Is alimony deducted from sick leave?

Collection of alimony

Alimony is the name given to monetary payments for the maintenance of a minor child made by one of his parents.

Payment of alimony can be carried out:

based on a court decision or court order;
by both parents according to an amicable agreement between them.

In the vast majority of cases, alimony has to be collected through the courts. Moreover, positive verdicts on declared payments are made with almost 100 percent probability. Bailiffs are responsible for the forced withdrawal of the corresponding amounts.

IMPORTANT! Any evasion from paying alimony entails punishment. Even unintentional failure to pay money as part of the procedure may result in administrative penalties. And if the failure to pay alimony is of a malicious nature, then the violator will be prosecuted under Art. 157 of the Criminal Code of the Russian Federation. Moreover, the evading parent is punished equally on two grounds: for ignoring a court decision and for not complying with the agreement between the parents on the amount and timing of payment of child support.

Cancellation of alimony payments on sick leave

As stated above, alimony is paid from sick leave accruals not only when the employee himself is ill, but also when he is caring for a small child or an incapacitated family member.

However, there are situations when the payer can obtain exemption from child support payments. To do this, he must go to court, having compelling reasons for exemption from payments. The court may take into account the presence of a complex illness that requires long-term treatment with the use of expensive medications, the difficult financial situation of the plaintiff, which does not allow him to pay alimony, because this significantly worsens the situation of his family and other children, etc.

When considering the issue, the situation with provision in the family of not only the payer, but also the recipient of alimony is taken into account.

Is alimony taken from sick leave?

Now let’s consider the question of whether it is possible to withhold alimony from a certificate of incapacity for work issued due to illness or other reasons.

Art. 82 of the RF IC determines that the form of income of a parent from which it is permissible to withhold alimony intended for the maintenance of minor children is established by government regulations. Such a document of title is Resolution of the Government of the Russian Federation dated July 18, 1996 No. 841, which provides a complete list of salary forms and types of income from which alimony amounts can be withheld.

The said government document states in this regard that alimony can be taken from any money earned or remuneration expressed in monetary form. Moreover, in accordance with paragraph 1 of the list, it is allowed to collect money both at the main place of work and where the parent works as a part-time worker.

Temporary disability benefits are also classified as income and are included in the described list (subparagraph “c”, paragraph 2). For this reason, alimony from sick leave is withheld, albeit under certain strictly limited conditions, namely on the basis of:

court decision;
court order;
agreement concluded between parents and certified by a notary.

There are no other grounds for collecting alimony from hospital payments.

The procedure for withholding alimony is determined by the Law “On Enforcement Proceedings” dated October 2, 2007 No. 229-FZ. If they are detained at their place of work, then the accounting department does this on the basis of a writ of execution, court order or agreement sent to the enterprise. Funds are transferred to the bailiffs exclusively in non-cash form, indicating in the payment order the details of the received writ of execution.

For information on the rules for filling out such a payment order, read the material “Payment order for bailiffs - sample 2017”.

Voluntary payment of alimony by the debtor is allowed when the parent applies to the accounting department with an application and all funds due to the child are withheld from wages or benefits and then transferred to the recipient. However, in such circumstances, alimony is not deducted from hospital payments, since the conditions given above and implying the compulsory principle of collection are not met.

IMPORTANT! The amount of alimony withdrawn by court decision can be set either as a fixed amount (when the payer does not have a regular income, he receives income in kind or foreign currency), or as a percentage of wages, if it is a stable amount every month.

Procedure for withholding alimony

There are two procedures for collecting alimony depending on their amount:

Less than 25,000 rubles . A person applying for alimony submits a corresponding application to the debtor’s place of work or to the bailiff service. In this case, enforcement proceedings are not initiated.
More than 25,000 rubles . Retention occurs according to a complicated scheme. That is, funds are recovered in the process of enforcement proceedings.

