New rules for receiving overpaid contributions from the Social Insurance Fund
Since 2022, all constituent entities of the Russian Federation have switched to the mechanism of direct payments from the Social Insurance Fund. This means that temporary disability benefits and other social insurance benefits are paid not by the employer with further offset of the amounts paid, but directly by the Social Insurance Fund itself. But policyholders may have overpaid the amount of social benefits to employees, and they are worried about how to reimburse the overpayment under the Social Insurance Fund in 2022 according to the new rules. The credit and refund mechanisms continue to operate. There is Article 26.12 of the Federal Law of July 24, 1998 No. 125-FZ (as amended on April 5, 2021) “Credit or refund of amounts of overpaid insurance premiums, penalties and fines,” which regulates these processes.
On a note
The control body may not pay accrued interest on the amount of excessively collected insurance premiums to the payer in full. He calculates the remaining amount of interest based on the date of actual return to the payer of the amounts of excessively collected insurance premiums. The control body makes a decision on the return of the remaining interest amount within 3 working days. The countdown is made from the date of receipt of the notification from the relevant territorial body of the Federal Treasury about the date of return and the amount of funds returned to the payer (Clause 11, Article 27 of Law No. 212-FZ).
It is important to know that the funds will not always return the amounts of identified overpayments on insurance premiums. For example, a refund of the amount of overpaid insurance contributions to the Pension Fund is not made if the territorial body of the Pension Fund took into account the amount of overpaid insurance contributions as part of the personalized accounting information and this information was posted by the fund to the individual personal accounts of the insured persons. That is, if the payer has already provided the Pension Fund with individual (personalized) accounting information, where these overpayment amounts are taken into account by the fund in the personal accounts of the insured persons (Clause 22, Article 26 of Law No. 212-FZ).
The payer may also face a decision to refuse if he had debts on penalties and fines provided for by Law No. 212-FZ, and the amount of these debts is greater than or equal to the amount of the overpayment.
You can return overpaid contributions only after they have been offset against debts on fines and penalties (Clause 12, Article 26 of Law No. 212-FZ). And if the amount of such debts turns out to be more than the amount of the identified overpayment, then there will be nothing to return to the payer.
Who decides on the return of overpayments from the Fund?
The territorial branch of the Fund, to which an application for a refund from the Social Insurance Fund was submitted due to overpayment of insurance premiums, makes a decision on the return of overpaid insurance contributions, penalties and fines.
IMPORTANT!
It has been established that the territorial body of the insurer is obliged to inform the policyholder about each fact of excessive payment and the amount of overpaid insurance premiums that has become known within 10 working days from the date of discovery of such a fact in writing or in the form of an electronic document.
The difference in the form of the excess of the employer's expenses for the payment of insurance coverage over the total amount of accrued contributions to compulsory social insurance in case of temporary disability and in connection with maternity is reimbursed by the territorial bodies of the Social Insurance Fund in accordance with the procedure established by Federal Law No. 125-FZ.
Return deadlines
Tax authorities return overpayments of insurance premiums within a month from the date of receipt of the application. During this period they must:
- carry out reconciliation of mutual settlements with you (if necessary);
- offset the overpayment or part thereof towards repayment of the debt (if there is a debt);
- make a decision on the return, which is allotted 10 working days;
- transfer it to the treasury for payment;
- After making a decision, inform the applicant about it within 5 working days.
If you submitted a DAM report or an adjustment that showed overpaid contributions, then the decision on the refund will be made 10 business days from the day following the end of the desk audit. The deadline is 3 months from the date of submission of the calculation of insurance premiums.
If, during the “camera” examination, tax officials discover violations of the legislation on taxes and fees, then the deadline will be counted from the date following the entry into force of the audit decision.
Social insurance returns overpaid contributions from accidents within the same period - within a month from the date of receipt of the application.
How to apply for money
The Social Insurance Fund approved application forms for the return and offset of overpaid funds by order dated November 17, 2016 No. 457 in accordance with the norms of Part 1 of Article, Clause 11 of Art. 26.12 of Law No. 125-FZ, which states whether overpayments of insurance premiums can be offset against future payments or received money back.
IMPORTANT!
It is impossible to issue a letter for a return transfer to the policyholder of money excessively transferred to the Fund or paid to employees in free form.
To return contributions for VNIM and injuries, you should contact the FSS with a prepared application for the return of overpayments on contributions in Form 23 - FSS of the Russian Federation.
IMPORTANT!
The law determines the period within which a company has the right to file an application for offset of overpayments on insurance premiums - within 3 years from the date of its occurrence. That is, in 2022 it is allowed to return or offset amounts overpaid in 2022 and later.
The tax authority is obliged to consider the application within one month from the date of receipt of such an application (clause 6 of Article 78 of the Tax Code of the Russian Federation).
The territorial body of the FSS of the Russian Federation has the right to propose conducting a joint reconciliation of calculations (clause 4 of article 26.12 of law No. 125-FZ). It is advisable not to refuse it. The policyholder has the right to initiate the reconciliation independently (Clause 4, Article 26.12 of Law No. 125-FZ). Based on the results of the reconciliation, an act is drawn up that confirms the presence of surplus transfers and their size.
How and when does an overpayment occur?
