Separate subdivision: create and register. What is a separate division of the organization

A.A. Nazarov

1. General Provisions

The concept of "separate subdivision" is used as in the Civil Code Russian Federation(Civil Code of the Russian Federation), and in the Tax Code of the Russian Federation (TC RF).

Therefore, in order to avoid mistakes when applying the above concept for profit tax purposes, it is advisable to identify differences between the concept of "separate subdivision of a legal entity" used in the Civil Code of the Russian Federation and the concept of "separate subdivision of an organization" used in the Tax Code of the Russian Federation.

2. Definition of the concept of "separate subdivision" in civil law

2.1. Definition of the concepts "representative office" and "branch"

In accordance with paragraph 1 of Art. 55 of the Civil Code of the Russian Federation, 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.

According to paragraph 2 of Art. 55 of the Civil Code of the Russian Federation, 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 a representative office.

Thus, according to the Civil Code of the Russian Federation, representative offices and branches are two different types (varieties) of separate subdivisions of a legal entity located outside its location, which represent the interests of a legal entity and protect them or perform all or part of its functions, including the functions of a representative office. .

Other types of separate subdivisions of a legal entity are not established in the Civil Code of the Russian Federation, that is, the list of separate subdivisions of a legal entity is closed.

At the same time, we draw the attention of the readers of the journal to the following.

The concepts of "subdivision" and "separate subdivision" are not defined in the Civil Code of the Russian Federation.

Considering the provisions of paragraphs 1 and 2 of Art. 55 of the Civil Code of the Russian Federation, two signs of representation can be distinguished:

1) location outside the location of the legal entity;

2) implementation of the functions of the organization.

The difference between a representative office and a branch is that these divisions of the organization perform different functions. A branch can perform all the functions of an organization, and a representative office - only some of them (represent the interests of the organization and protect them).

This means that the representative office is, in essence, one of the types of branch.

A common feature of both varieties of separate divisions of a legal entity is their isolation.

Obviously, the isolation of a subdivision of a legal entity means its location outside the location of this legal entity.

In accordance with paragraphs 1 and 2 of Art. 55 of the Civil Code of the Russian Federation, the main feature of separate divisions of an organization is their location outside the location of the organization itself.

What is the status of the above separate divisions?

In accordance with paragraph 3 of Art. 55 of the Civil Code of the Russian Federation representative offices and branches are not legal entities. They are endowed with the property of those who created them. legal entity and act on the basis of the provisions approved by him.

Heads of representative offices and branches are appointed by a legal entity and act on the basis of its power of attorney.

Representative offices and branches must be indicated in the constituent documents of the legal entity that created them.

Thus, we can conclude that the necessary attributes of any separate subdivision include:

Property;

Availability of Regulations on the subdivision;

An indication in the constituent documents of the existence of a subdivision;

Supervisor.

2.2. Which structural divisions of the organization are separate divisions

The Civil Code of the Russian Federation does not define the concept of "location outside the location". In this case, obviously, we are talking about the fact that the location of a separate subdivision of a legal entity does not coincide with the location of the legal entity itself.

How in Civil Code of the Russian Federation the location of the legal entity is determined? What documents contain information about the location of a legal entity?

According to paragraph 2 of Art. 54 of the Civil Code of the Russian Federation, the location of a legal entity is determined by the place of its state registration. State registration of a legal entity is carried out at the location of its permanent executive body, and in the absence of a permanent executive body - another body or person entitled to act on behalf of the legal entity without a power of attorney.

Thus, the location of the legal entity coincides with the location of its permanent executive body, and in the absence of a permanent executive body, another body or person entitled to act on behalf of the legal entity without a power of attorney. In this case, only in the absence of a permanent executive body, the location of the legal entity coincides with the location of another body or person entitled to act on behalf of the legal entity without a power of attorney.

In any case, the location of the legal entity coincides with the place of its state registration.

The Civil Code of the Russian Federation does not define the concept of "place of state registration of a legal entity".

In accordance with Art. 1 of the Federal Law of 08.08.2001 N 129-FZ "On State Registration of Legal Entities and Individual Entrepreneurs" (hereinafter - Law N 129-FZ) this Law regulates relations arising in connection with the state registration of legal entities during their creation, reorganization and liquidation , when making changes to their founding documents, in connection with state registration individuals as individual entrepreneurs and state registration upon termination of activities by individuals as individual entrepreneurs, as well as in connection with the maintenance of state registers - the unified state register of legal entities and the unified state register of individual entrepreneurs.

In this regard, when determining the place of state registration of a legal entity and the location of its branches and representative offices, readers of the journal should be guided by Law N 129-FZ.

Subparagraphs "c" and "n" of paragraph 1 of Art. 5 of Law N 129-FZ establishes that the unified state register of legal entities contains, in particular, the following information about the legal entity:

The address (location) of the permanent executive body of the legal entity (in the absence of a permanent executive body of the legal entity - another body or person entitled to act on behalf of the legal entity without a power of attorney), at which communication with the legal entity is carried out;

Information about the branches and representations of the legal entity.

Thus, the location of a legal entity is understood as the address of the permanent executive body of the legal entity (in the absence of a permanent executive body of the legal entity - another body or person entitled to act on behalf of the legal entity without a power of attorney), which is used to communicate with the legal entity .

