Severance pay upon liquidation of an organization - how to calculate. Severance pay upon liquidation of an enterprise

09.05.2018, 14:33

The liquidation of an enterprise is always accompanied by mass layoffs of personnel. Labor relations are terminated early with all employees, including pregnant women and minors. Severance pay upon liquidation of an organization is due to each employee of the company.

Interaction with personnel during the liquidation of an enterprise

The launch of measures to liquidate a company can be voluntary or compulsory. In the latter case, the basis is a court decision that has entered into force. In turn, with a voluntary form of termination of activity, the procedure can be initiated by the founder of the company. Moreover, in this situation there may not be compelling reasons for such a step; a written expression of the will of the founder is sufficient.

Voluntary closure of a business is impossible without first making a final settlement with the hired personnel. Labor law requires compliance with the following sequence of actions:

• making a decision on liquidation;
• documentation of the founder’s will to close the business;
• warning employees about upcoming dismissal;
• creation of a liquidation commission and appointment of its chairman;
• transfer of management functions by the director to the chairman of the commission;
• final settlement with the staff (salary for the last month is paid, compensation for vacations, severance pay upon liquidation of the organization according to the Labor Code of the Russian Federation);
• registration and issuance of employee documents on the day of dismissal.

Employees are notified against signature. Each person must be notified of impending dismissal in advance.

Payment of severance pay

In addition to severance pay, employees may receive compensation for early dismissal. However, this is not a mandatory condition for liquidation. The decision to prematurely terminate the relationship between an employee and an employer is made taking into account the opinion of each interested party. The date of dismissal cannot be changed unilaterally.

Members of the workforce who are dismissed as a result of the liquidation of an enterprise may exercise the right to receive compensation for the period of employment. For the second month, payment is assigned if there are no new entries in the work book. Extension of the payment period for a third month is allowed after agreeing on the decision with the employment service. In the conditions of the Far North, it is possible to extend the period for payment of compensation to six months.

The average salary of an employee is calculated according to the rules established in Decree of the Government of the Russian Federation dated December 24, 2007 No. 922. Calculation of severance pay upon liquidation of an organization is carried out according to the formula:

Amount of severance pay = Average daily earnings × Number of working days in a month, calculated according to the work schedule of the dismissed employee

When calculating the final benefit value, the number of paid days does not take into account holidays and weekends.

In turn, the average daily earnings are the result of dividing the employee’s income for the billing period divided by the actual number of working days (shifts) in a given period. In formula form it looks like this:

Average daily earnings = Employee income for the billing period ÷ Number of working days (shifts) in a given period

Taxes on benefits

Now let's say a few words about the taxation of severance pay upon liquidation of an organization. In accordance with current legislation, it is not taxed:

• personal income tax;
• insurance premiums.

The benefit is valid provided that the amount of the benefit generally does not exceed three times the average salary and six times the average salary for employees working in the Far North and equivalent areas (clause 3 of Article 217, subclause 2 of clause 1 of Art. 422 of the Tax Code of the Russian Federation, subparagraph 1, 2, paragraph 1, article 20.2 of the Federal Law of June 24, 1988 No. 125-FZ).

In a difficult economic situation, many organizations, for objective reasons, are forced to cease operations and lay off workers.

When terminating employment contracts, it is important not to violate the rights of employees, as well as to correctly draw up documents for dismissal and pay compensation established by law

In the absence of credit resources and non-payments of partners, some organizations cannot continue their activities, and the founders (participants) decide to liquidate these legal entities1. In turn, the liquidation of an organization entails the termination of labor relations with employees. Let us recall that, according to paragraph 1 of Article 81 of the Labor Code of the Russian Federation, the liquidation of an organization is one of the grounds for termination of employment contracts at the initiative of the employer.

General rules for dismissing employees during liquidation of an organization

After the founders decide to stop this type of business and liquidate the organization, a liquidation commission is appointed, to which all powers to manage the organization are transferred, including functions related to the dismissal of employees (Article 62 of the Civil Code of the Russian Federation). In accordance with paragraph 6 of Article 22 of the Federal Law of August 8, 2001 No. 129-FZ “On State Registration of Legal Entities and Individual Entrepreneurs,” the organization is considered liquidated from the moment an entry is made in the Unified State Register of Legal Entities.

Please note: if the liquidation of the organization does not take place, then all employees previously dismissed in accordance with paragraph 1 of Article 81 of the Labor Code of the Russian Federation can be reinstated to their previous jobs by a court decision. That is, it is legal to dismiss personnel on this basis if the organization is actually being liquidated and, in accordance with the legislation of the Russian Federation, a decision has been made to terminate its activities without transferring rights and responsibilities through succession to other persons. This follows from Article 61 of the Civil Code of the Russian Federation and paragraph 28 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2.

Thus, the liquidation of an organization should not be confused with a change in the owner of its property or a change in the jurisdiction (subordination) of the organization, as well as with its reorganization (Article 75 of the Labor Code of the Russian Federation).

Since the liquidated organization has no legal successors, all employees without exception are subject to dismissal, including pregnant women (Article 261 of the Labor Code of the Russian Federation), employees with children under the age of three, single mothers, persons under 18 years of age (Article 269 of the Labor Code RF), as well as employees on vacation or sick leave (Article 81 of the Labor Code of the Russian Federation). For example, an organization that is in the process of liquidation generally has the right to terminate an employment contract with an employee under 18 years of age. This means that the consent of the state labor inspectorate and the commission for minors’ affairs and protection of the rights of such workers is not required (Article 269 of the Labor Code of the Russian Federation).

Any organization that ceases its activities is obliged to comply with the sequence and timing of activities related to the termination of employment contracts with employees. This will help avoid possible conflicts with individual employees, unjustified material costs associated with legal costs, and other negative consequences.

The sequence of actions of the employer in relation to laid-off employees during the liquidation of the organization is shown in the diagram (see figure). Let's take a closer look at it.

Notification of the employment authority

If the organization is being liquidated and termination of employment contracts with employees is inevitable, the employer must notify the employment service authority in writing no later than two months before the start of the relevant activities. The notification indicates the position, profession, specialty and qualification requirements for employees, the terms of remuneration for each of them. This obligation is enshrined in paragraph 2 of Article 25 of the Law of the Russian Federation of April 19, 1991 No. 1032-1 “On Employment of the Population in the Russian Federation” (hereinafter referred to as Law No. 1032-1). The form of notification is not established by Law No. 1032-1, so it is drawn up in any form.

