For expectant mother 

Insurance premiums for gifts to employees. Taxation of New Year gifts for employees' children

Then, when drawing up a donation agreement, insurance contributions from NS and PZ are not charged on the value of gifts, since in this case gifts are not issued within the framework of an employment relationship with an employee, but within the framework of a civil law contract concluded with him, which does not provide for the payment of insurance premiums from NS and PZ.

2. Award at the end of the year

In accordance with part 1 of Art. 22 and Art. 191 of the Labor Code of the Russian Federation, the employer has the right to encourage employees who conscientiously perform their labor duties (to declare gratitude, issue an award, award a valuable gift, a certificate of honor, present them for the title of the best in their profession).

According to Art. 129 and art. 135 of the Labor Code of the Russian Federation, bonuses, additional payments and allowances of a stimulating nature, as well as other incentive payments, are an integral part of the salary, which is established for the employee by an employment contract in accordance with the current remuneration systems. Remuneration systems are established by collective agreements, agreements, local regulations in accordance with labor legislation and other regulatory legal acts containing labor law norms.

Direct payment of the bonus is carried out on the basis of an order or order of the head of the organization, since it is the order (order) that confirms the achievement of bonus indicators in a specific period (month, quarter, year). The order is drawn up in the form N T-11 (T-11a), approved by the decree of the State Statistics Committee of Russia dated 05.01.2004 N 1.

2.1. Corporate income tax

In accordance with Art. 252 of the Tax Code of the Russian Federation reduces the income received by the amount of expenses incurred (except for the expenses specified in Article 270 of the Tax Code of the Russian Federation). At the same time, these expenses must be economically justified, documented and directed to income generation.

According to Art. 255 of the Tax Code of the Russian Federation, the taxpayer's expenses for labor remuneration include any charges to employees in cash and (or) in-kind, incentive charges and allowances, compensation charges related to the mode of work or working conditions, bonuses and one-time incentive charges, costs associated with the content of these employees stipulated by the norms of the legislation of the Russian Federation, labor agreements (contracts) and (or) collective agreements.

In this case, paragraph 2 of Art. 255 of the Tax Code of the Russian Federation stipulates that incentive charges, including bonuses for production results, premiums to tariff rates and salaries for professional skill, high achievements in labor and other similar indicators, are related to labor costs.

Considering that in the situation under consideration, the payment of bonuses at the end of the year is provided for by the labor and (or) collective agreement, such expenses on the basis of Art. 255 of the Tax Code of the Russian Federation can be taken into account when determining the tax base for income tax. Similar clarifications are contained in the letters of the Ministry of Finance of Russia dated 26.02.2010 N 03-03-06 / 1/92, dated 10.07.2009 N 03-03-06 / 1/457, dated 14.05.2009 N 03-03-05 / 88, from 03.19.2007 N 03-03-06 / 1/158, from 06.03.2007 N 03-03-06 / 1/151, Federal Tax Service of Russia in Moscow from 19.12.2008 N 19-12 / 118853.

2.2. Accounting

In accounting, the organization's expenses for the payment of bonuses to employees are expenses for ordinary activities and are included in the cost price (clauses 5, 7, 8 and 9 of PBU 10/99 "Organization's expenses").

Professional accountant Molchanov Valery

Quality control of the response:
Reviewer of the Legal Consulting Service GARANT
auditor Melnikova Elena

The material was prepared on the basis of an individual written consultation provided within the framework of the Legal Consulting service.

The imposition of insurance premiums and personal income tax on gifts is controversial. It all depends on the reason for the presentation of a valuable gift to the employee.

Personal income tax from gifts

A valuable gift presented to an employee is his income in kind and is subject to personal income tax. In this case, the tax on the gift must be paid only on the amount of value exceeding 4000 rubles ().

If we adhere to the position that a valuable gift is a stimulating payment (that is, to consider it as payment in kind), a controversial point arises again. In our opinion, in this case, the failure to withhold personal income tax from the entire amount (including 4000 rubles) is unlawful.

As regards the taxation of gifts with insurance premiums in the Pension Fund of the Russian Federation, the FSS and the FFOMS of Russia, the situation is ambiguous. As a general rule, the object of taxation is recognized as payments and other remuneration accrued by companies in favor of individuals within the framework of labor relations and civil law contracts, the subject of which is the performance of work, the provision of services (Federal Law No. 212-FZ of 24.07.2009 (hereinafter - the Law No. 212-FZ)). Accordingly, the amount of income from a valuable gift is fully subject to insurance premiums, including contributions for injuries.

