement of the parties .

In the Dismissal , the employee’s average daily earnings are automatically calculated to calculate severance pay - this is the average earnings for 1 working day. The question arises of how to convert average daily earnings into average monthly earnings to determine the taxable and non-taxable portion of compensation. This issue is not regulated by law. In some organizations, it is customary to multiply the average daily earnings by the number of working days in the next three months according to the employee’s work schedule, in others, the multiplication occurs by the average monthly number of working days, increased three times.

To make the solution universal, the number of working days to determine three times the average monthly earnings based on the daily average will be requested from the user as the value of the indicator Number of days to calculate the non-taxable part of dismissal compensation .

Thus, the schematic formula for calculating the non-taxable amount of compensation will look like this:

• Average daily earnings of an employee * Number of working days for calculating the non-taxable part of compensation upon dismissal

The amount of compensation exceeding the taxable amount will be considered a non-taxable part of the compensation.

Procedure and procedure for dismissal by agreement of the parties in 2021

The types and forms of documents on the basis of which dismissal is carried out by agreement of the parties are not defined by law. Likewise, there is no established procedure for such dismissal.

In practice, employees often take the initiative to terminate the contract by agreement of the parties, submitting a corresponding application to the HR department. However, such a statement is not mandatory - dismissal “by agreement” will be legal without it.

The main document when parting with an employee under an article of the Labor Code of the Russian Federation is the agreement of the parties to the employment contract. However, the law also did not establish any requirements for the form of this agreement.

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Agreement between the parties

Usually it is drawn up on the same principle as an employment contract - in the form of a separate document, drawn up in duplicate, and signed by both parties. The agreement must indicate:

• information about the employee (full name, date and place of birth, passport details, position);
• information about the employment contract (date of conclusion and number, if available);
• reason for dismissal (agreement of the parties) and a link to the relevant article of the Labor Code of the Russian Federation;

IMPORTANT. According to the Instructions for filling out work books (approved by Resolution of the Ministry of Labor of Russia dated October 10, 2003 No. 69), an entry on the termination of an employment contract by agreement of the parties is entered into the work book with reference to paragraph 1 of part 1 of the article of the Labor Code of the Russian Federation. This means that this is the norm that needs to be included in the text of the agreement. Additionally, there is no need to provide a link to the article of the Labor Code of the Russian Federation.

• date of dismissal (letter of the Ministry of Labor dated April 10, 2014 No. 14-2/OOG-1347). The date is entered without any pretext (i.e. you need to write “December 01” and not “from December 01”). It should be taken into account that the specified date is the employee’s last working day (Article 84.1 of the Labor Code of the Russian Federation). This means that on this day he must appear at his workplace.

All other conditions (including the procedure and deadline for transferring cases; return of the employer’s property held by the employee; as well as severance pay and additional compensation) are optional. Dismissal will be legal without this data. However, if they are included in the text of the document, they become binding on both parties.

ATTENTION. If the dismissal agreement provides for the payment of severance pay or other “compensation” that is not directly provided for by the Labor Code of the Russian Federation, then it is better to draw up the corresponding document as an additional agreement to the terminated employment contract. Simply put, in the “header” you should indicate not “Agreement on termination of the employment contract dated No. _”, but “Additional agreement to the employment contract dated No. _”. And all amounts paid are called “severance pay”.

This approach will significantly reduce the risk of claims from tax authorities regarding the accounting of relevant payments for tax purposes. Indeed, according to the rules of the Labor Code (Part 14 of Article 178 of the Labor Code of the Russian Federation) and the Tax Code (Clause 9 of Article 255 and Clause 21 of Article 270 of the Tax Code of the Russian Federation), the payment of severance pay must be provided for precisely by the employment contract.

Calculate all payments taking into account personal income tax for the dismissed employee

The document terminating the employment contract is signed by both parties to the agreement. One copy is given to the employee, and the other remains with the employer. In this case, a mark must be made on the employer’s copy stating that the employee received his copy (the mark must be certified by the employee’s signature). This is especially true if the document is drawn up as an additional agreement to an employment contract (Article of the Labor Code of the Russian Federation).