If the decision to liquidate the organization will lead to mass layoffs, then notification must be submitted no later than three months in advance (Article 180 of the Labor Code of the Russian Federation and paragraph 2 of Article 25 of Law No. 1032-1). The criteria for mass dismissal are determined in industry and territorial agreements (Article 82 of the Labor Code of the Russian Federation).

For example, according to the Industry Agreement on Organizations of the Federal Agency for Special Construction for 2008-20102, the release of more than 10% of the payroll is considered massive. Therefore, an organization belonging to the specified industry and in the process of liquidation must submit a notification to the employment center authority no later than three months before the dismissal of all employees on the payroll.

In a situation where there are no sectoral and (or) territorial agreements, the rules established by the Regulations on the organization of work to promote employment in conditions of mass layoffs are used3. This provision also provides notification forms for mass layoffs of workers.

Responsibility for the employer’s failure to fulfill this obligation is not directly established by Law No. 1032-1, but for failure to provide or untimely provision of information (information), the employer may be held administratively liable in accordance with Article 19.7 of the Code of Administrative Offenses of the Russian Federation. The fine for an organization is from 3,000 to 5,000 rubles, for an official - from 300 to 500 rubles.

Union Notice

The norms of the Labor Code, which provide for the mandatory participation of a trade union organization in considering issues related to the termination of an employment contract at the initiative of the employer, do not provide for cases of dismissal in connection with the liquidation of an organization (Article 82 of the Labor Code of the Russian Federation). At the same time, in accordance with paragraph 3 of Article 21 of Law No. 1032-1, mass dismissal of workers must be carried out after prior (at least three months) notification in writing to the elected trade union body in the manner prescribed by labor legislation. A similar norm is contained in paragraph 2 of Article 12 of the Federal Law of January 12, 1996 No. 10-FZ “On trade unions, their rights and guarantees of activity.”

Thus, the trade union body must be notified in writing about events related to the dismissal of workers during the liquidation of an organization that meet the mass criteria, no later than three months before the start of the dismissal. The notification is drawn up in any form. For convenience, you can submit a notification in the same form as to the employment authority.

Notification to employees

Employees of the organization (including part-time workers) are notified of dismissal due to the liquidation of a legal entity against signature, indicating the date of familiarization with this document and at least two months before the day of the upcoming dismissal. Those working under employment contracts concluded for a period of up to two months are notified of dismissal at least three calendar days in advance (Article 292 of the Labor Code of the Russian Federation), and persons employed in seasonal work - at least seven calendar days in advance (Article 296 Labor Code of the Russian Federation).

In the event of bankruptcy of an employee organization, the bankruptcy trustee informs about the upcoming dismissal no later than one month from the date of commencement of bankruptcy proceedings (Clause 2 of Article 129 of the Federal Law of October 26, 2002 No. 127-FZ “On Insolvency (Bankruptcy)”).

The employer, with the written consent of the employee, has the right to terminate the employment contract before the expiration of a two-month period by paying additional compensation in the amount of average earnings, calculated in proportion to the time remaining before the expiration of the notice of dismissal (Article 180 of the Labor Code of the Russian Federation).

Requirements for the execution of an employee notification are not established by law, so the document is drawn up in any form. One copy is given to the released employee, the other, on which the employee signed and indicated the date of review, remains in the organization.

If for some reason an employee does not want to sign a notice of upcoming dismissal, then the employer draws up a corresponding act signed by several witnesses, which records the fact of transmission of the notice and its date.

The act of the employee’s refusal to sign a notice of impending dismissal in connection with the liquidation of the organization and receiving it in person is drawn up in any form signed by an authorized representative of the employer (usually a personnel service employee) in the presence of at least two witnesses. Witnesses can be any employees of the organization or representatives of the established liquidation commission. In this case, the two-month notice period for the employee will be counted from the day following the day of drawing up the act.

Please note: an employee on a business trip must be recalled from the trip and given a notice against signature. He can be dismissed no earlier than two months from the date of delivery of the notice.

Order of dismissal and registration of work records

Orders in forms No. T-8 or T-8a on termination of employment contracts4 are issued after two months from the date of delivery of notifications to employees or ahead of schedule with the written consent of the employee. If an act was drawn up on the employee’s refusal to sign a notice of impending dismissal in connection with the liquidation of the organization and receive it in hand, then the dismissal order is issued after two months, starting from the day following the day of drawing up this act.

Each dismissed employee should be familiarized with the order against signature (Article 84.1 of the Labor Code of the Russian Federation). If it is impossible or refuses to familiarize, a note is made on the order: “Refused to familiarize” or “Impossible to familiarize against signature.”

After employees familiarize themselves with the dismissal orders, a record of termination of the employment contract is made in their work books.

A record of the basis and reason for termination of the employment contract is made in strict accordance with the wording of the Labor Code or other federal law with reference to the relevant article, part of the article, paragraph of the article. The basis is Article 84.1 of the Labor Code of the Russian Federation.

On the day of dismissal (last day of work), the employee, in accordance with the rules provided for in Article 140 of the Labor Code, is paid all compensation established by law and is given a completed work book.

Payments to employees upon liquidation of an organization

Upon termination of an employment contract due to the liquidation of the organization, the employer is obliged to pay the employee:

• wages for the time actually worked in the month of dismissal;
• compensation for all unused vacations (both main and additional) for all previous years without limitation (127 Labor Code of the Russian Federation);
• additional compensation for early termination of an employment contract (before the expiration of two months). Compensation is determined in the amount of average earnings, calculated in proportion to the time remaining before the expiration of the notice period for dismissal (Article 180 of the Labor Code of the Russian Federation);
• severance pay in the amount of average monthly earnings (Article 178 of the Labor Code of the Russian Federation). It follows from the provisions of Article 287 of the Labor Code of the Russian Federation that part-time workers are paid severance pay on a general basis;
• average earnings for the period of employment, but not more than two months from the date of dismissal (including severance pay paid);
• average earnings for the third month from the date of dismissal, if the employee submits a certificate from the employment agency (Article 178 of the Labor Code of the Russian Federation). A certificate is issued if the employee applied to this body within two weeks after dismissal and was not employed by it.