Insurance premiums

As for insurance premiums for gifts presented in honor of the holiday, according to the position of the Federal Antimonopoly Service of the North-West and West Siberian Districts (,), their value is not taken into account when calculating the base for insurance premiums. The judges indicated that such a transfer is carried out on the basis of civil transactions, the subject of which is the transfer of ownership. It is not directly related to the performance of labor duties by employees, is not an incentive or compensatory payment, and has a one-time and optional character. The cost of gifts is determined regardless of the length of service of the employee and the results of his work.

Thus, when presenting a valuable gift to an employee in honor of the holiday, the company must draw up a donation agreement in writing. In this case, when the gift is transferred, she does not have an object of taxation with insurance premiums (;,).

Note that, according to civil law (), the contract for donation of movable property must be made in writing if the value of the gift exceeds 3,000 rubles. However, there is no indication of this limitation, so the value of the gift in this case does not matter.

As a written donation agreement, you can use documents that reflect the will of both parties (see sample).

A sample of a donation agreement for the delivery of a valuable gift to an employee in honor of a holiday

We bring to your attention a table that briefly describes how to take into account income tax, VAT, personal income tax and insurance premiums on gifts.

Accounting for gifts

Here is an example of accounting for the cost of valuable gifts for employees.

EXAMPLE

In March 2016, the company, on the basis of the provision on bonuses (the possibility of paying bonuses in accordance with the provision on bonuses is provided for by labor contracts) presented the manager Mironova M.A. with a valuable gift - a multicooker for success in work, in particular, for the conclusion of a number of large contracts. Gift cost - 4720 rubles. (including VAT - 720 rubles). In addition, in July Mironova MA celebrates her birthday. In honor of this event, the company presented her with a vase worth 1180 rubles. (including VAT - 180 rubles).

In March 2016, the accountant will make the following entries:

DEBIT 41 CREDIT 60 - 4720 rubles. - the multicooker purchased from the supplier was capitalized. VAT is included in the cost of goods ( );

DEBIT 73 CREDIT 41 - 4720 rubles. - presented with a gift for labor achievements;

DEBIT 26 CREDIT 73 - 4720 rubles. - the cost of a gift for labor achievements is taken into account in expenses;

DEBIT 70 CREDIT 68 subaccount "personal income tax" - 613.6 rubles. (4,720 rubles x 13%) - personal income tax withheld from a gift (when paying salaries to an employee);

DEBIT 26 CREDIT 69 - 1425.44 rubles. (RUB 4,720 x 30.2%) - insurance premiums were charged to the Pension Fund of the Russian Federation, FSS, FFOMS of Russia, as well as for "injuries" (0.2%);

DEBIT 41 CREDIT 60 - 1000 rubles. (1180 rubles - 180 rubles) - the vase purchased from the supplier was capitalized;

DEBIT 19 CREDIT 60 - 180 rubles. - VAT included on the purchase of a vase;

DEBIT 68 subaccount "VAT" CREDIT 19 - 180 rubles. - VAT is accepted for deduction;

DEBIT 91 subaccount "Expenses" CREDIT 41 - 1000 rubles. - a gift was presented to the employee for his birthday;

DEBIT 91 sub-account "Expenses" CREDIT 68 sub-account "VAT" - 180 rubles. (1000 rubles x 18%) - VAT charged on the cost of a birthday present.

Since the expenses for a birthday present for an employee do not relate to the production activities of the company and, accordingly, are economically unjustified, the value of the gift is not reflected in tax accounting, and is written off in accounting as other expenses. As a result, there is a permanent difference between tax and accounting.

DEBIT 99 CREDIT 68 subaccount "Income tax" - 200 rubles. (1000 rubles x 20%) - the amount of PNO is reflected at the cost of a birthday present.

Elvira Kanbekova , senior accountant at Acsour

" № 12/2016

Is it necessary to withhold personal income tax from the income of employees whose children were presented with gifts? Does the object of taxation with insurance premiums arise? What documents need to be drawn up? How is the purchase and issuance of children's New Year's gifts reflected in the accounting records?

Giving New Year's gifts to employees' children is a good tradition that has developed in many institutions. What funds are used to purchase such gifts and can they be taken into account when calculating income tax? Is it necessary to withhold personal income tax from the income of employees whose children were presented with gifts? Does the object of taxation with insurance premiums arise? What documents do donors need to complete? It is with such questions that accountants of public sector institutions face immediately after the holidays.

From the editor:

On New Year's Eve, the institution can give gifts not only to the children of employees, but also directly to the employees themselves. We wrote in detail about the nuances of giving gifts and payment of material assistance to employees of the institution in No. 6, 2016.

We buy gifts.

To begin with, institutions are rarely given the opportunity to purchase gifts from budgetary funds.

