Sooner or later active developing companies expanded with regional branches. Office, commercial premises, a warehouse opened outside the location of the organization are subject to state registration as separate units.
Types of separate divisions
The Tax Code of the Russian Federation (Article 11, Clause 2) refers to separate subdivisions any parts of the company that are not located at the legal address of the company, if they meet two conditions:
- open for more than a month;
- have fixed jobs (at least one).
Here it is necessary to distinguish between ordinary OPs and branches / representative offices of the company. The latter are a kind of units, but with broader powers and functions:
- Representative offices carry out the role corresponding to their name: they represent the interests of a legal entity outside its location.
- Branches, as territorially separate parts of the company, have the full range of functions, as well as the "head" organization.
Such EPs are not completely independent, but act on the basis of separate provisions, have their own property and management bodies. And most importantly, their formation is possible only through amendments to the constituent documents of a legal entity. An organization that has branches loses the right to apply the simplified taxation system.
The opening of an EP that is not a branch or representative office is within the competence of the head of the organization and does not require rewriting the charter. There is no need to provide a new branch with its own current account, develop a regulation on the OP, appoint a head. Accounting for this EP will also be centralized. After opening, it is enough to simply register the unit in the inspectorate of the Federal Tax Service where the legal entity is “listed”.
The procedure for registering an EP for tax accounting
From the moment of opening a separate subdivision, legal entities are given 30 days to put it on state register. Violation of this deadline, as well as the work of the branch without notifying the tax authorities, threatens the organization with fines (Article 116 of the Tax Code of the Russian Federation):
- 10,000 rubles for delay;
- 40,000 rubles or more (in the amount of 10% of the income received by the OP) - for the lack of registration.
The guilty official bears administrative responsibility in the form of a fine in the range of 2000 - 3000 rubles (CAO, Article 15.3, part 2).
You must follow the correct sequence of actions. First - the opening of the OP, then - the notification of the tax. To register a new branch, it must already have its own address and at least one equipped workplace. The actual date of opening can be considered the day of admission to the unit of the first employee - from this moment the countdown of the application submission period begins.
Registration of a separate division legal entity consists in tax registration with the Federal Tax Service at the location of the branch to be opened (clause 1, article 83 of the Tax Code of the Russian Federation). Theoretically, the organization must register with the inspections of all municipalities in which it opens its OP. However, in practice, everything is simpler: it is enough to apply with an application to “your” IFTS (at the legal address of the company), and then the tax authorities independently transfer the documents to the right place within five days.
Application for registration of a separate division
To register a separate subdivision in the tax office, it is necessary to issue a message in the form C-09-3-1. The application form used by organizations when opening an EP and changing their data is approved by Order of the Federal Tax Service No. ММВ-7-6 / [email protected] June 9, 2011
Form C-09-3-1 will be filled in as follows. Page 1 contains information about the organization and its representative:
Page 2 is filled with data for the branch to be opened:
- TIN and KPP of the main organization;
- page number - 0002;
- name of the OP;
- the actual address of the unit;
- date of creation;
- activity code according to OKVED;
- Full name of the head of the EP, if appointed, his TIN and telephone number;
- applicant's signature.
This sheet is filled out for each of the opened divisions.
Instructions for state registration of a separate subdivision
It is not difficult to create and register a separate division, if it is not a representative office or branch. You don't even have to go to the tax office. The message can be sent by letter or via the Internet using digital signature leader.
To register a separate division in 2015, follow our step-by-step instructions:
At this point, the issue of creating a remote branch can be considered closed.
As for the cost of registering a separate subdivision, there are no state fees for such actions. Your expenses will consist only of payment for notarial services for certifying copies of documents.
The SP must apply the same taxation system as the parent organization. As a rule, all calculations with the budget for departments are carried out centrally from the "head" of the company. But if the department has its own balance sheet, it can pay contributions to off-budget funds and transfer taxes (on profit, on property, transport, personal income tax) on its own, submitting the necessary reports to local authorities FTS, PFR and FSS.
Recall that the described registration procedure applies only to simple EPs that do not have representative functions. In order to avoid accusations of illegally opening a branch or representative office, legal entities should avoid giving broad powers to remote offices.
All Russian enterprises may, at their own discretion, open subdivisions that are territorially isolated from the main company. Such divisions are branches, representative offices and other divisions, for example, stationary workplaces. The current rules of law describe in detail the procedure for creating separate divisions. However, such norms do not contain step-by-step instructions for registering a separate subdivision in 2017.
General provisions on structural divisions
Russian legislation establishes the unconditional right of each domestic company to have and create its own separate structural divisions (Article 55 of the Civil Code of the Russian Federation).
It is important to note that no structural unit can be physically and legally located at the address of the main company. Such a structure should be isolated from the parent company and geographically removed from it. Such a structure should have stationary jobs with a period of operation of more than one calendar month (Article 11 of the Tax Code of the Russian Federation). A structural subdivision of a company may be a branch, a representative office or another separate subdivision (Article 55 of the Civil Code of the Russian Federation and Article 11 of the Tax Code of the Russian Federation).