Let us remind you that upon dismissal of an employee who has entered into an employment contract for a period of up to two months, severance pay in the amount of average monthly earnings is not paid (Article 292 of the Labor Code of the Russian Federation). And if a seasonal worker is fired due to the liquidation of an organization, he must be paid severance pay in the amount of two weeks’ average earnings (Article 296 of the Labor Code of the Russian Federation).

note

Payments to pensioners upon liquidation of an organization
When terminating an employment contract due to the liquidation of an organization, the employer is obliged to pay the dismissed employee the average monthly salary for the third month from the date of dismissal, upon presentation of a work record book and a decision of the employment service authority. The decision is issued if the former employee registered with this body within two weeks after dismissal and was not employed by him (Article 178 of the Labor Code of the Russian Federation).

At the same time, according to Law No. 1032-1, citizens who are assigned an old-age labor pension or part of an old-age labor pension are not recognized as unemployed (clause 3 of Article 3 of Law No. 1032-1). Consequently, pensioners working at a liquidated enterprise cannot be registered as unemployed, since they are already socially protected by the state through the provision of a pension. Thus, the employment service should not issue a decision on maintaining the average earnings for the third month from the date of dismissal to pensioners. Judges adhere to a similar position (see decisions of the Federal Antimonopoly Service of the Central District dated April 2, 2007 in case No. A54-2967/2006 and dated March 16, 2004 in case No. A23-2779/03A-15-259).

Despite the established judicial practice and the direct provision of Law No. 1032-1, the following was explained in the letter of Rostrud dated October 27, 2005 No. 1754-61. The employment service authorities do not have sufficient grounds to make decisions regarding pensioners to refuse to retain their average monthly earnings during the third month from the date of dismissal in the manner established by Article 178 of the Labor Code of the Russian Federation, and to issue relevant documents (certificates) to pensioners.

Therefore, the employing organization is obliged to pay the dismissed pensioner the average salary for the period of employment, subject to the availability of appropriate documents.

Compensation in the amount of average earnings for the period of employment is not paid to employees who have entered into an employment contract for a period of up to two months, seasonal workers, as well as external part-time workers (after all, they have their main place of work).

Compensation for unused vacations

In addition to wages for the time actually worked in the month of dismissal, the employee, regardless of whether he has the right to vacation or not, is paid monetary compensation for all unused vacations (Article 127 of the Labor Code of the Russian Federation)5.

The amount of said compensation is calculated as follows. The calculated average daily earnings are multiplied by the number of calendar days of unused vacation to be paid.

When determining the number of days of payment for unused vacation, you should be guided by the Labor Code and the Rules on regular and additional vacations, approved by the People's Commissariat of Labor of the USSR dated April 30, 1930 No. 169 (hereinafter referred to as the Rules), applied to the extent that does not contradict the current labor legislation (Article 423 of the Labor Code of the Russian Federation ).

As you know, the duration of annual paid leave is 28 calendar days (Article 115 of the Labor Code of the Russian Federation). Accordingly, if an employee has worked a full working year, the employer pays him compensation for 28 calendar days, that is, for each of the 12 calendar months of the working year there are 2.33 calendar days of vacation (28 days × 12 months).

In the event that the working year is not fully worked, the vacation days for which compensation is paid are calculated in proportion to the months worked. Moreover, the length of service that gives the right to compensation upon dismissal does not include the periods listed in Article 121 of the Labor Code of the Russian Federation. In addition, surpluses amounting to less than half a month are excluded from the calculation of length of service, and surpluses amounting to half a month or more are rounded up to a full month (clause 35 of the Rules).

Such clarifications are given in the letter of Rostrud dated June 23, 2006 No. 944-6.

Please note: full compensation for unused vacation upon liquidation of an organization (for 28 calendar days) is paid to employees who have worked at least five and a half months in a working year (included in the length of service), provided that they have not used the right to vacation (p 28 Rules).

The organization may decide to round up the number of calendar days of payment of compensation for unused vacation. In this case, rounding is done not according to the rules of arithmetic, but in favor of the employee (letter of the Ministry of Health and Social Development of Russia dated December 7, 2005 No. 4334-17). For example, an employee is entitled to compensation for 2.33 calendar days of vacation, then this number of vacation days to be paid is rounded up to three days.
Average daily earnings are calculated in accordance with Article 139 of the Labor Code of the Russian Federation and the Regulations on the specifics of the procedure for calculating average wages, approved by Decree of the Government of the Russian Federation of December 24, 2007 No. 922 (hereinafter referred to as the Regulations).

Let us explain the calculation of the amount of compensation for unused vacation paid to a dismissed employee using an example.

Sales Manager V.V. Rychkov was hired by Soley LLC on March 11, 2008, and on May 18, 2009, he was given a written notice of dismissal on July 20, 2009 due to the liquidation of the organization (all procedures provided for by labor legislation were followed). It is necessary to calculate the amount of compensation for unused leave upon dismissal due to V.V. Rychkov for the period of work in the organization. The employee does not have periods of time excluded from the length of service giving the right to leave (Article 121 of the Labor Code of the Russian Federation). The duration of the main vacation in the organization is 28 calendar days. The employee did not go on vacation during the period of work. His average daily earnings were 1,686.75 rubles. Vacation compensation is paid:

• for the first working year (from March 11, 2008 to March 10, 2009) - 28 calendar days;
• second working year (from March 11, 2009 to March 10, 2010) V.V. Rychkov actually worked for 4 months and 10 days. In July, days worked account for less than half the month, so July is not taken into account. This means that for the second working year, four months are included in the calculation period. That is, compensation is paid for 9.32 calendar days (2.33 days × 4 months).

Thus, during his work at Soley LLC, sales manager V.V. Rychkov did not use 37.32 calendar days of vacation (28 days + 9.32 days), which are subject to payment.

The amount of compensation for unused vacation is calculated by multiplying the amount of average daily earnings by the number of unused vacation days and is equal to RUB 62,949.51. (RUB 1,686.75 ? 37.32 days).

According to subclause 2 of clause 1 of Article 238 of the Tax Code of the Russian Federation, compensation for unused vacation is not included in the tax base for the Unified Social Tax and in the base for calculating contributions for compulsory pension insurance (clause 2 of Article 10 of the Federal Law of December 15, 2001 No. 167-FZ). In addition, this payment does not include contributions for compulsory insurance against industrial accidents and occupational diseases. The basis is clause 1 of the List of payments for which insurance contributions to the Social Insurance Fund of the Russian Federation are not calculated6 (hereinafter referred to as the List).