The dismissal agreement can be dated to any date prior to the date from which the employment contract will be terminated. Including, it is possible to dismiss “one day”, when the day of conclusion of the agreement coincides with the last day of work, that is, the day of dismissal.

Document on payment of compensation

In which document should information about the payment of vacation pay be indicated - only in the agreement on termination of the employment contract or in the collective (labor) agreement as well?

Based on Art. 178 of the Labor Code of the Russian Federation, we can conclude that it is in the labor or collective agreement. Therefore, it is considered that indicating this point only in the agreement on termination of employment is insufficient.

However, there is another opinion - the termination agreement is an integral part of the employment contract, and therefore information about compensation can only be contained in it.

Judicial practice shows that the courts have not reached a consensus on this issue.

For example, the Appeal ruling of the Sverdlovsk Regional Court dated June 30, 2016 in case No. 33-9473/2016 states that labor legislation does not contain information about the right of the parties to labor relations to establish a condition for the payment of severance pay when concluding an agreement on termination of labor relations. And on the basis of this, the court makes a decision in favor of the employer, who wished to return the amount previously paid to the employee, since information about it was contained only in the termination agreement.

The same conclusion was made in the Appeal ruling of the St. Petersburg City Court dated February 24, 2016 No. 33-2415/2016 in case No. 2-6251/2015. In this case, it was stated that the termination agreement is not an additional agreement to the employment contract and it does not change the terms of the main document. The agreement is only the basis for terminating the employment relationship and terminating the contract.

But at the same time, other judicial authorities take a different position, believing that the termination agreement is an integral part of the employment contract (Appeal ruling of the Moscow City Court dated December 14, 2020 No. 2-2613/2020).

You also need to focus on what specific circumstances exist in a particular case. For example, a former employee lost a legal dispute because the employment contract specified one basis for payment of compensation, and the termination agreement specified another basis.

Accordingly, it is possible to specify the payment of compensation only in the agreement on termination of the employment contract, and then the company does not bear some risks. But at the same time, other types of risks arise for the employer - in terms of accounting and taxes.

Attention!

To ensure mobile interaction between employees and accounting departments on personnel issues, the 1C:Employee Account service was launched.

In their personal account via the Internet, employees will be able to receive payslips, a 2-NDFL certificate and other documents, and in turn, employees can send a vacation application, notice of absence, advance report, sick leave in electronic form.

Order to dismiss an employee

Based on the agreement, a dismissal order is issued (you can use the unified form No. T-8, approved by Resolution of the State Statistics Committee dated 01/05/04 No. 1). In this case, in the line (column) “Grounds for termination (termination) of the employment contract (dismissal)” you must indicate: “Agreement of the parties, paragraph 1 of part one of article of the Labor Code of the Russian Federation.” And in the line (column) “Base (document, number, date)” you should write: “Agreement dated_ No. on termination of the employment contract dated_ No_”, or “Additional agreement dated_ No_ to the employment contract dated_ No_”, depending on how the agreement was concluded.

The employee must be familiarized with the dismissal order against his signature.

Compose and print an order for free using form No. T‑8

How to dismiss by agreement of the parties: entry in the work book

In a paper work book, an entry about the dismissal of an employee “by agreement” is made according to the same rules as other entries about dismissal. In particular, the serial number of the record, the date and reason for dismissal, as well as the details of the dismissal order are indicated.

As the basis for dismissal, in column 3 you need to write: “The employment contract is terminated by agreement of the parties, paragraph 1 of part one of article of the Labor Code of the Russian Federation.” For more details, see the article “Filling out a work book: rules and sample.”

Application for resignation

Art. is devoted to the termination of an employment contract at the initiative of the employee or at his own request. 80 TK. This procedure does not cause any particular difficulties, however, there are important rules on how to write a letter of resignation that must be followed.