Let's take a closer look at the stages of collecting alimony through enforcement proceedings:

Submitting an application to the bailiff service.
Initiation of enforcement proceedings after receiving a writ of execution.
The place of service of the person who is obliged to pay alimony is determined. A writ of execution is sent to the administrative department of the organization.
Based on the writ of execution, the accounting department is obliged to begin the procedure for withholding alimony.
If an employee is on sick leave and a corresponding benefit is accrued to him, taxes and mandatory fees are first withheld from his amount, and only then alimony.
The funds are transferred to the alimony recipient within 3 days from the date of payment of benefits to the employee. This rule is stipulated by Article 109 of the RF IC.

ATTENTION! All expenses for the transfer of alimony are also collected from the employee. These costs may include, for example, a fee for transferring money.

How to report alimony withholding on tax reporting

According to paragraph 1 of Art. 217 of the Tax Code of the Russian Federation, payments for sick leave, despite the fact that they are classified as benefits, are subject to personal income tax. Thus, tax legislation equated them to ordinary income.

Funds paid as part of temporary disability benefits should be reflected in the 2-NDFL certificate. For such amounts, code 2300 is assigned, reflected in the line “income code” of the 3rd section of this report.

It should be borne in mind that the amounts of alimony withheld from income in accordance with court decisions do not reduce the size of the tax base. There is a rule on this matter contained in Art. 210 Tax Code of the Russian Federation.

This means that in section 5 of the certificate it is necessary to indicate the tax base formed before the withdrawal of income tax and alimony and with tax deductions already taken away. As a result, it turns out that alimony is not reflected either in the 2-NDFL certificate or in the 6-NDFL calculation.

Find out the procedure for filling out a report on form 6-NDFL from the article “How to correctly reflect alimony in 6-NDFL (nuances)?”

Settlement and retention

We have decided whether alimony is calculated on sick leave. But the calculation of the amounts due for withholding is carried out according to the rules common to all and after deducting the amount of income tax. This is directly stated in Part 1 of Art. 99 of the Law on Enforcement Proceedings No. 229-FZ.

We talked more about alimony in the article: “When and how to withhold alimony in relation to personal income tax.”

Thus, payment of sick leave is subject to personal income tax. Only then the corresponding amounts are allocated to the children.

How to pay taxes on sick leave, read the article: “Paying income tax on sick leave.”

Example
Lawyer Gurov works at Guru LLC. Based on the writ of execution, the employer does not pay him an additional quarter of his income, since he leaves it as alimony for the needs of the employee’s young daughter. Based on the certificate of incapacity for work, Gurov received 10,500 rubles as a result of his illness. You need to subtract income tax from it: 10,500 rubles. – 10,500 rub. × 13% = 9135 rub.
Next, let’s calculate the amount of alimony that will be deducted from the benefit:
9135 rub. × 1/4 = 2283.75 rub.

Results

Based on the analysis carried out in the article, the following conclusion can be drawn: alimony can be withheld from hospital payments if one of three conditions is met.
Such deductions must be determined by a court decision, court order or agreement concluded by the parties and certified by a notary. Amounts of alimony are not reflected separately in tax reporting. You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.

Required documents

The list of documents required to collect alimony from temporary disability benefits directly depends on the stage of the process of collecting such maintenance from all income of the debtor, and not just from funds received as sick leave. So, if at the time a person went on disability leave, alimony benefits were already being collected by the accounting department, then no documents will be required .

However, the “alimony provider”, in order to directly assign such compensation, upon actual return to work, must submit to the employer a sick leave certificate that meets the regulatory requirements and established standards (Clause 5 of Article 13 of Federal Law No. 255). This is the only document required for the accounting department to calculate sickness compensation.

In cases where funds for the maintenance of a common child have not yet been collected, the procedure for withholding them must begin according to a typical algorithm established by practice, which involves applying to various types of institutions. Depending on such institutions, the package of documents will vary. So, let's look at this process step by step:

If the potential payer of the documents agrees to pay child support voluntarily, then the parties it is advisable to conclude an agreement on their payment (Article 99 of the UK), which is subject to notarization. For this you will need the following documents:
Passports of the parties;
Child's birth certificate;
Certificates of registration and divorce.
If the parties have disagreements, a writ of execution (writ of execution or court order) to recover money for the child can only be issued by a court. When filing a claim in court, the plaintiff will need to provide:
Certificates of registration and divorce;
Child's birth certificate;
A certificate of family composition from the place of residence of the minor for whose maintenance funds are being collected;
Certificate of income of the potential payer of the documents;
Calculation of the amount of alimony;
Documentary justification of the costs of maintaining a child;
Documentary confirmation of the need to create special conditions for the child (in case of illness, developmental delay, etc.);
A document confirming paternity (in case of cohabitation, if there is no entry about the person in the birth certificate)
Copy of the plaintiff’s passport, etc.
After receiving a writ of execution from the court, issued on the basis of a court decision, the recipient of alimony maintenance, in order to have it calculated from wages and sickness benefits, must contact either to the SSP division (bailiff service) at the debtor’s place of work, or independently - to the enterprise administration. In this case, you will need to submit the following documents:
Original writ of execution (sheet, order, agreement);
A copy of the recipient's passport;
An extract with the bank details of the recipient of child support funds.

How are payments calculated?

The Family Code of the Russian Federation determines what percentage of earnings is supposed to be deducted in favor of minor children. When calculating alimony, the amount of monthly income after taxes is taken into account (for employees - 13%) . Of this amount, a quarter, one third or one second is taken for the maintenance of children.

Table: minimum amount of alimony payments

Number of minor children	Percentage deducted for alimony
1 child	25%
2 children	33%
3 children	50%

Bailiffs have the right to seek payment of alimony

How to calculate the amount withheld (example)

The amount for sick leave is 9,735 rubles for 15 days of illness. It is subject to income tax of 13% (i.e. 1265.55 rubles). The amount from which alimony will be paid will be 8469.45 rubles. We remember that 25% of this income is required to support one minor child. Consequently, 2117.36 rubles will be used to pay alimony. As a result, the employee will receive 6352.09 rubles. after all deductions.

The court may decide to collect alimony in a fixed amount, which must be paid every month, regardless of the income and employment of the alimony.

Of course, the illustrated calculation of alimony is valid only if the alimony recipient is officially employed.

Video: in what cases is alimony paid in a fixed amount and how can you apply for it?

Innovations in calculations

In 2016–2017, changes in legislation did not affect the method of calculating alimony on sick leave. And yet their final size may change due to a review of the very nature of hospital compensation. Currently, compensation is calculated based on the employee’s length of service. The longer the experience, the higher the amount of deductions will be:

if the length of service is less than 5.5 years, then the amount of payments will be 60% of the calculated benefit;
with experience from 5.5 to 8.5 years - 80%;
when the experience is more than 8.5 years - 100%.

When can a court refuse to award alimony from sick leave?

In accordance with the provisions of the RF IC, judges when considering alimony disputes, among other things, are obliged to take into account the financial and marital status of both parties. Therefore, in certain situations, the plaintiff’s application for the recovery of alimony from the amounts paid to the defendant under a certificate of incapacity for work may remain unsatisfied.

The reason for this may be circumstances indicating the difficult financial situation of the obligated person. They are, in particular, mentioned in the Resolution of the Plenum of the Supreme Court No. 56 of December 26, 2017, regarding the withholding of alimony in favor of minor children from their parents and adoptive parents. They can be fully attributed to other types of alimony obligations. These include:

The presence of minors, as well as adult but disabled children, elderly parents, and other family members whom he is obliged to support by law.
The income he receives is insufficient for the normal existence of himself and his family.
Poor health (severe chronic disease, disability, age-related characteristics).
Another dependent has serious health problems, for whose maintenance alimony is being sought, requiring long-term treatment and rehabilitation.

In addition, the court may take into account circumstances when the financial situation of the family in which the child lives, on the contrary, is quite prosperous. These factors include the following:

The mother (father) who is raising the child has a good income.
Such a parent owns valuable property that can generate income that can be used to meet the needs of the child, for example, an apartment that can be rented out.
The person obligated to pay alimony has previously transferred to his son or daughter a large sum of money or property, as described above.

The list of specified reasons why a judge may refuse to collect alimony from sick leave is not exhaustive. There may be other circumstances that the court will consider as objective for refusing to satisfy the claim.

Note! The deduction of alimony from sick leave can only be refused if the defendant provides the necessary documentary evidence. If the plaintiff manages to prove the presence of other factors, the decision will be made in his favor.