Should I pay vacation? Calculation of vacation pay by an individual entrepreneur

I've been working for SP for 11 years. During these years of work, I have never been given a vacation, much less compensated for it. is it legal?

Is an individual entrepreneur obliged to provide employees with vacation and pay for it?

Expert answers

Hello. Yes, of course you must.

Since individual entrepreneurs are recognized as the same employers as legal entities consequently, the right to paid annual leave also applies in full to the employees of the merchant.

Moreover, annual leave is granted individual entrepreneur to each person working for him on the basis of an employment contract, including at home, at seasonal work or concurrently. At the same time, it does not matter which labor contract concluded with the employee - urgent or for an indefinite period. The employee's right to leave arises even if he works for a merchant on the basis of an employment contract concluded for a period of up to two months, as indicated by Art. 295 of the Labor Code of the Russian Federation.

In addition to the answer of a colleague

See also the Rules on regular and additional holidays, approved by the People's Commissariat of Labor of the USSR on April 30, 1930 N 169

In addition to the answer of a colleague

Article 127. Labor Code of the Russian Federation Implementation of the right to leave upon dismissal of an employee

Upon termination, the employee is paid financial compensation for all unused vacations.

See also the Rules on regular and additional holidays, approved by the People's Commissariat of Labor of the USSR on April 30, 1930 N 169

At the written request of the employee, unused vacations may be granted to him with subsequent dismissal (with the exception of cases of dismissal for guilty actions). In this case, the day of dismissal is considered the last day of vacation.

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Hello!

No, not legal.

According to Article 114 of the Labor Code of the Russian Federation Employees are granted annual leave while maintaining their place of work (position) and average earnings.

I advise you to apply to the court with a claim for unused vacation pay. By virtue of Article 392 of the Labor Code of the Russian Federation For the resolution of an individual labor dispute about non-payment or incomplete payment wages and other payments due to the employee, he has the right to apply to the court within one year from the date of due date payment of the specified amounts, including in the event of non-payment or incomplete payment of wages and other payments due to the employee upon dismissal

Hello!

No, not legal.

But the main thing here is whether you have an employment contract. It is in it that your right to an annual leave should be spelled out.

According to Article 114 of the Labor Code of the Russian Federation Employees are granted annual leave while maintaining their place of work (position) and average earnings.

If you work under normal working conditions, leave should be 28 calendar days (Article 115 of the Labor Code of the Russian Federation)

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An interesting fact - if you are a sole trader with your employees. they have better protection than you. It is easier for your employees to get a loan from a banking institution, they can get a paid maternity leave, and it is no longer necessary to mention that they are entitled to receive a monthly vacation once a year. At the same time, an individual entrepreneur cannot get (or rather, it is not so easy) a loan from a bank, it is difficult for him to get a paid maternity leave and besides this, it is difficult for him to go on a simple vacation. Or rather, an individual entrepreneur can go on vacation, but this is quite problematic, especially for those businessmen who do not have stable income. In the event that your business does not bring you sufficient profit, a two-week vacation in Turkey can significantly worsen your business.

If your business is a popular online store or other online business, in this case everything can be done, since payments can be made from almost anywhere in the world, and in addition, you get the opportunity to control your business around the clock.

Another question is, what kind of vacation in this case?

If you have been working on your business for a year, you probably want to take a break from everything. Even the most interesting case is very exhausting. Especially if you work on holidays and weekends.

How to apply for a vacation for an individual entrepreneur? There is no answer to this question, since it is impossible to document it. (excluding maternity leave). But technically it can be organized in various ways:

Hire a person during your unauthorized "vacation" who will monitor the safety of your business and contact you if something goes wrong. You can just give a damn about everything for a while, advertising to customers, they say, so and so. We have holidays and we will work only in 2 weeks.

In addition, at the legislative level, an entrepreneur is not forbidden to rest even for a whole year. The only thing that is required is to pay taxes and rest for your money.

As for maternity leave, it is calculated based on the previous entrepreneurial activity within 2 years. It should be noted that such leave also includes the time before the birth of the child.

Before taking a vacation for an individual entrepreneur, it should be remembered that maternity leave for an individual entrepreneur is paid time for a period of:

140 days for classic pregnancy;

156 days for classic pregnancy with complications;

194 days for multiple pregnancy.

Before taking a vacation as an individual entrepreneur, it is important to understand that cash benefits for a woman should be considered in individually. Individual entrepreneurs have the right to apply for maternity leave during pregnancy, in addition, maternity allowance is paid to a woman for one and a half years if insurance payments (insurance payments) were paid to the FSS. Cash benefits come with the only condition that the IP has fully covered all insurance premiums during the year before the actual insured event (pregnancy).