Budgetary and autonomous institutions are in a more favorable situation, which can receive:

  • subsidies (for the fulfillment of state (municipal) assignments, for other purposes, etc.) from the corresponding budget of the budgetary system of the Russian Federation (Article 78.1 of the Budget Code of the Russian Federation);
  • income from off-budget activities, which subsequently go to their independent disposal (Article 298 of the Civil Code of the Russian Federation).

It is the income from extra-budgetary activities that is the main source of funding for the cost of purchasing New Year's gifts for employees' children.

Please note: The cost of purchasing gifts should be reflected in the plan of financial and economic activities.

As for state institutions, the purchase of New Year's gifts at the expense of budget funds is allowed only if such expenses are provided for by the budget estimate, with the permission of the superior chief administrator (manager) of budget funds.

Note:

On the basis of paragraph 3 of Art. 161 of the Budget Code of the Russian Federation, state institutions do not have the right to dispose of income received from their income-generating activities, since they are transferred to the corresponding budget of the budgetary system of the Russian Federation. For them, budgetary funds are the only source of financing, and if the costs of purchasing New Year's gifts are not provided for in the budget estimate, then they cannot be made.

The purchase of gifts for the children of employees must be formalized with supporting documents. For these purposes, an order (order) of the head of the institution is issued, which indicates:

  • persons responsible for the purchase and distribution of gifts;
  • the approximate cost of one gift;
  • sources of financial support for expenses;
  • the timing of the issuance of gifts;
  • a list of employees and their children who will receive gifts. Such a list can be drawn up as an attachment to the order (instruction).

The receipt of gifts at the institution must be confirmed by primary accounting documents: invoices (of the seller), cash receipts, sales receipts (if paid in cash), as well as other documents confirming the fact of the purchase of gifts.

How to arrange the transfer of children's gifts?

The transfer of New Year's gifts to the children of the employees of the institution is regulated by Ch. 32 "Donation" of the Civil Code of the Russian Federation. According to paragraph 1 of Art. 572 under a donation agreement, one party (donor) transfers or undertakes to transfer to the other party (donee) a thing in ownership or a property right (claim) to himself or to a third party, or releases or undertakes to release her from property obligations to herself or a third party.

The institution may conclude such an agreement orally.

The written conclusion of the contract is necessary only in the cases provided for in Art. 574 of the Civil Code of the Russian Federation.

Execution of an agreement in writing is required:

    If the value of a gift from a legal entity exceeds 3,000 rubles.

    If the contract contains a promise of donation in the future.

    If the object of donation is real estate.

The distribution of gifts should be accompanied by an appropriate statement, the form of which is arbitrary and developed by the institution independently.

Recall that any form, including a statement for the issuance of children's gifts, must contain the mandatory details of the primary registration document:

  • Title of the document;
  • the date of its compilation;
  • the name of the economic entity that compiled the document;
  • the content of the fact of economic life;
  • the value of the natural and (or) monetary measurement of the fact of economic life, indicating the units of measurement;
  • the name of the position of the person who made the transaction, the operation and who is responsible for its registration, or the name of the position of the person responsible for the registration of the event;
  • signatures of persons indicating their surnames and initials or other details necessary to identify these persons.

For your information:

Requirements for the "primary" are established by Part 2 of Art. 9 of the Federal Law of 06.12.2011 No. 402-FZ "On Accounting", as well as clause 7 of the Instructions for the application of the Unified Chart of Accounts for accounting for state authorities (state bodies), local authorities, governing bodies of state extra-budgetary funds, state academies of sciences, state (municipal) institutions, approved by Order of the Ministry of Finance of the Russian Federation dated 01.12.2010 No. 157n (hereinafter - Instruction No. 157n).

Do I need to withhold personal income tax from the cost of a child's gift?

As a general rule, when determining the tax base for personal income tax, all income of the taxpayer, received by him both in cash and in kind, is taken into account (clause 1 of article 210 of the Tax Code of the Russian Federation). In this case, the tax base is the specified gifts. The cost of such gifts includes the corresponding amount of VAT (clause 1 of article 211 of the Tax Code of the Russian Federation).

Usually, the cost of children's gifts given in budgetary institutions does not exceed 500 - 700 rubles, therefore, the norm of clause 28 of Art. 217 of the Tax Code of the Russian Federation. This paragraph provides: in a situation where the value of the gift is less than 4,000 rubles. (taking into account the gifts previously given to the employee during the year), taxable income does not arise for the taxpayer.

Note:

If the cost of gifts per employee per year turns out to be more than 4,000 rubles, personal income tax must be withheld from the excess amount.

Is it possible to take into account the cost of children's gifts when calculating income tax?