How to correctly write a resignation letter - employee actions

The law does not provide for a form of application for dismissal; there is no approved template. The employee writes it arbitrarily, adhering to the usual rules for drawing up business papers.

An approximate example of how to correctly write a resignation letter, what information it should contain:

1. The full name of the employing organization is indicated in the header.
2. At the top right is the “to” block. The position and full name of the head of the organization are written here.
3. Below are the applicant's details - position, full name.
4. The title of the document in the middle is a statement.
5. The actual text of the application for voluntary resignation, containing an indication of the date and reason for termination of the trade union.
6. Below the text is the date the document was written and the applicant’s signature with a transcript.

The employee must notify management of his desire to terminate the contract two weeks before the termination date. Therefore, the date of dismissal in the application at one’s own request must be indicated correctly.

It is not necessary to fulfill this period. Everything is decided by the wishes of the parties. Article 77 of the Labor Code allows the contract to be terminated by agreement of both participants at any time. Therefore, before thinking about what date to write a resignation letter, it makes sense to ask management about their opinion on this matter.

The Labor Code provides for the possibility that an employee changes his mind about leaving and remains at work after he has written a statement. He has the right to do this before the specified date of termination of the employment contract. However, if the employer has invited another employee to take his place in writing, he does not have the right to refuse him.

Registration of dismissal of an employee on his initiative - steps of the employer

Step 1 . The employer accepts the application from the employee.

The day after it is submitted, the two-week work period begins. To avoid disagreements in determining the last day of work, check what date is on the resignation letter and how correctly it is indicated.

There are some exceptions when determining the period of 2 weeks:

• if an employee is dismissed during a probationary period, he has the right to notify management no later than 3 days in advance - Art. 71 TK;
• if the manager resigns, this period is extended to 30 days - Art. 280 TK.

If an employee is unable to work (upon applying for a pension) or violations of labor standards by the employer are discovered, dismissal occurs within the period specified in the application.

Step 2. Preparation and issuance of documents.

On the employee’s last day of work, the HR department prepares a dismissal order (Form No. T-8 or T-8a). The standard wording is indicated: “Employee initiative, clause 3 of Art. 77 TK". The employee gets acquainted with the order, signing the document, on the day of dismissal. If he needs a certified copy of the document, the employer is obliged to issue it upon the employee’s request. A certificate of the employee’s salary for the two years preceding the termination of the contract is also issued on the day of dismissal.

Along with the certificate, the employee receives written information about the information sent to the Pension Fund during the period of his work. This is form SZV-M (Resolution of the Board of the Pension Fund of 02/1/2016 No. 83p), section 6 of the form RSV-1 of the Pension Fund of Russia (Appendix No. 1 to the Resolution of the Board of the Pension Fund of 01/16/2014 No. 2p).

Read about what the STD-R form is and when it is issued to an employee in our material.

The HR department records the dismissal, the number and date of the order to terminate the employment contract on the personal card. The record is certified by the signature of the personnel officer and the employee himself.

Step 3 . Final settlement.

The HR department together with the accounting department draw up form No. T-61 - a note-calculation on the termination of the employment contract. After this, a full settlement is made with the employee.

Step 4 . Issuance of a work book and other documents (upon request).

An entry is made into the work book. The HR employee makes an entry in strict accordance with the Labor Code:

• serial number of the record;
• date of dismissal;
• reason for dismissal - the article and clause of the Labor Code are indicated as the reason;
• date and number of the document providing the basis for making the entry - most often the dismissal order.

The record is certified by the signatures of the HR employee, the dismissed employee and the seal of the organization (clause 35 of the RF Government Regulations dated April 16, 2003 No. 225). The employee is given a work book and other documents related to work if he requests them (Part 4 of Article 84.1 of the Labor Code).