For the purposes of calculating income tax, the compensation in question is taken into account in labor costs on the basis of paragraph 8 of Article 255 of the Tax Code of the Russian Federation. From the amount of accrued compensation for unused vacation, the employer is obliged to calculate and withhold personal income tax (clause 3 of Article 217 of the Tax Code of the Russian Federation).

Severance pay and average earnings for the period of employment

Severance pay is considered payment for the first month of job search (after dismissal). It is paid to all dismissed employees, regardless of whether they took a new job the day after dismissal, a month later, or even later.

Maintaining the average monthly earnings for the period of employment, but not more than two months from the date of dismissal (including severance pay) means payment of average earnings for the second month of the employee’s non-employment. Payment is made to the dismissed employee on the basis of his written application and upon presentation of a work record book, which does not contain a record of employment at a new place of work.

If a former employee gets a new job within the second month after dismissal, the average salary is paid for those days of the second month when he was not employed.

Let’s say an employee was fired due to the liquidation of the organization on May 29, 2009. He was paid severance pay for the first month of employment in the amount of average earnings. This citizen got a new job on July 20, 2009. This means that he has the right to receive average earnings for 13 working days in July 2009. To do this, you need to write an application and submit a copy of your work record, certified for your new place of work.

The organization will pay the average salary for the third month of unemployment to the dismissed employee upon presentation of the original work book and the decision of the employment center. This decision is issued if the citizen registered with the employment center at his place of residence within 14 calendar days from the date of dismissal and was not employed by him. To register at the employment center, you must present a passport, work book, education document, and a certificate of average earnings (salary) for the last three months to determine the amount of unemployment benefits (clause 2 of article 3 of Law No. 1032-1). A certificate of average earnings is filled out by the former employer in the form established by the employment authorities.

A dismissed employee can apply for average earnings at any time, since labor legislation does not establish deadlines for applying. The only limitation is the exclusion of the organization from the Unified State Register of Legal Entities due to liquidation. In this case, it will no longer be possible to receive payment. The deadline for payment of average earnings due to a dismissed employee is also not defined by law. Typically, payment is made on the day the salary is issued or immediately after the application.

To calculate severance pay, average earnings for the period of employment, as well as compensation for early dismissal, the average daily earnings are determined in accordance with Article 139 of the Labor Code of the Russian Federation and the Regulations.

The calculation of average earnings includes all payments provided for by the wage system and applied by the relevant employer, regardless of their sources (Article 139 of the Labor Code of the Russian Federation and clause 2 of the Regulations).

Average earnings for any working mode are calculated based on the actual accrued wages and actual time worked for the 12 calendar months preceding the month of dismissal (calculation period).

A calendar month is considered to be the period from the 1st to the 30th (31st) day of the corresponding month inclusive (in February - 28 or 29 days, respectively). This follows from the provisions of Article 139 of the Labor Code and paragraph 4 of the Regulations.

If the employment contract with an employee is terminated on the last day of the month, then the month of dismissal is included in the calculation period. When dismissal is made on any other day of the month, the calculation period is considered to be 12 calendar months prior to the month in which the employee was dismissed.

Let's use the condition of example 1. Let us recall that in connection with the liquidation of Soley LLC, sales manager V.V. On May 18, 2009, Rychkov was given a written notice of dismissal on July 20, 2009. The organization has a 40-hour, five-day work week. V.V. Rychkov was hired on March 11, 2008 with a salary of 30,000 rubles. The billing period is 12 months preceding the month of dismissal (from July 1, 2008 to June 30, 2009), worked out in full, which amounted to 249 working days. The amount of wages included in the calculation of average earnings is 420,000 rubles. Then the average daily earnings for calculating severance pay are 1,686.75 rubles. (RUB 420,000 ? 249 days).

Severance pay for the period from July 21 to August 20, 2009 (23 working days) amounted to RUB 38,795.25. (RUB 1,686.75 ? 23 days).

During the first month after dismissal (from July 21 to August 20, 2009) V.V. Rychkov did not find a job.

Average earnings for the period of employment from August 21 to September 20, 2009 (21 working days) will be paid to Soley LLC, since V.V. Rychkov also did not get a new job during the second month after his dismissal. In this case, the severance pay paid in the amount of 38,795.25 rubles is counted towards the maintained average earnings for the first month after dismissal. V.V. Rychkov presented the employer with an application and work book without a record of hiring a new job. Average monthly earnings amounted to 35,421.75 rubles. (RUB 1686.75 ? 21 days).

The employer has the right to terminate employment contracts before the expiration of the two-month period allotted for notice of dismissal. In this case, the written consent of each employee is necessary, and the liquidated organization is obliged, in addition to severance pay and average earnings, to pay additional compensation to employees, the amount of which is determined based on their average earnings and the number of days remaining before the expiration of the two-month notice period for dismissal (Article 180 of the Labor Code of the Russian Federation ).

Let's say an employee is fired on the day he receives notice of the upcoming dismissal, then he is paid additional compensation in the amount of average earnings for two months. If, by agreement of the parties, the employment contract is terminated later than the day the employee is notified of dismissal, but before the expiration of the notice period, then the average salary is paid for the working days that remain before the originally planned date of dismissal.

Let's use the condition of example 2. Let's assume that Soley LLC and sales manager V.V. Rychkov agreed on early termination of the employment contract. The employee was fired on July 6, 2009. For a new job V.V. Rychkov got a job on September 14, 2009.

In this case, the severance pay in the amount of average monthly earnings for the period from July 7 to August 6, 2009, that is, for 23 working days, amounted to 38,795.25 rubles (1,686.75 rubles ? 23 days).

Additional compensation (for early dismissal) was paid for the period from July 7 to July 20, 2009, that is, for 10 working days, and is equal to 16,867.5 rubles. (RUB 1,686.75 ? 10 days).

The maintained average earnings from August 7 to September 6, 2009 (for 21 working days) are equal to RUB 35,421.75. (RUB 1686.75 ? 21 days). Payment is made on the basis of a written application from V.V. Rychkov and a work book in which there is no entry about hiring a new job.