There are many reasons why an excessive tax remittance may occur. Here are some of them:
- mistakenly indicated in the payment order an amount greater than what was actually required to be paid;
- you discovered an error in your accounting for previous periods, as a result of which you filed an adjustment report, and the amount of tax (contributions) payable to the budget decreased, resulting in an overpayment;
- if the amount of advance payments during the year exceeds the amount of tax that you calculated at the end of the year (this applies, for example, to income tax, tax under the simplified tax system);
- if an organization, at the request of the tax authority, first paid the arrears, penalties or tax fines, but subsequently appealed this unlawful demand, then an overpayment may also arise.
In order to make sure that the enterprise has a tax surplus, it is necessary to request from the Federal Tax Service a certificate of calculations for taxes and duties, as well as conduct a joint reconciliation for a certain date. A certificate or reconciliation report can be requested either electronically or on paper by written request, which is submitted through the inspection at the place of registration. There is an example of a request recommended by the Ministry of Finance (Appendix No. 8 to the Administrative Regulations, approved by order of the Ministry of Finance of the Russian Federation No. 99n dated July 2, 2012).
The tax authority is obliged to issue a certificate within five working days (clause 10, clause 1, article 32 of the Tax Code of the Russian Federation). You can also carry out a joint reconciliation of settlements with the tax authority by requesting a reconciliation report from it upon application (clause 12, clause 1, article 32 of the Tax Code of the Russian Federation). In the certificate and in the reconciliation report you will see all the amounts of debts and overpayments for each tax, contribution, fee, penalty and fine, indicating the KBK, OKTMO, and the Federal Tax Service code. Moreover, the reconciliation act is signed bilaterally and with the help of it it is possible to prove that you are right, and then the tax office will correct the data in its database (if it does not match yours).
An overpayment confirmed by the tax authority can either be returned or offset against future payments (Clause 1, Article 78 of the Tax Code of the Russian Federation). Moreover, this must be done no later than three years from the date of payment of the excess tax amount or from the date of filing updated reporting or a declaration for VAT refund (clause 7 of Article 78 of the Tax Code of the Russian Federation).
That is, for example, if there was an overpayment of insurance premiums for compulsory pension insurance on January 15, 2017, then until January 15, 2022, accordingly, you can still submit an application for a refund or offset of this type of insurance premiums against upcoming payments for this contribution and corresponding penalties and fines.
But, however, if information about the amount of overpaid pension contributions was already taken into account in the individual personal accounts of the insured employees of the organization, then it will no longer be possible to return or offset such contributions (clause 6.1 of Article 78 of the Tax Code of the Russian Federation). This situation may arise if you submitted a calculation for insurance premiums with inflated amounts of contributions and these amounts were transferred to the Pension Fund of the Russian Federation and recorded in the personal accounts of individuals, but after which you submitted an adjustment calculation with smaller amounts of pension contributions. If only the payment was overestimated, and all information from the DAM was taken into account correctly, then the overpayment will be returned/credited.
Credit for injury contributions in 2022
If an organization has both a debt and a surplus of obligations to the Social Insurance Fund for periods that expired before 01/01/2021, then it is allowed not to figure out how to return the overpayment for sick leave from the Social Insurance Fund in 2022, but to offset the overpaid amount against insurance premiums.
Offsetting overpayments that arose in the current calendar year is possible only for payments of one type. This means that overpaid pension contributions will be counted against arrears only of payments under compulsory pension insurance, and contributions to VNiM cannot be attributed to pension insurance, and so on.
It is not enough to return the funds; you need to properly account for them. Otherwise the fine will be greater than the refund amount. Instructions from ConsultantPlus experts will help you correctly account for the refund of insurance premiums.
When overpayments on insurance premiums may not be refunded
Overpayment of insurance premiums for compulsory pension insurance cannot be returned if, according to the information of the Pension Fund of Russia, the amount of overpaid insurance premiums is taken into account in the individual personal accounts of insured persons who were assigned a pension at the time of submission of the application for refund. Previously, the return of overpayments was not allowed if the Pension Fund managed to distribute them to individual personal accounts.
If the refund of the overpayment is refused, the individual entrepreneur has the right to appeal such refusal to a higher tax authority within one year. If the complaint is rejected, the overpayment can only be returned through the court. In this case, the general rules for calculating the limitation period apply - three years from the moment the individual entrepreneur learned or should have learned of a violation of his right.
If you need a qualified and experienced lawyer to recover insurance premiums, contact the Kirpikov and Partners center.
Rights of insurance premium payers.
In accordance with clause 3, part 1, art. 28 of Law No. 212 FZ, payers of insurance premiums have the right to a timely offset or refund of amounts of overpaid or overcharged insurance premiums, penalties and fines. Control over the payment of insurance contributions for compulsory pension insurance is carried out by the Pension Fund. According to clause 5, part 3, art. 29 of Law No. 212 of the Federal Law, bodies monitoring the payment of insurance premiums are required to make decisions on the return to the payer of insurance premiums of amounts of overpaid or excessively collected insurance premiums, penalties and fines, send instructions issued on the basis of these decisions to the relevant territorial bodies of the Federal Treasury for execution and offset the amounts overpaid or overcharged insurance premiums, penalties and fines in the manner prescribed by this law.
So, if at the expense of the property of the payer of insurance premiums the amount of penalties accrued for arrears on insurance premiums is excessively collected, then by virtue of Law No. 212 Federal Law he has the right to return such amounts.