Domestic legislation, giving companies the right to create structural divisions that are territorially separate from the main company, also gives them the right to register a separate division.
Information about a separate subdivision, with the exception of stationary jobs, is indicated in a single state register legal entities, for which the organization creating them must submit an application to the tax office for opening a separate subdivision. The corresponding application form can be downloaded from the link below, in the Consultant Plus SPS or on the website of the Federal Tax Service of the Russian Federation.
The opening of separate subdivisions not specified in the Civil Code of the Russian Federation should be notified to the tax authorities. To do this, fill out the appropriate notification form in the form No. С-09-3-1.
Creation of a structural division of the company
Russian legislation, allowing for the possibility of registering a separate subdivision in tax office any Russian company does not impose any special requirements on such companies.
To open a separate division of the company specified in Article 55 of the Civil Code of the Russian Federation, a decision of the general meeting is required.
The above procedure for registering a separate subdivision is applied only in the case of registering a branch or representative office. On the opening of a subdivision not specified in the Civil Code of the Russian Federation, the head of the enterprise issues an appropriate order. No special decisions of the general meeting of participants are required.
If a structural unit is registered that is separate from the main company, then it is not necessary to fill out applications using the above forms. In this case, it is enough to fill out a notification in the form No. С-09-3-1, approved by the Federal Tax Service of Russia by order No. ММВ-7-6/ dated 09.06.2011 [email protected]
It must be remembered that the list of documents required for registration of a separate subdivision is not limited to the application and protocol. The list of documents for registering a separate subdivision is contained in Article 17 of Federal Law No. 129-FZ dated 08.08.2001 and additionally provides for changes to the charter and a document on the payment of a fee for registration actions. This rule is true for cases where information about the structural unit is reflected in the charter.
As for the creation of a structure that is not a branch or representative office, the current norms and rules of domestic legislation do not contain any list of documents required to register a separate subdivision.
General step-by-step instruction for registration of structural units is as follows:
- making a decision to create a branch and a representative office or issuing a corresponding order to create another structure;
- if information about the branch / representative office will be included in the charter, then it is necessary to prepare amendments to the charter, make a decision to amend the charter, fill out application No. Р13001, pay the state duty. After that, you need to send the entire set of documents to the tax authorities;
- fill out a notification form C-09-3-1 and submit it to the tax office of the main company.
In addition to the above actions, an enterprise opening its own structural unit must be prepared to submit other documents to the tax office.
After all of the above has been completed, it can be argued that the registration of a separate subdivision with the tax office has been completed. It must be remembered that in addition to the actions aimed at registering the EP, it is necessary to perform other actions of an organizational nature:
- develop and approve a regulation on a branch or representative office;
- appoint the head of the subdivision, separate from the main enterprise, and issue him a power of attorney. The power of attorney to the head of the structural unit is issued by the sole executive agency main enterprise;
- rent or purchase real estate necessary for the establishment of a separate structural unit;
- endow the relevant structure with the property of the main enterprise;
- if necessary, open current accounts;
- organize stationary workplaces;
- hire staff.
This list of actions is not exhaustive. It can be reduced or increased and should be specified taking into account the actual circumstances and goals of creating the relevant structural unit, separate from the main enterprise.
Taking into account the existing differences in the procedure for registering EPs that are territorially isolated from the main enterprise, it is necessary to take into account some features in determining the date of creation of the corresponding structure.
The date of creation of structural units not named in the Civil Code of the Russian Federation is the date of organization of stationary jobs.
If it is necessary to find out the date of creation of structural units directly listed in the Civil Code of the Russian Federation, then such a date will be the date of the decision to create the corresponding structure. But it should be remembered that in judicial practice there is another position, according to which the date of opening of a structural unit is understood as the date of equipping workplaces and starting activities.
Compulsory opening of structural divisions
Based on the right of organizations to open their separate structural subdivisions declared by the norms of the Civil Code of the Russian Federation, we can conclude that there are no norms obliging enterprises to open their own structural subdivisions, territorially isolated from the enterprises themselves.
It should also be remembered that a situation may arise when it is necessary to register a separate subdivision, geographically separate from the main organization.
From the foregoing, it follows that the registration and creation of structural units are not only the rights of the enterprises that create them, but sometimes their direct duties.
From the content of the legislative acts of Russia in the field of regulation of the activities of branches and representative offices, it follows that the activities of branches or representative offices are possible only after a decision has been made on their creation by authorized bodies. This prescription is contained, for example, in Article 5 of the Federal Law of February 8, 1998 No. 14-FZ.
The annex to the above notification form does not contain any documents confirming the creation of a structural unit not named in the Civil Code of the Russian Federation. There is no such list of documents in other norms of domestic law. It follows that the organization sends the tax authorities only a notification of the creation of a unit.
There is no obligation to register such units. Tax officials are only notified of the actual organization of stationary jobs.