Drawing up a note-calculation in form T-61

A settlement note in the unified form No. T-61 is not a document that must be drawn up and given to an employee upon dismissal by agreement of the parties. However, if a corresponding written statement has been received from the dismissed person, the employer must prepare a note-calculation and give it to the employee. Also, this document will have to be issued to the employee if this is provided for in the dismissal agreement itself.

Let us remind you that form No. T-61 contains information about vacations used and unused during work, as well as the calculation of payments upon dismissal.

Calculation of benefits and its amount

A one-time payment as severance pay must be calculated and paid on the day the employee is dismissed along with other mandatory amounts (Article 140 of the Labor Code). If the agreement does not establish a fixed amount, then the calculation is made depending on the average daily earnings and the number of days specified in the agreement. When calculating average daily earnings, one should be guided by Art. 139 TK.

If, by agreement of the parties, it is established that the employer undertakes to pay 3 salaries to the employee upon dismissal, then the amount of severance pay will be:

VP = Ok × 3,

• VP – severance pay;
• Ok - salary according to the position, according to the staffing table.

As a rule, the employer agrees to provide an ordinary employee with benefits in the amount of no more than three salaries. But, if the organization’s regulations do not provide for this type of payment upon dismissal, then you should only rely on your own gift of persuasion and the loyalty of the manager.

Full settlement with the employee

With regard to the amounts that are transferred to all dismissed employees (wages for time worked, compensation for unused vacation, bonuses), the general rules of Article 140 of the Labor Code of the Russian Federation apply. Such amounts must be transferred on the last day of work.

But additional amounts provided for in the dismissal agreement (including severance pay) can be paid at other times, if this is expressly provided for in this document. Such conclusions are contained in the report approved by Rostrud.

IMPORTANT. Do not forget to give the employee a pay slip (the employer must develop and approve the form of this document himself). If payments are made in several stages, then in each case a new payslip is issued.

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Personal income tax and insurance premiums

Calculation of taxes and contributions from the main type of payments, such as payroll and compensation for unused vacation, is carried out in the general manner. A personal income tax rate of 13% is applied to accrued amounts. If a citizen has the right to tax deductions, then they must also be provided. Insurance premiums will also have to be calculated and paid to the budget.

But the taxation of compensation has a special character. The tax treatment of these amounts is directly affected by their size. So, if the amount does not exceed three times the average monthly salary of the resigning person, then personal income tax cannot be withheld from compensation (Article 217 of the Tax Code of the Russian Federation).

For workers in the Far North, the amount of non-taxable compensation for the widow has been increased. That is, if, by agreement of the parties, a specialist who worked in the Far North resigns, the non-taxable amount is equal to six times the average monthly salary.

Similar conditions apply when calculating insurance premiums. Amounts of six average monthly salaries are recognized as non-taxable for employees of the Far North, and three average monthly salaries for everyone else.

If the amounts exceed the established limits, then personal income tax and insurance premiums are withheld in the usual manner.

Delivery of documents

All work-related documents (work book or information in the STD-R form, extracts from SZV-M, RSV and SZV-STAZH, salary certificate, etc.) are issued to the employee directly on the day of dismissal, that is, on the last working day. For more details, see “Documents when dismissing an employee.”

If the provision for the issuance of such documents is included in the text of the dismissal agreement, it is advisable to obtain a signature from the employee on the copy of the agreement that remains with the employer. This will confirm the timely transfer of the relevant papers to the dismissed employee.

Severance pay upon dismissal by agreement of the parties

The dismissal agreement may stipulate the employer’s obligation to pay the dismissed employee severance pay. For commercial organizations, the amount of such benefits is not limited by law (Article 349.3 of the Labor Code of the Russian Federation). In other words, the employer and employee can agree on absolutely any amount of compensation (severance pay).

But it is still better not to set too large amounts of “compensation”. Such behavior may be regarded as an abuse of law, which will undoubtedly give the tax authorities grounds for excluding the corresponding amounts from expenses (see the appeal ruling of the St. Petersburg City Court dated March 27, 2018 No. 33-6196/2018).