As for the documents that are necessary to receive benefits for non-maternity leave by an individual entrepreneur, for cash payments must provide:

Birth certificate of the child;

Confirmation from work that the other parent did not receive benefits.

Documents from the authorities of the registry office;

Among other things, if one parent works, the allowance comes from the place of work.

The amount of maternity payments:

The largest amount of such benefits cannot exceed 16,480 rubles. After becoming an individual entrepreneur, a child benefit is paid in the amount of five hundred rubles. After the birth of the child, the amount of money paid for the child rises to eight thousand rubles. In addition, the amount of payments reaches 1.5 thousand rubles. until the child reaches the age of one and a half years. This amount is paid by various federal authorities, for example, the public insurance fund, at the university, if an individual entrepreneur is undergoing training or by a military unit.

An individual entrepreneur-"spontaneous" has a single employee who is on leave to care for a child up to one and a half years and receives a monthly "children's" allowance from the FSS of the Russian Federation. Can an individual entrepreneur reduce UTII by the amount of insurance premiums paid for himself in a fixed amount without a 50% limit? Yes, maybe, the Ministry of Finance of Russia answered in a letter dated 18.07.14 No. 03-11-11 / 35496, thereby consolidating its position on this issue.

Recall that paragraph 2 of Article 346.32 of the Tax Code of the Russian Federation allows you to reduce the single tax calculated for a certain tax period (quarter) by the amount of insurance premiums paid in the same tax period.

IP leave application

The so-called "private traders" or self-employed entrepreneurs, just like all companies, have many opportunities to hire specialists. And those, in turn, have the right to paid vacations and vacations at their own expense. In any case, the application is filled out almost one hundred percent similar to what can be seen on the desk of the head of a large corporation. The sample application for an IP vacation differs only in the “header” in which the data of a particular IP should be indicated - “To the individual entrepreneur Sidorov O.

Individual entrepreneurs. Vacations. Vacations of employees of an individual entrepreneur

There is often an opinion among individual entrepreneurs that they are not obliged to provide vacations to their employees. This point of view is fundamentally wrong, and it can lead the entrepreneur to a labor dispute with the employee, which will be resolved by arbitrators. At the same time, we can say with confidence that the court will decide in favor of the employee, since the employee working under an employment contract with a merchant is fully covered by all the guarantees and compensations provided for by the Labor Code of the Russian Federation.

Relations between a merchant-employer and an employee, including in terms of granting holidays, are built on the basis of the Labor Code of the Russian Federation, as well as other laws and regulations that do not contradict the Labor Code of the Russian Federation.

How to write an application for a vacation from an IP

Leave application is the following types:

The employee has the right under the law (Article 122 of the Labor Code of the Russian Federation) to provide annual paid leave after 6 months continuous work In the organisation. By agreement of the parties, an employee may be granted paid leave earlier than the specified time. Further provision of rest days is made in accordance with the vacation schedule and taking into account the length of service of the employee.

An employee may take leave at his own expense for a good reason.

How to determine the number of employees for calculating UTII?

The average (average) number of employees per month is determined by summing up the number of employees for each calendar day of the month, i.e. from the 1st to the 30th or 31st (for February - to the 28th or 29th), including holidays (non-working) and weekends, and dividing the amount received by the number of calendar days of the month.

If IPs work external part-timers or part-time workers, the average employment is determined in proportion to hours worked.

In February, an individual entrepreneur had 2 employees, one of whom is a part-time worker, works 4 hours a day, the second works part-time - 2 hours a day.

In March, an individual entrepreneur had 4 employees, with one of whom a work contract was concluded from February to May, from March 4, one of the employees went on maternity leave.

Elbe contour

Every sole proprietor wonders from time to time whether to hire workers. Of course, being “individual” is good, but when the business grows, and the individual entrepreneur can no longer cope with all the work, it becomes obvious that new working hands are needed. Well, heads, and legs, and everything else. Of course, you need to know that when employees appear at an individual entrepreneur, he becomes an employer, and must, within the time limits specified by law, register as an employer in:

Labor Code established that the document confirming the work of an individual entrepreneur is, in addition to work book, an employment contract with an individual entrepreneur (if the employee is hired for permanent job) or a civil law contract (GPC).

Hired workers at an individual entrepreneur

An individual who has been registered with the relevant authorities in accordance with the requirements of the law is an individual entrepreneur. After registration, he has the right to engage in the activities of a businessman on the basis of and within the framework of the relevant legislation for an individual entrepreneur.

The activity of an individual entrepreneur is aimed at making a profit, for example, from the sale of any product, the performance of certain works or services.

IP leave application

Individual entrepreneurs. Vacations. Vacations of employees of an individual entrepreneur

How to write an application for a vacation from an IP

Leave requests are of the following types:

The employee has the right under the law (Article 122 of the Labor Code of the Russian Federation) to be granted annual paid leave after 6 months of continuous work in the organization. By agreement of the parties, an employee may be granted paid leave earlier than the specified time. Further provision of rest days is made in accordance with the vacation schedule and taking into account the length of service of the employee.