Taxation of compensation payments provided for by law

When dismissing employees in connection with the liquidation of the organization, the amount of severance pay, average earnings for the period of employment and compensation for early dismissal in the cases and amounts provided for by labor legislation (Article 178 of the Labor Code of the Russian Federation), the taxpayer has the right to take into account as expenses for wages. The basis is paragraph 9 of Article 255 of the Tax Code of the Russian Federation.

In addition, the specified payments provided for in Article 178 of the Labor Code of the Russian Federation correspond to the characteristics of compensation payments and are not taxed:

• tax on personal income (clause 3 of article 217 of the Tax Code of the Russian Federation);
• unified social tax (subclause 2, clause 1, article 238 of the Tax Code of the Russian Federation);
• contributions for compulsory pension insurance (clause 2 of article 10 of the Federal Law of December 15, 2001 No. 167-FZ);
• insurance premiums against industrial accidents and occupational diseases (clause 1 of the List).

Similar explanations on this issue are contained in letters of the Ministry of Finance of Russia dated March 11, 2009 No. 03-04-06-01/54 and dated April 12, 2006 No. 03-05-02-04/45.

Letter of the law

Payment of amounts due upon dismissal at a later date
According to Article 236 of the Labor Code of the Russian Federation, financial liability is provided for delay in payment of amounts due to an employee, in particular upon dismissal. An employer who has violated the deadlines for issuing the specified amounts to an employee is obliged to pay them, taking into account interest (monetary compensation). The amount of interest (compensation) is not less than 1/300 of the Bank of Russia refinancing rate in effect at that time on amounts not paid on time for each day of delay, starting from the next day after the due date for payment until the day of actual settlement, inclusive. Moreover, the amount of compensation paid for profit tax purposes is not taken into account in expenses (letter of the Ministry of Finance of Russia dated April 17, 2008 No. 03-03-05/38). It is also not subject to unified social tax, since it is not a payment (remuneration) in accordance with labor, civil and copyright contracts, that is, it is not related to the payment of workers. This compensation payment is not recognized as subject to UST taxation, regardless of its size. The basis is paragraph 1 of Article 236 of the Tax Code of the Russian Federation. Insurance premiums to the Pension Fund of the Russian Federation and insurance premiums for industrial accidents and occupational diseases are not charged from these compensation payments (clause 10 of the List). In addition, the calculated amounts of monetary compensation provided for in Article 236 of the Labor Code of the Russian Federation are income exempt from personal income tax on the basis of paragraph 3 of Article 217 of the Tax Code of the Russian Federation

Temporary disability benefits after dismissal due to liquidation

As a general rule, temporary disability benefits are assigned and paid at the insured person’s place of work, but there are exceptions to this rule.

Thus, insured persons have the right to receive temporary disability benefits if the illness or injury occurs within 30 calendar days from the date of termination of work under the employment contract. This is provided for in paragraph 2 of Article 5 of Federal Law No. 255-FZ of December 29, 2006 (hereinafter referred to as Law No. 255-FZ). The reason for dismissal and the duration of the illness do not matter. In this case, the benefit is assigned and paid by the employer at the last place of work (Clause 2, Article 13 of Law No. 255-FZ).

If at the time the insured person applies for temporary disability benefits, the employer has ceased operations, then the payment of benefits is carried out by the territorial body of the Federal Social Insurance Fund of Russia (clause 3 of Article 13 of Law No. 255-FZ). The insured person must submit the following documents to the territorial bodies of the FSS of Russia (clause 4 of article 13 of Law No. 255-FZ):

• certificate of incapacity for work;
• a certificate of income on the basis of which the benefit will be calculated;
• documents confirming insurance experience;
• statement.

Within ten calendar days from the date of submission of all necessary documents, the territorial bodies of the FSS of Russia assign temporary disability benefits (clause 2 of Article 15 of Law No. 255-FZ).

The insured person can receive payments for sick leave from the territorial body of the Federal Social Insurance Fund of Russia that assigned the benefit, or by mail, or it can be transferred to the bank account of this person. The chosen procedure for receiving benefits should be indicated in the application (clause 6, article 13 of Law No. 255-FZ).

Thus, the territorial body of the Federal Social Insurance Fund of Russia is obliged to pay temporary disability benefits to an employee who falls ill within a month after dismissal in connection with the liquidation of the organization no later than ten calendar days from the date of submission of the application and all the documents listed above.

Payment of maternity benefits

Liquidation of an organization does not deprive an employee of the right to receive maternity benefits. This is stated in Article 6 of the Federal Law of May 19, 1995 No. 81-FZ “On state benefits for citizens with children.” The amount of maternity benefits that is due to an employee dismissed due to the liquidation of a company during the 12 months preceding the day she was declared unemployed is established in Article 8 of Federal Law No. 81-FZ of May 19, 1995. Taking into account indexation, this amount from January 1, 2009 is 374.62 rubles. for a full calendar month (Federal Law No. 204-FZ dated November 24, 2008).

To receive benefits, a dismissed pregnant employee must register with the employment service. The benefit is assigned and paid by the social protection authorities at the place of residence. Reason - clause 11 of the Regulations on the appointment and payment of state benefits to citizens with children, approved by Decree of the Government of the Russian Federation of December 30, 2006 No. 865.

Regulated by federal law.

The process of closing any organization involves the dismissal of employees whose rights are protected by the Labor Code of the Russian Federation.

Payments to employees upon liquidation of an enterprise

Every employer is obliged to notify full-time employees in advance about the future associated with the liquidation of the company.

The legislation provides for a period for this procedure - 2 months before termination of the employment contract.

Each employee is given a notice, which they sign in the appropriate form.

After 2 months it is terminated, a corresponding entry is made in the work book and handed over to the employee.

The employer is obliged to issue him a certificate of form 2NDFL about the average monthly salary.

On the last day of work, the company management must make a full settlement with each employee (Article 140 of the Labor Code of the Russian Federation).

Upon liquidation, personnel must be paid:

• all arrears of wages;
• accrued bonuses;
• business trips;
• payments for early termination of an employment contract;
• maternity leave;
• sick leave (if the employee is on sick leave during dismissal, all payments under the temporary disability certificate will have to be made either by the new employer or by the Social Insurance Fund);
• severance pay;
• vacation pay and other payments that the employer is obliged to make in accordance with.