According to paragraph 1 of Art. 252 of the Tax Code of the Russian Federation, institutions that are payers of income tax have the right to reduce the income received by the amount of expenses incurred. The exception is the costs specified in Art. 270 of the Tax Code of the Russian Federation. Clause 16 of this article stipulates that the value of the property transferred free of charge and the costs associated with such transfer are not taken into account when determining the tax base. Since children's gifts are property donated, it is impossible to take into account the cost of purchasing them when calculating income tax.

Does the transfer of children's gifts become subject to VAT?

Taking into account the requirements of Art. 146 of the Tax Code of the Russian Federation, the transfer by the institution of gifts to the children of employees is recognized as the sale of goods free of charge, which is subject to VAT. The date of determination of the tax base for VAT in case of gratuitous transfer of gifts will be the date of their delivery.

In this situation:

    the taxable base is determined as the market value of the gift (purchase value) excluding VAT (clause 2 of article 154 of the Tax Code of the Russian Federation);

    the amount of VAT presented by the seller of gifts may be accepted for deduction in accordance with the generally established procedure on the basis of an invoice (subparagraph 1 of paragraph 2 of article 171, paragraph 1 of article 172 of the Tax Code of the Russian Federation).

On the issue of drawing up invoices when transferring gifts to employees and their children, the Ministry of Finance provided clarifications in the Letter dated 02/08/2016 No. 03-07-09 / 6171: since individuals are not VAT payers and, accordingly, do not accept this tax for deduction, when gratuitous sale of goods to individuals (employees and their children) invoices for the specified operations to each individual need not be issued. In this case, in order to reflect these transactions in the sales ledger, you should draw up an accounting statement-calculation or a consolidated document containing summary (summary) information on the named operations.

If an invoice is drawn up in the above situation for all transactions for the gratuitous sale of gifts to individuals, it can be issued in one copy to account for transactions by the seller based on the results of the tax period.

In such an invoice, in lines 6 "Buyer", 6a "Address", 6b "INN / KPP of the buyer" dashes are put (Section II of Appendix 1 to the Decree of the Government of the Russian Federation of December 26, 2011 No. 1137 "On Forms and Rules for Filling (maintaining ) documents used in calculating value added tax ").

For your information:

It is possible to deduct input VAT regardless of whether the cost of gifts is taken into account when calculating income tax. The fact is that the criteria for the justification of expenses established by Art. 252 of the Tax Code of the Russian Federation, cannot serve as criteria for the validity of VAT deductions (Resolutions of the FAS MO dated February 22, 2012 No. А41-23656 / 11, FAS PO dated 05.05.2009 No. A65-16388 / 08).

At one time, there was an ambiguous arbitration practice on the issue of paying VAT on the cost of children's New Year's gifts.

Thus, in Resolution No. A26-12427 / 2009 of 13.09.2010, FAS SZO rejected the inspectorate's argument about the obligation to include the cost of New Year's gifts for employees' children in the VAT tax base. He pointed out that the transfer of children's gifts is conditioned by the existence of an employment relationship between the organization and the employees and refers to the employee reward system. Consequently, as a result of such a transfer, there is no object of VAT taxation.

However, in the Decree of June 25, 2013 No. 1001/13 on case No. A40-29743 / 12-140-143, the Presidium of the Supreme Arbitration Court recognized as correct the conclusion of the lower courts that transactions for the gratuitous transfer of children's New Year's gifts to employees should be taken into account when determining the tax base for VAT.

For your information:

An institution has the right to be exempted from the duties of a taxpayer related to the calculation and payment of VAT, if for three previous consecutive calendar months the amount of proceeds from the sale of goods (works, services) of this institution, excluding tax, did not exceed 2 million rubles in aggregate. (Clause 1, Article 145 of the Tax Code of the Russian Federation).

Do I need to accrue on the cost of children's gifts?

The object of taxation of insurance contributions for compulsory social insurance in case of temporary disability and in connection with maternity, as well as for compulsory social insurance against industrial accidents and occupational diseases for payers of insurance contributions are, in particular, payments and other remuneration accrued by them in favor of individuals within the framework of labor relations and civil law contracts, the subject of which is the performance of work, the provision of services (part 1 of article 7 of the Federal Law of July 24, 2009 No. 212-FZ, clause 1 of Article 20.1 of the Federal Law of July 24, 1998 No. 125-FZ).

For your information:

A similar norm is established by paragraphs. 1 p. 1 of Art. 420 of the Tax Code of the Russian Federation, which determines the object of taxation with insurance premiums and the provisions of which will apply from 01.01.2017.