It should be noted that due to the specifics of the activities and organization of structural units that are not named by the norms of the Civil Code of the Russian Federation, the actual opening can occur without the implementation of formal procedures, such as making a decision, issuing a power of attorney, approving the position.
As a result, a situation may occur when a structural unit actually works, but is not officially open. It must be remembered that the norms of the Tax Code of the Russian Federation establish a fine for not opening a separate subdivision.
It must also be remembered that if a company operates through separate structural subdivisions and has not registered such subdivisions with the relevant inspections, then such an organization can already be fined 40,000 rubles. This responsibility follows from paragraph 2 of Art. 116 of the Tax Code of Russia.
Instead of a conclusion, it should be noted that the answer to the questions, what documents are needed to register a separate subdivision and what actions need to be taken for this, directly depends on the type of subdivision being created.
Enterprises operating in the territory of the Russian Federation, unlike entrepreneurs, can open structural units (subdivisions) in any region. The latter do not need this to do business, they, being registered at the place of residence or doing business, have the right to do it anywhere in the country.
Depending on the functions that the LLC wants to entrust to a separate subdivision (SD), it can be registered as a branch or representative office. In another case, if there is a need to create a structural unit that is completely identical to the main office for employees to perform their work duties, you can open a regular EP. There is a significant difference between the three types of OP.
In any case, the subdivision designates an office (workshop, warehouse, etc.) - an object where employees can work, performing professional duties and the tasks assigned to them by the main enterprise. The subdivision must have a different legal address, i.e. it is considered to be geographically remote from the main office.
Despite the fact that the Civil Code under a different address for a OP means a territory subordinate to a different municipality, for tax purposes it is enough that it was just a place with a different postal address.
The Tax Code considers a subdivision any structural unit that operates under the control of the main office, regardless of whether it is on a dedicated balance sheet or not. The second important feature of any division is the presence of stationary jobs that can function for more than 1 month.
The question of how to open a separate division of an LLC is directly related to the organization of the workflow, which means hiring employees and concluding employment contracts. Moreover, the employee (s) must constantly be at the workplace, and not come there from time to time. Another important aspect of opening a EP is registration in the internal documents of the enterprise, in the tax and Funds.
What it is
A separate subdivision should be understood as any branch owned by the enterprise and opened by it, which is geographically remote from it and is necessarily equipped with workplaces where employees can perform duties throughout the working day. In fact, you can open a division with one stationary workplace.
A subdivision cannot be considered a separate legal entity, it is not subject to state registration, but at the location the structural unit is placed in without fail for tax registration, the difference is in how the registration takes place. If in order to open a branch or representative office it is necessary to undergo full registration, with making entries in the Unified State Register of Legal Entities, then you can register a regular OP by submitting a notification.
In practice, it may turn out that an LLC needs a remotely located warehouse, for example, to conduct business. But this does not mean that the enterprise will be able to open it, like a business office, if employees do not constantly reside in it. Any of the OPs should reflect the activities of the company.
If a branch or representative office is vested with the right to perform the same functions in whole or in part as the main enterprise, then the usual EP is only a set of jobs (KRM).
The first two types of EP can operate independently, have their own accounting and current account, hire employees, etc., KRM only performs duties, not being able to deal with accounting, make decisions.
Why is it necessary
Society with limited liability is a small business. As a rule, the founders register it at the address of residence of the hired director or rented premises. Initially, it is enough to conduct business with 2-3 hired employees, headed by a director, who is, most often, one of the founders or the only one.
With the expansion of the business, there is a need, for example, for:
- store opening or outlet in another city;
- creation production shop at the place of sale of products without additional costs for transportation;
- organization of a large wholesale warehouse, from where it will be possible to deliver goods to the nearby region;
- office for distribution of promotional products and attracting customers;
- other.
The purpose of opening an EP of one or more is to expand the business and make a profit. The main feature of any EP is a direct dependence on the main enterprise, which imposes an obligation on employees and the manager to fulfill the tasks assigned to them.
Hired to manage a branch or representative office individual- the head (director), the management of the KRM is carried out from the main office. According to the location, the manager gets the right to make decisions, to do everything so that the business develops. If in the future, according to the results of the activity, it is necessary to close the OP, then it can always be opened in another place.
How to open a separate division of an LLC suitable for the USN
In NK, in Art. 346.12 says that an enterprise that opens a structural unit functioning as a branch or representative office loses the opportunity to be on the simplified tax system. It follows from this that an LLC will be able to use the preferential taxation regime if it only opens one or more CRMs.
A feature of a simple EP is that it is fully managed by the main office of the enterprise, transfers documents there for keeping records, does not have a manager, does not hire employees, does not generate and does not submit reports, therefore it should not be registered in budget and extra-budgetary funds. A simple EP is on the simplified tax system if the enterprise itself operates on this system.
If an LLC registers a branch or representative office, it can enable the department to independently manage accounting, which means it can calculate salaries and generate reports. But the OP cannot choose any ST for himself, except for the one on which the enterprise itself is located. For example, an LLC operates on a common CH, which means that its branch too.