During liquidation, all payments to employees are made at the expense of the employer.

During the process of closing a company, the amount of wages and other payments to employees is included in the repayment reserve.

Payment of wages upon liquidation of an enterprise

Each employee of a company who is dismissed due to its liquidation must receive final pay on the last day of work.

The employer is obliged to pay him wages for each day worked. In this case, the amount of earnings should not be lower than the salary specified in the employment contract.

If during liquidation measures the management violated the rights of full-time employees, they have the legal right to obtain due payments from the company in court.

They can also file a collective complaint with the police inspectorate or write a statement to the prosecutor’s office.

The inspectorate will consider the complaint within a month, after which a decision will be made to conduct an inspection of the organization.

If specialists identify shortcomings, management will be held administratively liable and will be given an order to eliminate all violations.

To file a complaint with the prosecutor's office, the law allows a month, during which an inspection of the company must be carried out.

To go to court, an employee of a liquidated company must draw up a statement of claim, to which must be attached all documents related to the controversial issue.

Compensation payments upon liquidation of an enterprise

Full-time employees of a company who are dismissed due to its liquidation have the right, in addition to wages and severance pay, to receive compensation, the amount of which is specified in the accounting policy.

For example, compensation for unused vacation, which can be received even by employees who have worked in the organization for less than 6 months. Insurance premiums are not withheld from this type of compensation, only income tax.

Employees who combine work and study, or are registered as part-time employees (payments are made at their main place of employment) can also count on compensation.

If the company withheld alimony from the employee, then when calculating the compensation payment, income tax will be withheld from him, as well as the amount specified in the writ of execution.

Any compensation is paid during the period during which the dismissed employee is looking for a new job.

The Labor Code of the Russian Federation (Article 178) provides for cases in which dismissed employees may retain their wages for 3 months from the date of termination of the contract.

To do this, the employee must contact the local employment service within 2 weeks after dismissal upon liquidation of the company.

In this case, one condition must be met - the employee was not employed by this body during this time.

The employment service makes an appropriate decision, on the basis of which he will receive 2 months after dismissal in the amount of his average monthly earnings.

With this document, the former employee of the company addresses the head of the liquidation commission, who acts as the head during all legal procedures.

Based on the decision of the employment service, he will receive payments required by law.

If the employee is unable to find a job within 2 months, the employer will have to make payments for the 3rd month. Subsequent payments will be made by the employment service.

Compensation payments to certain categories of citizens

For residents of the Far North, the Labor Code provides for much more “impressive” conditions.

The period for registering with the employment service has been increased to a month for them. In this case, the employer will be required to make payments for 3 months.

If the body is unable to employ a citizen within 3 months, the employer will have to make compensation payments to him within 6 months from the date of termination of the employment contract.

If employees are fired during the liquidation of an organization, they are not entitled to any payments after termination of employment contracts, since by law they are not recognized as unemployed.

Some employers try by any means to evade the obligation to pay compensation to dismissed employees.

They offer them, by agreement of the parties, to terminate their employment contracts or resign of their own free will. If employees agree, they will automatically lose the right to compensation payments due upon liquidation.

Severance pay upon liquidation of an enterprise

In accordance with the provisions of Article 178 of the Labor Code of the Russian Federation, every employee has the right to severance pay upon liquidation of an enterprise.

Severance pay does not fall under the category of compensation payments or wages.

The employer is obliged to make such a payment upon liquidation of the enterprise on the day of termination of the employment contract.

If an employment contract lasting up to 2 months was concluded between the employee and the company, upon dismissal due to liquidation, the employee cannot claim benefits.

If the contract with a seasonal employee is terminated, the amount of his severance pay will be equal to two weeks' earnings.

Severance pay is a type of monetary assistance from the employer, which is an addition to the basic salary.

Such payments can be made both at the expense of the liquidated company and from the budget.

If an employee quits due to the liquidation of the organization, then, in accordance with the regulations of the Labor Code, he must be paid severance pay in the amount of the average monthly salary.

In some cases, the amount of such payments may be reduced.

If alimony was withheld from the employee, the amount under the writ of execution can be deducted from the severance pay only in favor of his minor children.

Calculation of severance pay

To calculate severance pay, the employer must use the following analytical data:

• hours worked (actual);
• compensation for unused vacation (in monetary equivalent);
• average earnings for the 2 months following the date of termination of the employment contract.

Example. Company employee Ivanov I.I. worked for a full month. His salary, according to the staffing table, is 15,000 rubles. The average monthly salary is 18,000 rubles.

Before his dismissal, this employee managed to take his annual leave, for which he was paid in full. In this case, the employer does not owe him any compensation.

Calculation of severance pay:

15,000 + 18,000 + 18,000 = 51,000 rubles.

Calculation of average monthly salary

The following payments are taken into account: financial assistance, bonuses, vacation pay, basic wages and other payments provided for by the company’s accounting policy.

The actual time worked is determined (every working day is taken into account).

For the calculation, days of annual paid leave, days of temporary disability (sick leave), and days of vacation taken at one’s own expense are not taken into account.

The average monthly earnings for a specific period are calculated.

Example. Ivanov I.I. Over the course of the year, I received a salary in the amount of 450,000 rubles. In fact, he worked 235 days. Average daily earnings will be calculated as follows:

450,000 / 235 = 1,914.89 rubles.

In January Ivanov I.I. worked 15 days. Average monthly earnings will be calculated as follows:

1,914.89 x 15 = 28,723.35 rubles.

Payment of maternity benefits upon liquidation of an enterprise

When an enterprise is liquidated, maternity pay must be paid in full compliance with the regulations of the Labor Code of the Russian Federation, since this category of workers is protected at the legislative level.

When applying for maternity leave before the liquidation of the enterprise, problems with the calculation and payment of the corresponding benefits do not arise.

If a woman takes maternity leave within the first month after leaving a liquidated enterprise, the head of the liquidation commission will most likely refuse to accrue and pay her benefits.

In this case, she will have to contact the local Social Insurance Fund with a package of required documents, including:

• certificate of temporary incapacity for work (issued by the state medical institution where the woman is being observed during pregnancy);
• a statement written in your own hand;
• documents confirming work experience;
• certificate of receipt at your last place of work.

Specialists from the local FSS authority will study the submitted documents. If there are no inaccuracies in the certificates, after 10 working days the woman will be assigned the benefit due by law.