Presenting New Year gifts to the children of employees by the institution is a gratuitous transfer of ownership of them and is not considered employee compensation. In addition, gifts are purchased for children who are not in labor (civil) relations with the institution and are not recognized as insured persons. Also, the receipt of gifts is not related to the performance of employees' work duties, is not an incentive or compensation payment, has a one-time and optional nature, the value of gifts is determined regardless of the length of service of the employee and the results of his work. Consequently, the value of the children's New Year gifts given by the employer to employees should not be taken into account when calculating the base for insurance premiums.

For your information:

According to paragraph 4 of Art. 420 of the Tax Code of the Russian Federation are not recognized as an object of taxation with insurance premiums, payments and other remuneration within the framework of civil contracts, the subject of which, in particular, is the transfer of ownership or other property rights to property.

The position of the controllers on this issue is presented in the letters of the Ministry of Labor of the Russian Federation dated September 22, 2015 No. 17-3 / B-473, the Ministry of Health and Social Development of the Russian Federation dated May 19, 2010 No. 1239-19.

The arbitrators are also of the opinion that the value of gifts is not included in the base taxed with insurance premiums (decisions of the AS SKO dated 06.08.2015 No. F08-4089 / 2015 in case No. A32-27379 / 2014, FAS VSO dated 11.12.2012 No. A33-3507 / 2012 , dated 23.05.2012 No. A33-15492 / 2011).

We reflect the purchase and issuance of children's New Year's gifts in accounting.

The costs of paying for the contract, the subject of which is the purchase of gift and souvenir products not intended for further resale, are attributed to article 290 "Other expenses" of KOSGU (Instructions No. 65n, Letter of the Ministry of Finance of the Russian Federation of 12.02.2016 No. 02-05-10 / 7682) ...

During the entire period that gifts are in the institution, they are accounted for on the off-balance sheet account "Awards, prizes, cups and valuable gifts, souvenirs" at the cost of their acquisition (clause 345 of Instruction No. 157n).

Analytical accounting for the off-balance sheet account is kept in the card for quantitative-total accounting of material assets in the context of materially responsible persons, storage places, for each item of property (clause 346 of Instruction No. 157n).

So, the expenses incurred associated with the purchase of gifts are reflected in the accounting as follows:

Institution type

Debit

Credit

State institution (Instruction No. 162n *)

Budgetary institution (Instruction No. 174n **)

Autonomous institution (Instruction No. 183n ***)

* Instructions for the use of the Chart of Accounts for budgetary accounting, approved by Order of the Ministry of Finance of the Russian Federation dated 06.12.2010 No. 162n.

** Instructions for the use of the Chart of Accounts for accounting of budgetary institutions, approved by Order of the Ministry of Finance of the Russian Federation of December 16, 2010 No. 174n.

*** Instructions for the use of the Chart of accounts for accounting of autonomous institutions, approved by Order of the Ministry of Finance of the Russian Federation of 23.12.2010 No. 183n.

Writing off children's gifts from off-balance sheet accounting when they are transferred to employees is carried out on the basis of documents confirming the fact of donation. As mentioned above, such a document is, in particular, the statement of the issuance of gifts.

In accounting, the following entries are made:

State institution

State-financed organization

Autonomous institution

New Year's gifts for children were handed over (the value of gifts excluding VAT)

VAT charged on the value of gifts

Personal income tax withheld from the cost of gifts from wages

In conclusion, we list the main conclusions related to the accounting and taxation of New Year's gifts for the children of employees of the institution:

  • gifts can be purchased both at the expense of the budget and at the expense of funds received by budgetary and autonomous institutions from income-generating activities. At the same time, such expenses should be provided for in the estimates of state institutions and the plan of financial and economic activities of budgetary and autonomous institutions;
  • associated with the transfer of children's gifts, as a rule, consists in oral form;
  • the cost of the child's gift transferred to the employee is not subject to personal income tax (subject to the total limit on gifts during the year in the amount of 4,000 rubles);
  • the institution's expenses for the purchase of children's gifts are not taken into account when taxing profits;
  • the value of gifts is subject to VAT, since it is recognized as the sale of goods free of charge. In this case, the institution has the right to deduct the "input" VAT;
  • no insurance premiums are charged on the cost of gifts;
  • until the gifts are handed over to the recipients, they are accounted for on the off-balance account “Awards, prizes, cups and valuable gifts, souvenirs”.

First, let's analyze the situation when a firm gives gifts to its employees.

Income tax

In our opinion, New Year's gifts for employees are not related to wages. Indeed, as a rule, they are absolutely the same for everyone and do not depend on the length of service, the position occupied by the employee and the absence of disciplinary sanctions. And in accordance with article 129 of the Labor Code of the Russian Federation, wages are remuneration for work, depending on the qualifications of the employee, the complexity, quantity, quality and conditions of the work performed.