In the three codes of the Russian Federation, the legislator states that:
- An isolated branch is a branch that is geographically remote from the place of registration of an LLC and is equipped with stationary workplaces (NK, Art. 11). Although, in fact, an LLC may not be located at the place of registration, i.e. legal address, but rent an office.
- Separate subdivision may be a branch, a representative office of an LLC (CC, Art. 55) or another subdivision.
- Employment contracts or collective agreements with employees are concluded by an LLC to organize work at the location of its OP (Labor Code, Art. 40). First, the enterprise hires workers and only if they are available, organizes stationary jobs.
When opening a branch office, it is necessary to be guided by the provision that it cannot be registered as a branch or representative office if today or tomorrow the enterprise decides to switch to the simplified tax system. But it must be borne in mind that the possibility of opening units does not affect the choice of CH.
The charter of any LLC or other enterprise includes a wording that a legal entity, on the basis of the law, has the right to do this. The presence of certain structural units affects the choice of SN.
The process of opening and registering an EP is different:
- The decision to open a branch (representative office) is made at general meeting by the Board of Founders, an entry is made in the charter, on this basis, you can apply for registration with the tax office. The director of the branch (representative office) is appointed separately, further questions on the work of the EP are resolved on the basis of his orders. The leader acts on the basis of a power of attorney. The activity of such an EP is carried out on the basis of the Regulations on the work, which must be developed, a record of its presence is also made in the charter.
- How to open a separate division of an LLC, which is a KRM? The decision to open a simple EP (KRM) is made by the hired director of the LLC, the branch is opened on the basis of his order, information is not included in the charter. The department should function on the basis of the internal regulations of the enterprise, it is enough to enter information in them that the enterprise has an extensive network, the Regulation on the work of the KRM is not developed separately. To register with the tax office at its location, it is enough for the main enterprise to send a notification. Information about the opening of a simple EP is not included in the charter.
Blank Form P13001:
Other formalities of the procedure
The responsible person, the founder or director, must study the signs of the OP and make sure that he opens exactly such a branch, the work of which will satisfy the requirements of the company. It is mandatory to register a branch (representative office) at the time of opening within 5 days from the date the decision is made and changes are made to the charter.
Notification of the opening of the RM complex can be sent within 30 days from the date it will work. An LLC can open different branches in parallel, for example, some will be branches (representative offices), while others will be simple EPs.
Existing species
Regardless of the fact of the opening of the EP, the property that the LLC will transfer at its location belongs to it, because it is on its balance sheet as an OS and other material values. In the future, a branch (representative office) will be able, being on a dedicated balance, to acquire its property, which a simple OP cannot do.
Depending on the functions that are legally allowed to be assigned to the department, it can be:
Important steps and points
In addition to the functions that can be assigned to the OP, the enterprise must understand that not all tasks can be implemented through one or another department. For example, only a branch receives permission to do business. Like the main enterprise, it can obtain licenses to carry out various kinds activities in 2019.
If the activity of a representative office is subject to licensing, then it cannot be connected with a business. KRM cannot be licensed and do business, but its activities are carried out only within the framework of labor relations through employees.
Branches and representative offices can conduct their activities in the place (settlement, region) where they are located. Simple EPs carry out activities only in the territory (in the office, workshop, warehouse, other premises) where the workplaces are located.
In any case, to open a branch office, you will need to find a room in order to rent or purchase it, the second procedure is longer and has great cost. After resolving the issue with the premises on its base, it is necessary to organize at least 1 workplace that will be suitable for carrying out the types of activities provided for by the enterprise by its charter.
You should first hire employees at the location of the future branch or send them there to work with existing ones. With each new employee, you will have to conclude, for LLC employees to arrange a transfer to another position and to another region.
It is also necessary to resolve an important issue for a branch (representative office) with bookkeeping and availability. In this case, it should be noted that within a month it is necessary to register with the Pension Fund and others. Staging in the Funds of a simple EP is not carried out.
Applying
An application for registration of a SP (branch or representative office) is submitted at the place of registration of the LLC.
Along with it, other documents are submitted, which are pre-certified by a notary:
- minutes of the meeting of founders (participants, board of directors);
- developed Regulations on the work of the EP;
- charter of LLC as amended;
- power of attorney in the name of the head of the branch being opened.
The application is drawn up on a unified form C-09-3-1, it was developed and approved by the Federal Tax Service. It consists of title page, where information about the main enterprise is entered, and a sheet for the branch being opened.
The last sheets must be filled in as much as the OP opens at the same time. A director of an LLC or a representative can submit a document, in which case a power of attorney is issued for him. What else do you need to apply?
Contribute:
| Information about the LLC on the page with the code "0001" |
|
| Information about the OP on the page with the code "0002" |
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The application is certified by the applicant's signature and seal, if any.
Registration algorithm
To create an OP of any type, you can use a simple algorithm of actions:
- Draw up the decision of the meeting of founders and make an entry in the minutes, on the basis of the latter in the charter. Otherwise, when opening the KRM to CEO LLC to issue an order.