She can receive regular payments in person, or she can transfer them to a card or bank account. She can also receive funds from the budget in the form of a postal order.

If a woman managed to take maternity leave before the liquidation of the organization in which she was officially employed, she has the right to all payments that the employer will make to the rest of the dismissed employees.

The maternity leaver will be paid benefits for a year after the liquidation of the company. To qualify for such payments, she must register with the local employment service.

After this, the maternity leaver will have to contact the social service at her place of residence, where she will submit:

• certificate of temporary incapacity for work;
• application of the established form;
• income certificate;
• extract from the work book;
• certificate issued by the employment service.

After all the documents are completed, the maternity benefit will be paid by the social protection authorities. This procedure is regulated by the Labor Code of the Russian Federation.

Despite the fact that the liquidation of a legal entity means significant financial losses for its founder, the law still obliges the business owner to compensate the loss of employment to employees. They are considered the most vulnerable in this situation, and therefore they are entitled to compensation during the liquidation of the enterprise, designed to help hold out until new employment.

Who is paid compensation upon liquidation of an enterprise?

If the company is subject to liquidation, the company's employees are given 2 months to find a new job, during which they are paid an average salary.

Employee compensation upon liquidation of a company is severance pay. A similar payment is due to employees dismissed due to staff reduction, but in the first case, the employer can dismiss all personnel without exception, but it is prohibited by law to lay off certain categories of workers:

• pregnant women at any stage of pregnancy (even if the employer did not know about the pregnancy);
• mothers on maternity leave;
• single mothers and single fathers;
• minor employees (without the approval of the commission on minors);
• employees who are on sick leave, main or additional leave.

When it comes to the complete liquidation of an organization, the categories of citizens listed above will be dismissed on a general basis, since the workplace itself no longer exists. Despite the employer's right to relieve employees from performing work duties, he must provide notice of the closure of the company 60 days before its actual liquidation. Also, the owner of the company is obliged to notify the Trade Union organization and the Employment Center about the dismissal of employees.

In what order is compensation paid upon liquidation of an enterprise?

During the liquidation of the enterprise, the manager can terminate the relationship with the employee before the expiration of the two-month period, but all due money will have to be paid, as if the employee had continued to work for another 2 months.

If the head of an organization is forced to dismiss workers due to the closure of his enterprise, he must pay, in addition to standard payments upon calculation, severance pay in the amount of the average salary, which counts towards the first month after the vacancy of the workplace. It also happens that the dismissed employee spends the entire second month in a vain search for a new job, but cannot find a suitable vacancy - then severance pay is paid for the second month as well.

Labor legislation goes further - it obliges the former boss to pay severance pay for the third month after dismissal, but only if the Employment Service confirms the fact that it was not possible to find a suitable job for the dismissed employee.

A similar payment for the director of a liquidated enterprise significantly exceeds the amount of standard severance pay - he is paid severance pay in the amount of 3 average salaries or even more if the amount of compensation was specified in the employment contract or in the internal regulations of the company.

Often, everything does not happen so smoothly - employees receive one severance pay, after which they apply for a second payment, but the company turns out to be already liquidated, and there is no one to transfer the money to. For such cases, the legislation provides for the payment of three severance pay at once on the day of dismissal, but such an order must be fixed in the collective agreement or dismissal order, otherwise you cannot count on such an indulgence.

How is compensation calculated upon liquidation of an enterprise?

First of all, the accountant calculates the average salary. For this purpose, all payments listed below are taken into account:

• wage;
• surcharges for harmful and dangerous production conditions, for night shifts;
• salary increments for length of service and other merits;
• additional payments according to the coefficients for salaries of employees of enterprises of the Far North and equivalent territories;
• bonuses, bonuses and other regular cash incentives;
• payments for sick leave and other periods of incapacity;
• compensation for lost opportunity to rest during annual paid leave;
• compensation for forced downtime (2/3 of wages).

All payments that are not subject to personal income tax are not included in the calculation of average earnings. These include material support, an anniversary gift, etc.

All of the above monetary deductions are added together, and the resulting amount is divided by 12 months - the average salary per month of work is obtained. Compensation will be paid in this amount. If you have to calculate the average daily income, the result will need to be divided by 29.3 - this is the average number of days in a month.

Compensation upon liquidation of an enterprise for women on maternity leave

Women who are on maternity leave at the time of liquidation of the company must also be notified of dismissal 2 months in advance. You can report this in person or via registered mail. This is the only way to part with an employee.

Since a woman is not paid a salary during maternity leave, to calculate the amount of severance pay, the income that the woman had before maternity leave, including the last 140 days, is taken. A one-time benefit for the birth of a child and a one-time benefit for early registration in gynecology are not taken into account.

Common mistakes

Error: An employee on maternity leave was dismissed in absentia due to the liquidation of the company without notification 2 months before the termination of the employment relationship.

If we turn to Article 81 of the Labor Code of the Russian Federation, we learn that the liquidation of an enterprise entails the termination of the labor relationship between the employee and the employer. In this case, job loss threatens both existing employees and those on regular or maternity leave, and even on sick leave. The thing is that during liquidation, an enterprise simply ceases to exist, and therefore there is nowhere to work.

What rights do employees have in such a situation? What guarantees do they have of receiving funds in connection with the closure of the organization and downsizing? Are there any additional payments, benefits or compensation in this case in 2019? How is unused vacation calculated? What rights and guarantees do pregnant women and women caring for children have? In connection with the reduction, workers have many questions. Many people panic, not knowing what to do and what to do next. What if the layoff went through and the severance pay was not paid? And if they paid, it was not in full? And what is it, the full amount for severance pay and final payment? What if there was a dismissal, but the organization was not liquidated? You should not be discouraged and worry, even if an ordinary person cannot know all the legal nuances.

Our website employs experienced lawyers who provide free consultations online.

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When terminating employment contracts in the event of the closure of its organization in 2019, the employer must comply with labor laws and all rights of employees, making all payments due to them, including severance pay and compensation. At the same time, all documentation must be prepared accordingly. After all, correctly executed documents and an entry in the work book are a guarantee for people who have been laid off when registering with the labor exchange and retaining full earnings for a certain time. All payments due in connection with the reduction due to the liquidation of the enterprise are made in order. This line is established by law, and no one has the right to violate it. When the owners decide to cease the activities of their enterprise, a special commission is created. Management of all issues of the organization is transferred to her hands, including settlements with employees. The enterprise will be considered non-existent after the corresponding mark in the Unified State Register of Legal Entities.

