The company did not pay five insurances and one housing fund to the individual, should the individua

No, it is not legal not to pay the five insurances and personal income tax. According to Article 17 of the Labor Contract Law, an employment contract shall have the following provisions:

7) Social insurance;

According to the Personal Income Tax Law:

Article 1 An individual who has a domicile in China, or who has no domicile but has resided in China for one year, shall pay individual income tax on income obtained from within and outside China in accordance with the provisions of this Law.

Individuals who have no domicile and do not reside in China, or who have no domicile and have resided in China for less than one year, shall pay individual income tax on income obtained from within China in accordance with the provisions of this Law.

Article 2: Individual income tax shall be paid on the following personal income:

1. Income from wages and salaries;

However, the housing provident fund is not mandatory in the labor law, and the company can choose whether to pay the provident fund according to the situation.

If it is legal for the employer not to pay social insurance to the employee, it violates the provisions of the Labor Law of the People's Republic of China, the Social Insurance Law of the People's Republic of China and other relevant laws, and infringes upon the legitimate rights and interests of the employee.

Legal analysis

Workers can file a complaint with the labor inspection department where the employer is located and assert their legal rights and interests, or they can file a complaint with the tax authority's department responsible for the collection of social insurance. At the same time, according to Article 38 of the Labor Contract Law, if an employer fails to pay social insurance premiums for an employee in accordance with the law, the employee may terminate the labor contract and require the employer to pay severance payments. Severance shall be paid to the worker according to the number of years of service in the employer and one month's salary for each full year.

If the employer fails to pay social insurance premiums for the employee in accordance with the law, and the employee is unable to enjoy social insurance benefits and suffers losses, the employee may also request the employer to compensate for the losses in accordance with the Interpretation (III) of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Labor Dispute Cases. Legal basisArticle 1 of the Interpretation (III) of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Labor Dispute Cases Article 1 If a dispute arises where a worker requests the employer to compensate for losses on the grounds that the employer has not completed the social insurance formalities for him, and the social insurance agency cannot make up for it, resulting in his inability to enjoy social insurance benefits, the people's court shall accept the dispute.

Legal basis

Social Insurance Law of the People's Republic of China Article 4 Employers and individuals within the territory of the People's Republic of China who pay social insurance premiums in accordance with the law have the right to inquire about payment records and records of personal rights and interests, and to request social insurance agencies to provide social insurance consultation and other related services. Individuals enjoy social insurance benefits in accordance with the law, and have the right to supervise their own units' contributions for them.

Article 1 of the Opinions of the Ministry of Labor and Social Security on Several Issues Concerning the Implementation of the Regulations on Work-related Injury Insurance Article 1 Where an employee is employed in two or more employers at the same time, each employer shall pay work-related injury insurance premiums for the employee separately. In the event of a work-related injury to an employee, the employer where the employee works at the time of the injury shall bear the work-related injury insurance liability in accordance with the law.

The failure of the employer to purchase five insurances and one housing fund for employees is not directly and necessarily related to whether they need to pay individual income tax. If the employee's salary exceeds 5,000 after deducting social insurance and other expenses, he or she needs to pay individual income tax. In addition, the employer shall pay social insurance for the employee in accordance with the law.

Calculation of taxable income under Article 6 of the Individual Income Tax Law:

1) The comprehensive income of individual residents shall be the taxable income after deducting 60,000 yuan of expenses and special deductions, special additional deductions and other deductions determined in accordance with the law in each tax year.

2) The income from wages and salaries of non-resident individuals shall be the taxable income after deducting the monthly income of 5,000 yuan; Income from remuneration for labor services, author's remuneration and royalties shall be taxable income based on the amount of each income.

3) Business income shall be the taxable income based on the balance of the total income of each tax year after deducting costs, expenses and losses.

4) Where the income from property lease does not exceed 4,000 yuan each time, 800 yuan shall be deducted from expenses; If the amount is more than 4,000 yuan, 20% of the expenses will be deducted, and the balance shall be the taxable income.

5) Income from the transfer of property shall be the taxable income after deducting the original value of the property and reasonable expenses from the income from the transfer of property.

6) Interest, dividends, bonuses and incidental income shall be taxable with the amount of each income.

Income from remuneration for labor services, author's remuneration and royalties shall be the balance of the income after deducting 20% of the expenses. The amount of income derived from author's remuneration is reduced by 70%.

Individuals who donate their income to public welfare charitable undertakings such as education, poverty alleviation, and poverty relief may deduct from their taxable income if the donation amount does not exceed 30% of the taxable income declared by the taxpayer; Where it is stipulated that donations to public welfare and charitable undertakings shall be deducted in full before tax, such provisions shall prevail.

Legal analysis: There is no direct and inevitable relationship between the failure of the employer to purchase five insurances and one housing fund for employees and whether they need to pay individual income tax. If the employee's salary exceeds 3,500 yuan after deducting social insurance and other expenses, he or she needs to pay individual income tax.

In addition, the employer shall pay social insurance for the employee in accordance with the law.

Legal basis: Interim Regulations on the Collection and Payment of Social Insurance Premiums

Article 4 Contributors and individuals shall pay social insurance premiums in full and on time. The social insurance premiums collected are included in the social insurance**, and the funds are earmarked for special use, and no unit or individual may misappropriate them.

Article 12 The paying units and paying individuals shall pay the social insurance premiums in full in monetary form. The social insurance premiums that should be paid by the individual shall be withheld and paid by the employer from his or her own salary. Social insurance premiums are not exempt or reduced.

Legal analysis: The individual income tax part is paid according to the part paid after deducting the five insurances and one housing fund. Taxable income, salary, endowment insurance, medical insurance, housing provident fund, unemployment insurance - 3500.

If it is less than 3,500 yuan after subtracting five insurances and one housing fund, it does not need to pay individual income tax, if it is higher than the corresponding proportion of the total salary of 5,105 yuan as an example, five insurances and one housing fund 105 yuan as an example x3%-05 yuan.

Legal basis: Article 2 of the Individual Income Tax Law of the People's Republic of China The following individual income shall be subject to individual income tax:

1. Income from wages and salaries;

2) Income from remuneration for labor services;

3) Income from author's remuneration;

4) Income from royalties;

5) Business income;

6) Income from interest, dividends and bonuses;

7) Income from property lease;

8) Income from the transfer of property;

9) Incidental gains.

Resident individuals who obtain the income from items 1 to 4 of the preceding paragraph (hereinafter referred to as "comprehensive income") shall calculate individual income tax on a consolidated basis according to the tax year; For non-resident individuals who obtain the income in items 1 to 4 of the preceding paragraph, the individual income tax shall be calculated on a monthly or sub-itemized basis. Taxpayers who obtain the income from items 5 to 9 of the preceding paragraph shall calculate individual income tax separately in accordance with the provisions of this Law.