- Conclude a lease agreement with the owner of the premises in order to place the EP there, if it is not possible to purchase the property.
- Employ employees and conclude employment contracts with them, but not civil law or work contracts. If it is assumed that the EP will work for 2-3 months, and there is no need for new employees, then by order of the head of the LLC, issue a transfer to certain period employees at the location of the branch.
- Equip stationary workplaces for hired workers.
- Appoint the head of the branch (representative office) by the decision of the founders with the right to sign all documents. When a simple EP opens, it is enough to assign responsibility for its work to a responsible employee who works on the basis of the main office.
- Develop a separate Regulation on work for the branch (representative office). With regard to KRM, make adjustments to internal order OOO.
- Apply to tax documents for registration or send a notice of the opening of the OP.
- Make a decision on opening a current account and maintaining accounting. If necessary, register a branch in all Funds at the location, which occurs after opening an account.
- Get a notification from the tax office that the branch is registered.
The step-by-step instruction for the person who will deal with organizational issues is quite simple, it is much more important to make the right decision when choosing the type of department.
Tax registration
The tax office is obliged to register a new OP within 5 days from the moment the documents are submitted to the territorial office at the location of the main office, i.e. the place of registration of the LLC. Based on the applicant's documents, new information will be entered into and into the database.
In response, the tax authority will send a notification to the enterprise, through the applicant it will be possible to pick up a certified charter, an extract from the Unified State Register of Legal Entities, a notification. Registration of the EP takes place at the place of its location, despite the fact that the documents are submitted to the territorial office of the National Assembly. To register any EP, information from the Unified State Register of Legal Entities is sent to the National Assembly at the place where the branch is located.
The issue with a simple OP is much easier to solve, you only need to notify the tax office of its opening, without providing any documents. When a KRM is opened in a territory that is under the jurisdiction of the same department of the National Assembly as the enterprise, then it is not necessary to register a simple OP.
Each new EP will be assigned a separate code without fail. If an enterprise opens several EPs at once, which should belong to different territorial branches of the National Assembly, but are located within the same municipality, then it is allowed to choose one of the branches for registration.
When maintaining a separate balance sheet, the EP will submit reports at the place of its registration (location). In the future, when it is necessary to make any changes to the work of the EP, it will be necessary to notify the tax authority at the place where the main enterprise is registered within 3 days.
For registration in the PF and others after opening a current account, it is required to submit applications and information to the funds at the location of the open OP within a month and information that:
- The LLC is also registered with the PF and others;
- the branch is registered with the tax office;
- opened a current account;
- other.
Law for other cities
If the location of the new PO is another city, the registration procedure will be the same. Having received from the LLC a package of documents on registration of the branch, the territorial branch of the National Assembly the next day is obliged to notify the National Assembly at the location of the branch office by sending the information in electronic form.
Within 5 days, the branch will be registered, and the LLC will receive a notification by registered mail.
Fundamental differences
Each individual EP can be a participant in civil, tax and labor relations within the framework of the powers assigned to it. It cannot be an independently organized legal structure because it directly depends on the LLC that opened it.
The legal possibilities of a simple EP are very limited, but when it is opened, the enterprise gets the opportunity to be on the simplified tax system. A branch (representative office) can even represent the interests of the LLC in court, but this will require a power of attorney for the head to act as a plaintiff on behalf of the enterprise.
A branch or representative office has the ability to hire employees, KRM cannot do this. None of the EPs can be brought to tax liability on their own without the main enterprise.
Accounting for the activities of a simple EP is carried out only by an LLC; for this, all primary documents are transferred to the main office. A branch or representative office can keep records, calculate salaries, taxes and contributions, make payments, submit reports, etc. - independently.
A newly created LLC quite often does not have its own or rented office and is registered only at a legal address. This may be the home address of the head (founder) or an address with postal and secretarial service. So far, no real activity is being carried out, and correspondence intended for LLC, especially from official bodies, arrives in a timely manner, this situation is normal. But, sooner or later, LLC begins to work, which means that it must “materialize” somewhere in space.
You can get answers to any questions regarding the registration of an LLC and an individual entrepreneur using the service free consultation on business registration:
Sometimes the nature of the business allows it to conduct business from home or with the help of remote workers, but if the LLC opens a store, warehouse, office, production facility, or otherwise begins to conduct business at an address other than legal address, then it is necessary to create and register a separate division.
There is an important condition here - the criterion for creating a separate subdivision is the presence of at least one stationary workplace, and it is recognized as such if created for a period of more than one month. The concept of a workplace is Labor Code(Article 209), from which it can be concluded that:
- an employment contract must be concluded with the employee;
- the workplace is under the control of the employer;
- the employee is constantly in this place in accordance with his official duties.
Based on this, a storage warehouse that does not have a permanent employee will not be considered a separate unit. Vending machines, payment terminals, ATMs, etc. are not considered as such. Remote (remote) workers also do not fall under the concept of a “stationary workplace”, therefore the conclusion of employment contracts with them does not require the creation of a separate unit.