Note that the Ministry of Finance of Russia (letters dated May 28, 2012 No. 03-03-06 / 1/281, dated April 23, 2012 No. 03-03-06 / 2/42) explained that payments due to significant dates unrelated to the performance of workers cannot be recognized.

Personal income tax

By virtue of paragraph 28 of Article 217 of the Tax Code of the Russian Federation, the value of gifts received from organizations and entrepreneurs, the amount of which for the tax period (that is, a year) does not exceed 4000 rubles.

Then everything is simple: if the value of the gift does not exceed 4,000 rubles, then there is no need to tax it with personal income tax. But the tax will have to be withheld from the excess amount.

Please note: if a New Year's gift is given to an employee who is on maternity leave, this does not change anything. Indeed, firstly, formally, she still remains an employee of the organization, and secondly, paragraph 28 of Article 217 of the Tax Code of the Russian Federation does not say at all that gifts can only be given to employees.

Insurance premiums

As stated in Part 1 of Article 7 of Federal Law No. 212-FZ of July 24, 2009, payments and other remuneration accrued in favor of individuals within the framework of labor relations and civil law contracts, the subject of which is the performance of work and the provision of services, are taxed.

Note. The list of payments not subject to insurance premiums is given in article 9 of Law No. 212-FZ.

At the same time, in part 3 of article 7 of Law No. 212-FZ, it is established that payments and other remunerations made under civil law contracts, the subject of which is the transfer of ownership or other property rights to property or property rights, do not apply to the object of taxation with insurance premiums ...

For the definition of a gift, you need to refer to the Civil Code of the Russian Federation.

Clause 1 of Article 572 of the Civil Code of the Russian Federation states that under a donation agreement, the donor donates or undertakes to transfer the thing into the ownership of a third party. Moreover, donation can be made orally, with the exception of some cases (clause 1 of article 574 of the Civil Code of the Russian Federation). So, in writing, a contract for the donation of movable property is concluded when the donor is a legal entity and the value of the gift exceeds 3000 rubles. (Clause 2, Article 574 of the Civil Code of the Russian Federation). Thus, if the cost of a New Year's gift to employees is in the range, for example, from 3,000 to 4,000 rubles, then the company needs to conclude a written donation agreement with each of its employees. And then contributions from the value of the gift may not be charged.

According to subparagraph 1 of paragraph 1 of Article 146 of the Tax Code of the Russian Federation, the sale of goods, works, services in the territory of the Russian Federation is recognized. At the same time, by virtue of paragraph 1 of Article 39 of the Tax Code of the Russian Federation, the transfer of goods free of charge is equated to implementation.

When presenting gifts to employees of the company, the ownership of them is actually transferred to them, therefore such a transfer is subject to VAT (letter of the Ministry of Finance of Russia dated January 22, 2009 No. 03-07-11 / 16).

It is unrealistic to argue with officials at the present time, since the courts adhere to a similar opinion (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of June 25, 2013 No. 1001/13).

However, in practice, everything is not so sad. After recognizing this operation as taxable, the court allowed to reimburse the "input" VAT related to it. Since the workers are given the gift at the purchase price, the accrued and refundable VAT is ultimately given zero. So the company has nothing to lose.

Gifts for children

Now let's talk about what tax liabilities arise in the case of presenting gifts to the children of the company's employees.

Personal income tax

There are somewhat more difficulties here.

Let's start with who receives the gift in terms of paying personal income tax - directly to the child or his parent?

We believe that formally there are two scenarios for the development of events.

1. Gifts are given directly to children... For example, at a holiday.

And here an interesting legal conflict arises.

Who gets the income? Child. This means that he is a taxpayer, but in our country children are not exempt from paying taxes.

At the same time, in accordance with clause 1 of Article 26 of the Tax Code of the Russian Federation, a taxpayer can participate in tax relations through a legal or authorized representative. But it should be borne in mind that by virtue of clause 7 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of February 28, 2001 No. 5, within the meaning of this rule, the subject of the tax legal relationship is the taxpayer himself, regardless of whether he personally participates in this legal relationship or through a legal representative.

Note. This resolution has ceased to be in force, but the conclusions drawn in it are still relevant now.

In accordance with paragraph 2 of Article 27 of the Tax Code of the Russian Federation, persons acting as its representatives in accordance with the Civil Code of the Russian Federation are recognized as legal representatives of a taxpayer. Clause 1 of Article 28 of the Civil Code of the Russian Federation provides that for minors under the age of 14, only their parents, adoptive parents or guardians can make transactions on their behalf.

