What to do if the employer withheld personal income tax, but did not transfer it to the budget?

List of duties of a tax agent

In accordance with the Tax Code of the Russian Federation, all employers who enter into employment contracts with employees are tax agents. Except for the employer, who is an individual and has not registered an individual entrepreneurship.

The responsibilities of a tax agent may include:

1. Calculate (calculate) income tax from your employee’s wages.
2. To withhold the amount that is subject to transfer to the budget as personal income tax.
3. Transfer taxes to the state monthly.

The tax agent-employer is obliged to withhold and transfer tax to the budget, only then will he be fully acting. An employee is not responsible for failure to comply with his employer's tax rules.

If an employee quits

It happens that a company finds an error in personal income tax when an employee quits. In this case, it will not be possible to deduct tax from the employee’s salary, and the tax office must be notified about this before March 1 of the next year.

In 2021, the company incorrectly paid personal income tax to Anatoly. But the mistake was discovered when Anatoly left to work elsewhere. This means that you must notify the tax authorities about the error before March 1, 2019.

• Inform the tax office in writing that it will not be possible to withhold tax from your salary. To do this, you need to fill out a 2-NDFL certificate with the sign “2” and send it to the tax office.

A way to find out about the fact of transfer of the tax amount

To find out whether an employer pays tax for an employee, you should use the following methods:

1. Request the employer to provide a certificate in format 2 personal income tax. It reflects all transfers to the budget. But, unfortunately, it can be easily faked if the employer deliberately tries to hide the fact of fraud.
2. On the official website of the tax authority, you can open your personal account and find out about the availability of transfers.
3. Free portal for public services on the Internet. To do this, you will need to make a free request on the website, and the user will receive a file with an extract for all places of work. It indicates the organizations and the amounts they transferred for the employee during his work there.

The fact may be discovered at the time of filing a tax return with a government agency in order to obtain a deduction.

The employer has not paid the withheld personal income tax: what to do and where to go?

Organizations and individual entrepreneurs become tax agents from the moment an employment contract is signed with a citizen. The agent is obliged to calculate income tax, withhold it from salary and pay it to the budget (Article 226 of the Tax Code of the Russian Federation). Personal income tax is transferred monthly. If income tax has been withheld, the employer is responsible for paying it, not the employee.

You can find out how conscientiously a tax agent pays personal income tax in the following ways:

• request a 2-NDFL certificate from the accounting department, which reflects the withheld income tax (even if the certificate is falsified, it will be required when filing a complaint against the employer);
• register on the official portal of the Federal Tax Service, use your personal account;
• submit a request through the State Services portal (the user will receive a statement with the amounts paid to the budget by his employers).

If the taxpayer remains inactive, the fact of non-payment of income tax will sooner or later be revealed, for example, when filing a declaration.

Actions upon detection of non-payment of taxes to the budget

After an employee finds out that the employer withholds tax but does not transfer it to the state, he should contact the following authorities:

1. Labor inspectorate or directly to the Prosecutor's Office.
2. Branch of the Tax Authority at the employer's registered address.

The employee must fill out an application and attach documents that prove the fact of withholding and non-transfer of tax.

These types of papers include:

1. An employment contract that was concluded by both parties. It indicates the full cost of wages without taking into account personal income tax withholding.
2. Accounting statements and settlement certificates. From them you can see that the employee receives wages with a withheld amount of 13%.

Also confirming that the tax has not been transferred to the state account is a Form 2 personal income tax certificate.

Filling out the second section of the form

The form is filled out by the accountant quarterly and reflected in

• field 130 - payments to employees for the current quarter are recorded,
• field 140 – respectively, taxes withheld.

What about income: filled in by the employer with the total amount, taking into account payments to all individual employees, however, divided by type of transfers line by line. Each remuneration amount in lines 100 - 120 is filled out divided into three periods:

1. actual date of receipt of income
2. hold date
3. and paying tax

The dates in field 110 and 120 will never match, see video explanation. Line 120 records the date determined by law for the transfer of funds, but not the actual date when this was done.

The first section is completed from the beginning of the year and shows the total amount of remuneration paid over the entire period.

Receiving a tax deduction

An urgent need for the truth arises when an employee tries to legally obtain a deduction from the state. In fact, the employer did not make transfers to the budget; can the employee claim a tax refund?

Such situations in our country, unfortunately, are not uncommon, therefore the Ministry of Finance of the Russian Federation provided an explanation on this problem in an official letter dated June 15, 2012 at the legislative level. That is, if the fact of tax withholding from an employee’s salary took place, then the tax authority does not have the right to refuse to provide the required deduction. The employee is not responsible for the improper actions of his employer, who failed to fulfill the duties of a tax agent.

IMPORTANT !!! If an employee has established such non-compliance, he can file a complaint with the labor inspectorate.

The employee continues to work

The salary was paid, but personal income tax was forgotten. But the employee continues to work on staff. In this case, you will have to recalculate personal income tax and deduct it from the employee’s future income: wages, sick leave, vacation pay. That is, he will receive less money than he expected.

By law, personal income tax can only be withheld in the current tax period. For example, for 2021 - until April 1, 2021. After this date you will have to pay a fine.

Here is the procedure step by step:

1. Recalculate the personal income tax for the employee for the quarter and understand how much you need to pay extra.
2. Warn the employee that he will receive less money because he received more by mistake last time.
3. Transfer the missing tax amount by the end of the quarter.
4. Correct form 6-NDFL for the quarter in which there was an error.
5. Correct the 2-NDFL certificate for the employee by the end of the year.