If management's decision has changed and they have decided to leave their organization, so to speak, "afloat", in 2019, as at any other time, employees have the right to be fully reinstated to their jobs and positions, maintaining the old conditions in employment contracts and length of service

If the employer does not agree with this position, this procedure is carried out in court. The priority established for settlements under terminated contracts with employees is provided in order to avoid conflict situations with a certain contingent of former employees.

Notifying interested parties about the liquidation of the enterprise

Information that the organization will cease its activities must be disseminated in the following order:

• labor exchange;
• trade union;
• employees of the organization.

Labor legislation, taking into account changes by 2019, indicates that two months before taking actions to terminate the activities of an enterprise, its owners must notify the employment authorities about the number of their employees, their positions and qualifications, as well as the amount of their payment. labor.

In case of mass layoffs of people, this notification must be received by the labor exchange three months before the liquidation of the enterprise. If this rule of law is violated, the employer may be held liable under the Code of Administrative Offenses and will be punished with a fairly large fine.

The trade union must take part in the process of terminating contractual obligations between employees and the owners of the liquidating organization. They must also be notified three months in advance. All notifications in this case are drawn up in any form, at the discretion of the owners. They can be the same for both the labor exchange and trade unions. Notification: Employees who work at the enterprise on an ongoing basis are notified of upcoming changes at least 60 days in advance. Hired employees whose contracts are concluded for only two months have the right to be notified three days in advance. People who work on a seasonal schedule are notified a week in advance, due to the fact that they are not at their jobs year-round. Termination of employment relationships is possible in advance with the consent of employees, taking into account the payment of established compensation. To guarantee compliance with the law, the written notification to employees includes the date of familiarization with it and the personal signature of each person.

Solving financial issues in connection with termination of work

In 2019, legislation includes the concept of severance pay as an absolute settlement with subordinates, taking into account all compensation. This calculation must include all of the following payments:

• calculation of payment for the performance of professional duties (a period is taken for which wages have not yet been accrued and paid);
• compensation for delayed wages, if any;
• compensation for vacation days that the employee has not yet had time to use;
• additional payments for the fact that the contractual employment relationship is subject to termination (average total monthly income);
• compensation for the third month, upon presentation of a certificate from the labor exchange about registration and failure to provide the former subordinate with work from a government agency (average total monthly income);
• severance pay for part-time workers (average total monthly income);
• in the first two months, those dismissed are paid compensation for employment (total monthly income on average, taking into account the fact that severance pay was paid).

Hired employees, after termination of contractual employment relations due to liquidation in 2019, are not entitled to any additional payments, calculations, severance pay or compensation (provided that the hiring period does not exceed two months). Seasonal workers have the right to receive payment. Payments in their case will be equal to the average salary for two weeks.

Payment for the first months after dismissal (time to look for a job)

What is severance pay? This is payment of the amount of average earnings in the first thirty days after dismissal, which occurred in connection with the liquidation of the enterprise. During the second month, the dismissed person is also entitled to payments if he was unable to find another job (also in the amount of the average salary). To do this, you will need to write an application addressed to your former employer and provide your work book as evidence of non-employment. A settlement with a former employee in the amount of the same amount is due for the third month if he is on the stock exchange and was not provided with job offers corresponding to his old position and qualifications. To receive this payment, you must also bring your work record book and a certificate from the employment authorities.

In order to become officially unemployed, you must bring the following package of documents to the labor exchange:

• identification card (in common parlance a passport);
• diploma;
• document on work activity;
• a certificate of money earned for the last quarter.

The dismissed person can come for the above payments within the time limits established by law, but until the enterprise is excluded from the register of legal entities. persons Payment must be made on the day of application, the next day of application or on payday. In general, at any time by mutual agreement.

Period for calculating average earnings

When accruing funds for full settlement with subordinates, the employer must focus on the Labor Code of the Russian Federation and the Regulations on the calculation of earned money for the month as a whole according to Government Resolution No. 922, adopted in 2007.

Regardless of what work mode is established by the internal labor regulations, the average salary is calculated with the recalculation of all income for the last year worked (according to calendar time). A month is considered calendar from its beginning to its end (the first – last day of the month with all weekends and holidays). If the last day of work coincides with the last day of the calendar month, it must be included in the pay period. In other cases, the last month out of 12 calculated times will be the month before the loss of work. There are special formulas for calculating severance pay and average earnings. First, let's describe their components:

• SZvd – average salary for one calendar day;
• Zar – salary for the days on which the employee performed his job duties;
• Days – days on which the employee performed his job duties;
• Dnr - days on which the employee performed his job duties subject to payment.

In connection with the above data, the average salary and severance pay will be calculated using the formulas:

• SZvd = Zar/Dn;
• allowance = Dnr * SZvd.

When calculating the amount of the final payment to the employee, only working days are subject to payment. Weekends and holidays are not taken into account. It is worth keeping in mind that these payments should not be subject to certain types of taxes.

The order of priority for payments and registration in the labor force

In order to avoid conflicts, labor legislation establishes a certain procedure for settlements of a dissolving enterprise for its financial obligations:

• compensation to citizens for damage caused during the work of the organization;
• financial settlements with all subordinates working in the organization on any contractual terms;
• payment of loan obligations provided that the property is pledged;
• repayment of debts on mandatory payments to budgetary and extra-budgetary funds;
• payment of loan obligations to other creditors.

If financial institutions (banks, credit organizations, etc.) are subject to liquidation, financial settlements with the population (depositors, payroll workers, etc.) and insurance payment organizations will come first. If the liquidation enterprise does not have enough property to fulfill its obligations, it is distributed among all interested parties in direct proportion to each, depending on the amount of debt.

A separate discussion is the registration of a work book during the liquidation of an organization. If an article is indicated there at his own request and the employee signs for it, then he automatically loses all payments, compensation and benefits due to him. The labor report must contain a reference to Article 81 of the Labor Code of the Russian Federation, which clearly states that the dismissal was made in connection with the termination of its activities by the enterprise. If you still have any questions on this topic, please contact our website consultants. The service is free.