Thus, the legal representatives of children until they reach the age of 14 are their parents.

This means that their parents should allegedly pay personal income tax and file tax returns in the event of giving gifts to children under the age of 14 (letters of the Ministry of Finance of Russia dated June 15, 2009 No. 03-02-08-54, dated August 28, 2008 No. 03-05-06-01 / 27).

The position of the officials is actually quite shaky.

First, taxes should generally be paid at the expense of the taxpayer's own funds. And representatives pay taxes at the expense of the person they represent, and not at their own expense (ruling of the Constitutional Court of the Russian Federation of January 22, 2004, No. 41-О).

And what are the minor's own funds? In most cases, none. At the same time, there is no principle of family tax liability in our tax legislation: each family member is a separate taxpayer.

Second, paying taxes is not a deal. So, children do not enter into any deals with the state. And it is impossible to draw here Article 28 of the Civil Code of the Russian Federation.

It's just that there is a huge hole in the legislation on this issue.

In addition, no one will even be able to punish anyone for not submitting a personal income tax return. Article 119 of the Tax Code of the Russian Federation establishes that liability is stipulated for failure to submit a tax return by a taxpayer within a specified period. However, in accordance with clause 2 of Article 107 of the Tax Code of the Russian Federation, an individual can be held liable for committing tax offenses from the age of 16. The liability of the legal representatives of an individual is not provided for.

True, the tax authorities in the letter of the Federal Tax Service of Russia in Moscow dated August 9, 2007 No. 28-10 / [email protected] threatened with some responsibility, but they could not name which one.

So in such a situation, strictly speaking, you can generally avoid paying personal income tax, even if a New Year's gift for a child will cost more than 4,000 rubles.

2. Children's gifts are handed over to parents... If the contract for the donation of a New Year's gift is drawn up directly with the employee or he signed the receipt for gifts, then formally it is he who receives the gift. This means that he has an income. Then he pays personal income tax.

By the way, if both parents work in the same company, how many gifts are they entitled to?

It directly depends on how the provision on the issuance of New Year's gifts is spelled out in the local acts of the organization. If it says that a New Year's gift is given to every employee with a child, then each of the spouses working in the same company should be given a New Year's gift.

If it is written that one particular child is entitled to only one gift, then it will be issued only for one of the spouses of their choice.

Insurance premiums

It is clear from the provisions of Article 7 of Law No. 212-FZ that if gifts are given directly to children, then there can be no question of calculating compulsory insurance premiums, since children are not in labor relations with the company and do not enter into any civil law contracts with it ...

If gifts for children are given to parents, then two options are possible, depending on how the transfer is made. If it is drawn up in a written donation agreement, then, as we discussed earlier, insurance premiums may not be charged. If the issue is drawn up with a statement for receiving a New Year's children's gift, where the employee signs off, then theoretically there is a danger that such an issue can be interpreted as payment in kind.

Fortunately, there is a letter from the Ministry of Health and Social Development of Russia dated May 19, 2010 No. 1239-19, where officials considered that from payments and remuneration in favor of individuals who are not related to the company by labor or civil law contracts, including in the form of New Year's gifts employees' children, insurance premiums are not charged.

Value added tax

With regard to the calculation of VAT, the picture is the same as when giving a gift to parents: the tax should be charged.

Example. The Mayak travel agency purchased New Year's gifts for the children of its employees in the amount of 250,000 rubles. (including VAT - 38,136 rubles). The cost of a gift for each child is 2500 rubles. A separate donation agreement was drawn up for each gift.

The cost of gifts when handed over to employees is 211,864 rubles. (250,000 - 38,136). Accordingly, the amount of VAT to be charged is 38,136 rubles. (RUB 211 864 x 18%).

Accounting will reflect:

DEBIT 41 CREDIT 60

  • RUB 211 864 - New Year's gifts for children were credited;

DEBIT 19 CREDIT 60

  • RUB 38,136 - “input” VAT is reflected;

DEBIT 68 subaccount "Calculations for VAT"
CREDIT 19

  • RUB 38,136 - presented for deduction "input" VAT (to deduct "input" VAT, an invoice is needed);

DEBIT 60 CREDIT 51

  • RUB 250,000 - gifts have been paid;

DEBIT 73 CREDIT 41

  • RUB 211 864 - gifts were given to employees;


CREDIT 73

  • RUB 211 864 - the cost of gifts has been written off;

DEBIT 91 subaccount "Other expenses"
CREDIT 68 subaccount "Calculations for VAT"

  • RUB 38,136 - VAT charged on the cost of gifts.