In the corrective report on Form 6-NDFL, you must indicate the adjustment number and the correct amounts:

• if you are correcting a mistake for the first time, it will be about;
• the second is “002” and so on.

Write like this if you notice a mistake for the first time:

You can report on Form 6-NDFL in different ways: for a quarter, six months, nine months or a year. If a company submits Form 6-NDFL quarterly and discovers an error for the first quarter at the end of the year, all forms will have to be corrected.

Certificate 2-NDFL - certificate of income of individuals. In case of an error, you will also have to correct it and draw up a corrective certificate:

certificate number (field “N___”) - certificate number with an error;

certificate date (field “from __.__.____”) - date of the corrective certificate. This is the date when you draw up a new certificate;

correction number—correction number. If you are correcting for the first time, write 01.

If personal income tax was calculated incorrectly or was not paid for several months, it will not be possible to correct the error in one go. By law, you cannot take more than half of an employee’s salary or vacation pay for taxes. Therefore, you will have to draw up several corrective certificates 2-NDFL and 6-NDFL.

Penalties for non-payment of personal income tax to the budget

Before 2021, employers who were tax agents were required to calculate and transfer tax to the budget on the day when wages were paid to employees. Currently, the tax must be transferred no later than the next day after the income component is paid to all employees. Exceptions are sick leave and vacation pay. Time is allocated for them at the end of the calendar month (Article No. 226 of the Tax Code).

In accordance with Article No. 123 of the Tax Code, the employer faces a fine of 20% of the amount to be transferred to the budget. In the event that he did not transfer it to the state at all or not in full. The tax authority conducts periodic inspections of organizations and various firms for violations. Therefore, the employer will not be able to hide and conceal non-payment for a long time, and the consequences are serious.

ATTENTION !!! If the employer withheld the tax amount but did not transfer it to the budget, then, in accordance with Article No. 75 of the Tax Code, penalties will be charged for each day of delay.

The amount of the penalty is based on the rate of the Central Bank of the Russian Federation on a particular day. Penalties for fines are provided not only for withholding the tax amount and not transferring it to the budget, but also for missing the reporting date when it is necessary to submit a tax return.

If the employer does not provide information in accordance with Form 2 of personal income tax within the prescribed period, then the fine is set at 200 rubles for the document not provided and subsequent reporting papers. There are also sanctions for failure to submit a quarterly statement of income and expenses.

What is the problem

Employers act as tax agents for personal income tax for employees and pay this tax for them. They deduct personal income tax from the salary amount and send the payment to the tax office. According to the rules, this must be done no later than the next working day after payday.

Sometimes salaries are paid, but personal income tax is forgotten, the tax is calculated incorrectly, or the tax is paid using incorrect details. Then the tax office sends a fine or blocks the account.

An entrepreneur from Tula paid personal income tax on each salary of his employees. But the payment details changed, but he didn’t know and paid according to the old ones. A year later, the tax authorities blocked his account and demanded that he pay 200,000 rubles in personal income tax. Everything ended well. The personal income tax was found, the account was unblocked, but the entrepreneur spent three days to resolve all this.

The good news is that if you find the error yourself and report it to the tax office, you won’t have to pay a fine. How to proceed depends on the situation:

• the company found an error regarding personal income tax in the same tax period, and the employee continues to work for the company;
• the error was found after the tax period, but the employee is still working;
• the employee quit.

It's easier with an example.

Anatoly Kalabushev is a manager at Tula Zhamki LLC. In July, some accountants were on vacation, others went out for training several times. Therefore, they paid him his salary, but forgot to withhold personal income tax.

• The first situation: in September the accounting department notices an error, and Anatoly works for the company.
• Second: the error pops up in July next year, but Anatoly is still working at Zhamki.
• Third: the company found an underpayment of personal income tax, but Anatoly quit.

We have made a plan for every eventuality.

Payment deadlines

Payment of personal income tax is made within the time limits established by law. Despite the payment of wages in the form of an advance and the main payment, deduction is made once at the end of the month.

Terms vary depending on the payment method:

Individual entrepreneurs and individuals pay personal income tax at the end of the reporting period. Funds must be received no later than July 15 of the following year.

For advance payments to individuals, deadlines are set depending on the reporting period. In the first half of the year, payments are made until 15.07, in the third quarter - until 15.10, and in the fourth - until 15.01.

Penalties will not apply if funds are withheld and transferred on time. Therefore, employers, individual entrepreneurs and individuals should carefully monitor this.

Personal income tax benefits in 2021 are available to certain categories of persons who are completely exempt from paying it. Such citizens include bankrupts and borrowers who have restructured their mortgage.

We'll tell you how to return excessively withheld personal income tax.

The personal income tax payment deadline can be viewed.

It happens that, by mistake of an accountant, personal income tax was not withheld from the employee and was not transferred to the budget. What to do in such cases and how to competently correct the error that has arisen with minimal risks?

Basic norms

In order not to run into a fine for non-payment of personal income tax by a tax agent in 2021, you must comply with the following requirements:

Statute of limitations and identification features

The tax authorities' demands to pay fines, arrears and penalties have a time limit of 3 years (clause 1 of Article 113 of the Tax Code of the Russian Federation). After this period, it is difficult to recover the amount.

The unpaid amount is usually identified as a result of a tax audit, on the basis of which a report on the discovery of the debt is drawn up.

Remember: timely identification of financial obligations to the budget and compliance with legal regulations will allow you to avoid fines for non-payment of personal income tax. This will prevent additional losses and litigation.