Please note that individual entrepreneurs should not create and register separate divisions. Sole proprietors can operate throughout the territory of the Russian Federation, regardless of the place of state registration. If they work on the UTII regime or have bought a patent, they only have to additionally register with the tax authorities at the place of business.
What should be a separate subdivision in order for the organization to be eligible for the simplified tax system
Article 346.12 of the Tax Code of the Russian Federation prohibits the use of a preferential simplified taxation system for organizations that have branches (the requirement for the absence of a representative office has already been canceled). Of course, the question arises - how to formalize a separate division so that it is not recognized as a branch, while the organization retains the right to? To understand this, you will have to refer to the provisions of three codes: Tax, Civil and Labor:
- The Tax Code (Article 11) gives the concept separate division of the organization as "... any division that is territorially isolated from it, at the location of which stationary workplaces are equipped." At the same time, it does not give a description of the types of a separate subdivision of the Tax Code of the Russian Federation.
- The Civil Code (Article 55) characterizes a separate subdivision only in the form representative offices and branches. That is, it is also unclear from these provisions what else, besides a representative office and a branch, separate subdivisions can be.
- The Labor Code (Article 40) indicates that “... a collective agreement may be concluded in the organization as a whole, in its branches, representative offices and other isolated structural divisions ". Thus, only here it can be seen that separate divisions can be something other than a branch and a representative office.
As a result, we are dealing with some kind of elusive notion of another separate subdivision, therefore, when creating such a subdivision, one should simply avoid the criteria that characterize it as a branch or representative office. These characteristics in the law are more than meager:
- a representative office is a separate subdivision of a legal entity located outside its location, which represents the interests of the legal entity and protects them;
- a branch is a separate subdivision of a legal entity located outside its location and performing all or part of its functions, including the functions of representative offices;
- representative offices and branches are not legal entities, and information about them must be indicated in the Unified State Register of Legal Entities, and therefore in the charter of the organization.
It is no coincidence that we understand this issue in such detail, because non-compliance with these requirements (sometimes implicit) can deprive an organization of the opportunity to work on the simplified tax system, and unexpectedly. For example, the head believes that the created separate subdivision is not a branch, so the organization continues to work on a simplified system, although it no longer has the right to do so.
In such cases, the organization will be recognized as operating from the beginning of the quarter in which a separate subdivision was created that has signs of a branch. And the loss of the right to tax leads to the need to accrue all taxes of the general regime: income tax, property tax, VAT, and it is with the latter that the most problems can arise. VAT must be charged on the value of all goods sold, works and services for the current quarter, and if the buyer or customer refuses to pay extra, then the tax will have to be paid at their own expense.
Signs of a branch and representative office
Considering what backfire for the payer of the simplified tax system, recognition of a separate subdivision as a branch can lead, you need to know what its signs may be:
- The fact of creating and starting the activities of a branch or representative office is reflected in the charter of the LLC (from 2016 this is not necessary).
- The parent organization approved the regulation on the branch or representative office.
- A head of a separate subdivision has been appointed, who acts by proxy.
- Internal regulations regulating the activities of a separate subdivision, as a branch or representative office.
- A branch or representative office represents the interests of the parent organization before third parties and defends its interests, for example, in court.
Thus, in order to retain the right to the simplified tax system, it is necessary to ensure that the created separate subdivision does not have the indicated signs of a branch. In addition, it is necessary to indicate in the Regulations on a separate subdivision that it does not have the status of a branch or representative office and does not economic activity organization in full (for example, a store is engaged only in the storage, sale and delivery of goods). The creation of a separate subdivision is within the competence of the head of the LLC; it is not necessary to enter information about this into the charter.
We inform the tax office about the opening of a separate subdivision
According to article 83(1) of the Tax Code of the Russian Federation, organizations must register for tax purposes at the location of each of their separate subdivisions. An additional requirement to report to the tax inspectorate about all separate subdivisions (within a month) and about changes in information about them (within three days) is established by Article 23 (3) of the Tax Code of the Russian Federation.
Thus, when creating a separate subdivision (not being a branch or representative office), an LLC must:
- report this to your tax office, approved by order of the Federal Tax Service of Russia dated 09.06.2011 No. ММВ-7-6 / [email protected];
- register with the tax authorities at the location of this subdivision, if it is established in the territory under the jurisdiction of a different tax inspectorate in which the head office is registered.
The tax inspectorate at the place of registration of the head office, to which notification No. С-09-3-1 was submitted, she herself reports this fact to the Federal Tax Service at the location of the created separate subdivision(Article 83(4) of the Tax Code of the Russian Federation), that is, an LLC is not required to register independently.
If several separate divisions are in one municipality, but in the territories under the jurisdiction of different tax inspectorates, registration can be carried out at the location of one of the separate divisions, at the choice of the organization. For example, if in one city an LLC has several stores open in the territories of different Federal Tax Service, you do not need to register with each of them, you can select one inspection by indicating this choice in the message.