How to determine the number of employees for calculating UTII?

If an individual entrepreneur has external part-time workers or part-time workers, the average employment is determined in proportion to the hours worked.

Elbe contour

The Labor Code established that, in addition to the work book, an employment contract with an individual entrepreneur (if the employee is hired for a permanent job) or a civil law contract (GPC) is a document confirming work for an individual entrepreneur.

Hired workers at an individual entrepreneur

The activity of an individual entrepreneur is aimed at making a profit, for example, from the sale of any product, the performance of certain works or services.

The employee's vacation falls in July (13 days) and August (15 days). All holiday pay and taxes are calculated in good faith. Tell me when to transfer taxes accrued from these same vacation pay to the tax, Pension and FSS - pay everything on August 15 (for July) or divide the payments in proportion to the days of vacation?

The employee's vacation falls in July (13 days) and August (15 days). All holiday pay and taxes are calculated in good faith. Tell me when to transfer taxes accrued from these same vacation pay to the tax, Pension and FSS - pay everything on August 15 (for July) or divide the payments in proportion to the days of vacation?

According to the decree of the Ministry of Finance, the cost of vacation pay relates to the period in which the employee was on vacation.

Hello.

In accordance with the provisions of Article 107 of the Labor Code of the Russian Federation, vacation is one of the types of employee rest time. Legal basis vacations are governed by the provisions of Chapter 19 of the Labor Code of the Russian Federation. In accordance with the provisions of Articles 114 and 115 of the Labor Code of the Russian Federation, leave is granted to an employee once a calendar year with the same position and average earnings. Vacation duration is 28 calendar days.
At the same time, labor legislation does not prohibit the employer from establishing additional paid holidays for their employees.
In accordance with the provisions of Article 122 of the Labor Code of the Russian Federation, the right to use leave for the first year of work arises for the employee after six months of his continuous work with this employer. By agreement of the parties, an employee may be granted paid leave before the expiration of six months.
According to the provisions of Article 126 of the Labor Code of the Russian Federation, the provision of leave can be replaced by monetary compensation. However, only that part of the vacation that exceeds 28 calendar days can be compensated. The rules of this article establish cases in which compensation is prohibited. Such cases include compensation for the main paid annual leave and annual additional paid leave for pregnant women and employees under the age of eighteen, as well as annual additional paid leave for employees engaged in hazardous industries or in jobs with harmful (dangerous) working conditions. The exception is monetary compensation for unused vacation upon dismissal of this category of employees.
Please note that non-compliance with labor laws when granting vacations to their employees, the taxpayer risks losing the right to recognize the expenses incurred in tax accounting.
Let's give an example, for example, an individual entrepreneur applying a simplified tax regime in accordance with the provisions of Chapter 26.2 of the Tax Code of the Russian Federation pays monetary compensation to his employees for unprovided vacation in 2008. Based on the provisions of Article 346.16 of the Tax Code of the Russian Federation, he recognizes the amount of monetary compensation as part of the single tax expenses in connection with the application of the simplified taxation system. In this situation, the actions of the taxpayer will be unlawful, since he violated labor laws by not providing his employees with the main annual paid leave, and monetary compensation is possible only in excess of 28 calendar days of the main vacation, except in cases of dismissal of the employee.
Individual entrepreneurs - single tax payers who have chosen income reduced by the amount of expenses incurred as an object of taxation, on the basis of subparagraph 6 of paragraph 1 of Article 346.16 of the Tax Code of the Russian Federation, can take into account vacation expenses as part of labor costs.
Expenses of a taxpayer applying the simplified taxation system are reflected in tax accounting on the basis of primary accounting documents. Forms of primary accounting documents, on the basis of which the simplified will recognize vacation expenses in his account, approved by the Decree of the State Statistics Committee Russian Federation dated 05.01.2004 N 1 "On the approval of unified forms of primary accounting documentation for accounting for labor and its payment."
The direct procedure for determining the amount of vacation pay is enshrined in article 139 of the Labor Code of the Russian Federation. In accordance with this article, the amount of vacation pay is determined as the product of the number of vacation days by the average daily earnings for vacation pay and compensation for unused vacation, which is calculated for the last 12 calendar months by dividing the amount of accrued wages by 12 and by 29.4 (average monthly number calendar days).
The average daily earnings for the payment of holidays provided in working days, as well as for the payment of compensation for unused holidays, is determined by dividing the amount of accrued wages by the number of working days according to the calendar of the six-day working week.
In accordance with the provisions of paragraph 2 of Article 346.16 of the Tax Code of the Russian Federation, labor costs under the simplified taxation system are accounted for in the manner prescribed by Article 255 of the Tax Code of the Russian Federation.