It is not necessary to charge compulsory insurance premiums, as well as to withhold personal income tax from the value of gifts.

Since in tax accounting the value of gifts is not recognized as an expense, on the basis of PBU 18/02 "Accounting for calculations of corporate income tax" approved by order of the Ministry of Finance of Russia dated November 19, 2002 No. 114n, a permanent tax liability arises in accounting. the amount of 42,373 rubles. (211 864 rubles x 20%).

The accountant will reflect it like this:

DEBIT 99 CREDIT 68 subaccount "Calculations of income tax"

  • RUB 42,373 - reflected a permanent tax liability.

When the value of a gift from an organization exceeds 3,000 rubles, a written donation agreement for movable property is drawn up (Articles 572, 574 of the Civil Code of the Russian Federation). It indicates the value of the gift. To avoid the risks of insurance premiums, do not refer to an employment relationship. If gifts are given to several employees at once, it is possible to conclude a multilateral agreement, in which each donee will sign. To confirm the fact of donation, additionally prepare an acceptance certificate or a statement on which all employees who received gifts will sign.

Inspectors often equate gifts for which a gift agreement has not been drawn up to bonuses and payments under an employment contract and charge additional insurance premiums

Fund contributions

For gifts that are transferred under a gift agreement, insurance premiums are not charged (part 3 of article 7 of the Law of 24.07.2009 No. 212-FZ). Gifts under RUB 3,000 can also be presented without a written contract. However, we still recommend that you issue it, since in practice, inspectors often equate gifts for which a donation contract has not been drawn up to bonuses and payments under an employment contract and charge additional insurance premiums. A written agreement can be dispensed with if the donee is not an employee of the organization. In this case, insurance premiums are not charged.

Obligation to pay VAT

The input VAT indicated in the invoice of the seller of the gift can be accepted for deduction by the organization on a general basis, regardless of the amount or the done person.

For VAT payers, the transfer of a gift is recognized as a sale and is subject to VAT at the rate of 18% (clause 1 of article 39, paragraph 2 of clause 1 of clause 1 of article 146 of the Tax Code of the Russian Federation). The invoice is drawn up in a single copy and registered in the sales book of the organization. The basis for calculating VAT is the cost of purchasing a gift (excluding VAT) or, if the gift is a product of an organization, its cost.

For “simplified persons”, the transfer of a gift to an individual is taxed in accordance with the applicable tax system. There is no obligation to impose VAT on this transaction and issue an invoice.

Personal income tax accrual

A gift is an employee's income received in kind. It is subject to personal income tax from the moment when the total amount of gifts received during the tax period (year) exceeds 4,000 rubles (clause 28 of article 217 of the Tax Code of the Russian Federation). For example, an organization gave an employee five gifts in a year, each worth 2,000 rubles. Personal income tax is charged starting from the third gift. The tax rate is 13% for resident donees and 30% for non-residents. The basis for calculating personal income tax from the value of a gift is its market value with VAT (clause 1 of article 211 of the Tax Code of the Russian Federation):

Personal income tax = (gift value - 4,000 rubles) × personal income tax rate

From a monetary gift, personal income tax is withheld upon issuance and transferred to the budget on the same day, from a non-monetary gift - on the day of the next salary payment.

Are the cost of gifts included in the expenses?

The cost of a gift is not recognized as an expense for taxation of profits, as well as for the simplified tax system (clause 16 of article 270, clause 2 of article 346.16 of the Tax Code of the Russian Federation). Nevertheless, the Ministry of Finance of the Russian Federation, in a letter dated 02.06.2014 No. 03-03-06 / 2/26291, considers it permissible to take into account the costs of purchasing a gift as part of income tax expenses, if the basis for its delivery is the employee's labor achievements. This position is controversial. Firstly, such a deal cannot be regarded as a free transfer, because the gift is given not just like that, but based on the results of the work. And secondly, additional insurance contributions can be charged.

Reflection in accounting of the transfer of cash and non-cash gifts to employees

Contents of operation Debit Credit
Non-monetary gift
Non-monetary gift donated (excluding VAT) 91 10 (41, 43)
VAT is charged on the value of a non-monetary gift 91 68
Personal income tax was withheld from the employee's salary from the value of a non-monetary gift 70 68
Money gift
The employee was given money as a gift 73 50 (51)
The cash gift has been written off as an expense 91 73
The employee has withheld personal income tax from the amount of the gift 73 68

Olga Ulyanova,

expert in accounting, tax and management accounting, financial director and co-owner of the consulting company EKVITI OM (service steam locomotive). Has two higher educations - economic and legal. Work experience in holding structures, large international companies in management positions (chief accountant, financial director, deputy general director for accounting and audit, auditor).