When changing the address of a separate subdivision, it is not necessary to close and reopen it (such an obligation existed until September 2010), but only submit a message to the tax office at the place of registration of the subdivision indicating the new address.
Registration in funds
Earlier registration in pension fund when opening a separate subdivision, it was carried out on the basis of an application from an LLC, now this data is automatically transmitted by the tax office. However, the obligation to independently register with the FSS remains.
To register with the FSS, notarized copies are submitted:
- tax registration certificates;
- certificate of state registration of a legal entity or a record sheet of the Unified State Register of Legal Entities;
- notification of registration as an insurer of the parent organization, issued by the regional branch of the FSS;
- information letter of the state statistics service (Rosstat);
- notifications of tax registration of a separate subdivision;
- the opening order, the Regulations on a separate subdivision, documents confirming that the separate subdivision has a separate balance sheet and current account;
- original .
Pay a single simplified tax and insurance premiums for employees employed in a separate subdivision, it is necessary at the place of registration of the parent organization, and personal income tax from these employees must be withheld at the location of the separate subdivision.
Responsibility for violation of the procedure for registration of a separate subdivision
Violation of the deadlines for filing messages and applications for registration of a separate subdivision entails the following penalties:
- violation of the deadline for filing an application for registration - 10 thousand rubles (Article 116 of the Tax Code of the Russian Federation);
- conducting activities by a separate subdivision without registration - a fine in the amount of 10 percent of the income received as a result of such activities, but not less than 40 thousand rubles (Article 116 of the Tax Code of the Russian Federation);
- violation of the registration period with the FSS - 5 thousand rubles or 10 thousand rubles if the violation lasts more than 90 calendar days(Article 19 No. 125-FZ of 07/24/98).
Action plan when creating a separate subdivision
- Determine that the organization creates a separate division that is not a branch or representative office (because they have a different registration procedure).
- Make sure that the created workplace is stationary, that is, created for a period of more than a month, the employee is constantly present at it, and this is due to the performance of his official duties. If the employee is remote, it is not required to create a separate subdivision.
- Within a month after the creation of a stationary workplace, inform the tax office where the LLC is registered about the creation of a separate subdivision in the form No. C-09-3-1.
- Register with the Social Security Fund within 30 days.
- If necessary, notify within three days of a change in the address or name of a separate subdivision to the Federal Tax Service at the place of registration of the subdivision in the form No. C-09-3-1.
The procedure for creating a separate division of LLC 2018 - 2019 - the rules that govern the expansion of the activities of a legal entity. Business development, the opening of new sales outlets, the need to transfer dangerous or “dirty” production to another location are cases when it is necessary to create a separate division of an LLC.
How to create a separate division of an LLC - types of divisions
The legislation provides for the possibility of creating three types of separate divisions:
- branch;
- representation;
- a separate subdivision with at least one workplace.
The definition of a separate subdivision is given in Art. 11 of the Tax Code of the Russian Federation (TC RF). Its symptoms are listed there:
- this part of the organization is territorially isolated from it;
- has at least one workplace;
- jobs created for a period of more than one month.
This definition includes any building, office, institution for social service workers in the presence of the above characteristics. Russian corporate law requires legal entities to formalize these structural components of the organization.
The concepts of a branch and a representative office are contained in Art. 55 of the Civil Code of the Russian Federation (CC RF). The law understands a branch as such a part of a legal entity that is located outside its location and has the right to perform all the functions of a legal entity. A representative office has fewer rights than a branch - it can only represent and protect the interests of a legal entity. For more information about the types and features of separate divisions, see the article Separate division of a legal entity - 2018 - 2019.
How to open a separate division of LLC in 2018 - 2019
The easiest way to expand your business is to create a separate division of LLC. In accordance with Art. 11 of the Tax Code of the Russian Federation, even one workplace that exists outside the legal address of the organization must be formalized as a separate division. Responsibility for failure to fulfill the obligation to report to the tax office information about the established separate subdivisions is provided for in Art. 126 of the Tax Code of the Russian Federation (clause 23 of the Review of Judicial Practice of the Supreme Court of the Russian Federation of November 15, 2017 No. 4). Exception to the rule: employees sent on a business trip, remote workers. The involvement of such persons in labor is not a reason for creating a separate subdivision.
The management of a legal entity must register a separate subdivision within a month after the fact of its occurrence. The date of creation in this case can be considered the day of employment of the first employee.
Let us consider in detail how to open a separate division of an LLC in 2018 - 2019. To do this, the management of the legal entity must take the following actions:
- to equip a stationary workplace outside the walls of the LLC;
- fill out form С-09-3-1;
- transfer the completed form to the IFTS at the place where the separate subdivision appears;
- From 01/01/2017, it is necessary to inform the tax authority about empowering the EP with the authority to make payments to individuals (clause 7, clause 3.4, article 23 of the Tax Code of the Russian Federation). The form of such a message was approved by the Order of the Federal Tax Service dated January 10, 2017 No. MMV-7-14 / [email protected] In this case, the payment of insurance premiums and reporting on payments made by the EP is made at its location (clauses 7, 11, article 431 of the Tax Code of the Russian Federation).