So, on the basis of subparagraphs 7 and 8 of Article 255 of the Tax Code of the Russian Federation, the expenses of a simplified taxpayer may include expenses for the payment of vacations, including expenses for the employee’s travel to the place of use of the vacation and back together with a dependent, as well as expenses of an organization or an individual entrepreneur in the form compensation for unused vacation.
These expenses of the simplifier are taken into account upon payment, provided that they are recognized as justified and documented in accordance with the requirements of Article 252 of the Tax Code of the Russian Federation. This fact follows from the provisions of Article 346.17 of the Tax Code of the Russian Federation, which indicates that single tax payers use tax accounting cash method of recognition of income and expenses.
The provisions of Chapter 26.2 of the Tax Code of the Russian Federation for single tax payers in connection with the application of the simplified taxation system do not provide for the formation of a reserve for the payment of vacations, as is permitted in the provisions of Chapter 25 of the Tax Code of the Russian Federation.
Please note that in relation to the amounts of vacation pay paid to its employees, an organization or an individual entrepreneur using a simplified taxation system is recognized as a tax agent for personal income tax (hereinafter referred to as personal income tax).
This fact directly follows from the provision of paragraph 5 of Article 346.11 of the Tax Code of the Russian Federation, as well as from the norm of paragraph 1 of Article 226 of the Tax Code of the Russian Federation. Tax agents are responsible for calculating, withholding and transferring tax amounts to the budget.
In accordance with the provisions of Article 226 of the Tax Code of the Russian Federation, the amount of personal income tax calculated by the tax agent - simplified workers from vacation pay is subject to transfer to the budget:
-not late afternoon actual receipt of cash from the bank Money to pay income to an individual;
- no later than the day of transfer of income amounts individual from the account of the organization go to the individual entrepreneur to the account of the employee.
At the same time, please note that organizations or individual entrepreneurs that apply the simplified tax regime and have chosen income minus expenses as an object of taxation when calculating the tax base must take into account the entire amount of vacation pay paid to employees, that is, taking into account the amount of personal income tax. Separately, in the composition of the expenses of the single tax payer in connection with the application of the simplified taxation system, the amounts of personal income tax paid for their employees are not included in the composition of expenses for the purpose of calculating the tax base. This point of view is also shared by the Ministry of Finance of the Russian Federation in Letter No. 03-11-04/2/176 of July 12, 2007. The same situation exists with respect to wages.
The issue of accounting for vacation expenses is interesting if an organization or an individual entrepreneur combines a simplified taxation system with UTII system. In this case, one should be guided by the provisions of paragraph 8 of Article 346.18 of the Tax Code of the Russian Federation, which states that when these special tax regimes are combined, if it is impossible to share the costs incurred, their distribution is carried out in proportion to the shares of income in the total income received under the application of these special tax regimes.
Please note that based on the provisions of the Federal Law of November 21, 1996 N 129-FZ "On Accounting", organizations that apply the simplified taxation system in accordance with the provisions of Chapter 26.2 of the Tax Code of the Russian Federation have the right not to keep accounting records and submit financial statements. However, this right does not apply to all single tax payers. If the simplified taxation system is combined with the UTII system, the taxpayer is obliged to keep separate records, as well as keep accounting records and submit financial statements to the tax authority.
Please note that individual entrepreneurs (single tax payers due to the application of the simplified taxation system) are not subject to the requirement to maintain accounting records.
The fact that expenses when combining several special tax regimes are subject to distribution is directly stated in the tax legislation, however, what is the procedure for such distribution, the legislator is silent.
On this occasion, the financial department in the Letter of May 28, 2007 N 03-11-05 / 117 and in the Letter of April 28, 2010 N 03-11-11 / 121 indicated that expenses that cannot be unambiguously attributed to one and another special tax regime are subject to distribution at the end of the reporting period on an accrual basis from the beginning of the year. At the same time, there are Letters in which the Ministry of Finance of the Russian Federation indicates that these expenses should be distributed every month. In particular, this is stated in the Letter of the Ministry of Finance of the Russian Federation dated November 20, 2007 N 03-11-04 / 2/279.
In accordance with the provisions of Chapter 26.2 of the Tax Code of the Russian Federation, organizations and individual entrepreneurs applying the simplified tax regime are required to pay insurance premiums for themselves and their employees in accordance with the provisions of the Federal Law of the Russian Federation of July 24, 2009 N 212-FZ "On insurance premiums in The Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund and the Territorial Compulsory Medical Insurance Funds" (hereinafter - Federal Law N 212-FZ). Vacation pay is no exception. If the employer provides employees additional leave, paid at their own expense, then the amounts of such vacation pay are subject to insurance premiums in accordance with the provisions of this law.