The last point is not relevant for all separate divisions. Only those separate subdivisions that make payments to individuals are required to register with these funds.
Regulations on a separate division of an LLC that is not a branch (sample document)
When creating a separate division, it is desirable to draw up a provision on a separate division of an LLC. If the obligatory nature of the provision on a branch / representative office is stipulated in Part 3 of Art. 55 of the Civil Code of the Russian Federation, then such a rule is not provided for other separate divisions.
At the same time, in the provision on a separate subdivision that is not a branch or representative office, it is possible to fix important features- for example, the types of activities and the specifics of work, the procedure for managing the unit, methods of monitoring its activities, etc.
A sample of such a provision can be downloaded from the link: Regulation on a separate subdivision - sample.
Creation and registration of an LLC branch in another city: step-by-step instructions -2018 - 2019
Expanding the geographical boundaries of the business, the company's management begins to think about how to open a branch of an LLC in another city. Registering a branch is in many ways similar to setting up a limited liability company itself. The main reason for this: the branch has the right to carry out production and trading activity on a par with the parent company. Therefore, when opening a branch of an LLC, it must be registered with the tax authorities, the Pension Fund of the Russian Federation and the FSS.
To register a branch of an LLC, the following steps must be taken:
- hold a meeting of LLC participants in order to decide on the establishment of a branch;
- prepare regulations for a new branch;
- enter information about the branch into the charter of the LLC;
- approve at the meeting of the company's members new edition charter and regulation on the establishment of a branch;
- register with the Federal Tax Service of the Russian Federation amendments to the charter;
- wait for notification from the Federal Tax Service of the Russian Federation about making an entry in the Unified State Register of Legal Entities;
- register the branch with the tax office;
- appoint a branch manager;
- receive a letter from Rosstat about assigning statistics codes to the branch.
To register changes in the tax office, Art. 17 of the Law "On State Registration of Legal Entities and individual entrepreneurs» dated 08.08.2001 No. 129-FZ requires the following documents to be submitted:
- application in form No. Р13001;
- the decision to amend the constituent documentation of the LLC;
- receipt for payment of state duty. From 01/01/2019 when submitting documents for registration of changes in electronic form payment of state duty is not required (see clause 32 of article 333.35 of the Tax Code of the Russian Federation, introduced by law No. 234-FZ of July 29, 2018).
- changes in founding documents(how to issue them - in the article Procedure for amending the charter of an LLC);
Currently, registration with extra-budgetary funds and Rosstat is automatic, these departments independently exchange information with each other.
After carrying out all the procedures described above, the company's management can open a separate current account for the branch.
Opening a representative office of LLC in another city
Another option for creating a separate subdivision is to register a representative office of an LLC. This option is relevant if the management of the organization does not plan to conduct production or commercial activities in another city.
The procedure for creating a representative office practically does not differ from the procedure for registering a branch. To open a representative office of an LLC in another city, you must:
- hold a meeting of the company's participants to resolve the issue of opening a representative office;
- draw up a regulation on representation;
- to include information on representation in the charter of the organization;
- hold a meeting of LLC participants in order to approve the provision on representation and amendments to the company's charter;
- register changes in the charter with the tax office;
- appoint a director of the representative office.
Registration with the FIU and the FSS is also automatic, as is the registration of an LLC branch. Through the representative office, the LLC will not be able to carry out any actual actions: the production of products, the sale of goods, the provision of services. The law does not provide for penalties for violating this rule. Nevertheless, the management of a legal entity should remember: the main function of a separate subdivision is to represent the interests of an LLC in another city.
Choose the form of a separate division
Creating a branch or representative office is a procedure that requires additional material costs for registration in government bodies, organization of independent accounting and maintenance of the administrative apparatus of the newly created organization.
In addition, companies that have created a separate subdivision in the form of a branch or representative office lose the right to use the simplified taxation system (subclause 1, clause 3, article 346.13 of the Tax Code of the Russian Federation). In this regard, the creation of a separate subdivision, the concept of which is given in Art. 11 of the Tax Code of the Russian Federation, has the following advantages:
- simple registration;
- no need to change constituent documents;
- preservation of the organization's right to a simplified taxation system.
The creation of a separate division in the form of a branch or representative office is relevant only if this part of the organization will have a large number of employees and a complex structure.
Thus, the creation of a separate subdivision is carried out by organizing jobs outside the territory of the organization. Information about a subdivision in the form of a branch or representative office is entered in the charter of the LLC, as well as in the Unified State Register of Legal Entities. Information about another separate subdivision is added only to the Unified State Register of Legal Entities. Registration of a branch at the place of its establishment in the registering and tax authorities is carried out by the LLC, registration with the funds - through interdepartmental interaction between the funds and the Federal Tax Service.