The location of a separate subdivision of a legal entity should not coincide with the location of the legal entity itself.

At the same time, the Civil Code of the Russian Federation and Law N 129-FZ do not define the concept of "location of a separate subdivision of an organization."

Considering the provisions of paragraph 3 of Art. 55 of the Civil Code of the Russian Federation, it can be assumed that the location of a separate subdivision of a legal entity is understood as the location of either the property of the above subdivision or its head.

Obviously, the concept of "location" coincides with the concept of "address", and such is the postal address.

In this regard, if, for example, the address of the permanent executive body of a legal entity (plant) is Ivanovsk, Ivanova street, building 1, building 1, the address of workshop No. 1 of the plant is Ivanovsk, Ivanova street, building 1, building 2 , and the address of shop No. 2 of the plant is Ivanovsk, Ivanova street, house 1, building 3, then shops No. 1 and 2 can be considered as separate divisions of this organization (plant). But should they be treated as such and, therefore, listed in the founding documents?

From Art. 55 of the Civil Code of the Russian Federation, it can be concluded that the organization's assignment of a structural unit to its separate subdivisions is the right of this organization. However, if a structural subdivision that is located outside the location of the organization (a necessary attribute of a separate subdivision) is classified by the organization as separate subdivisions, it must be named in the constituent documents of the organization.

When applying the norm established by subparagraph "c" of paragraph 1 of Art. 5 of Law N 129-FZ, the following questions arise.

How are the permanent executive bodies of a legal entity determined?

In part one of the Civil Code of the Russian Federation, the concept of "executive bodies of a legal entity" is used in articles devoted to the management of only three certain types of organizations (companies with limited liability, joint-stock companies, production cooperatives).

Limited Liability Company. Created in a limited liability company executive agency[collegiate and (or) sole], carrying out the current management of its activities and accountable to the general meeting of its participants. sole body management of the company can also be elected not from among its participants (clause 1, article 91 of the Civil Code of the Russian Federation).

The competence of the management bodies of the company, as well as the procedure for making decisions and speaking on behalf of the company, are determined in accordance with the Civil Code of the Russian Federation, the law on limited liability companies and the charter of the company (clause 2, article 91 of the Civil Code of the Russian Federation).

Thus, a collegial and (or) sole executive body can act as the executive body of a limited liability company. Consequently, two executive bodies (collegiate and sole) can function simultaneously in one society.

Where is information about the executive bodies of a limited liability company?

The constituent documents of a limited liability company must contain, in addition to those specified in paragraph 2 of Art. 52 of the Civil Code of the Russian Federation, the following information: conditions on the size authorized capital society; the size of the share of each participant; the size, composition, terms and procedure for making contributions by participants; responsibility of participants for violation of obligations to make contributions; the composition and competence of the management bodies of the company and the procedure for making decisions by them, including decisions taken unanimously or by a qualified majority of votes; other information provided for by the law on limited liability companies (clause 2, article 89 of the Civil Code of the Russian Federation).

Thus, information about the executive bodies of a limited liability company is given in its constituent documents.

Joint-Stock Company. The executive body of a joint stock company may be collegiate (board, directorate) and (or) sole (director, CEO). He carries out the current management of the company's activities and is accountable to the board of directors (supervisory board) and the general meeting of shareholders.

By decision of the general meeting of shareholders, the powers of the executive body of the company may be transferred under an agreement to another commercial organization or an individual entrepreneur (manager) (clause 3, article 103 of the Civil Code of the Russian Federation).

The competence of the management bodies of a joint-stock company, as well as the procedure for their decision-making and speaking on behalf of the company, are determined in accordance with the Civil Code of the Russian Federation by the law on joint-stock companies and the charter of the company (clause 4, article 103 of the Civil Code of the Russian Federation).

Thus, a collegial executive body (board, directorate) [and (or) sole executive body (director, general director)] or a commercial organization [or an individual entrepreneur (manager)], to which the powers of the executive body. Consequently, in one joint-stock company two executive bodies (collegiate and sole) can function simultaneously.

The charter of a joint-stock company must contain, in addition to those specified in paragraph 2 of Art. 52 of the Civil Code of the Russian Federation, the following information: conditions on the categories of shares issued by the company, their nominal value and quantity; the size of the authorized capital of the company; shareholder rights; the composition and competence of the management bodies of the company and the procedure for making decisions by them, including on issues decisions on which are taken unanimously or by a qualified majority of votes (clause 3 of article 98 of the Civil Code of the Russian Federation).

Thus, information on the composition and competence of the governing bodies of a joint-stock company is contained in the charter of this company.

Production cooperative. The executive bodies of the production cooperative are the board and (or) its chairman, who carry out the current management of the cooperative's activities and are accountable to the supervisory board and the general meeting of members of the cooperative.

Members supervisory board and the board of the cooperative, as well as the chairman of the cooperative can only be members of the cooperative. A member of a cooperative cannot simultaneously be a member of the supervisory board and a member of the board or chairman of the cooperative (clause 1, article 110 of the Civil Code of the Russian Federation).

The competence of the management bodies of the cooperative and the procedure for making decisions by them are established by law and the charter of the cooperative (clause 2, article 110 of the Civil Code of the Russian Federation).

Thus, the board and (or) its chairman can act as the executive bodies of a production cooperative. Consequently, two executive bodies [the board and (or) its chairman] can function simultaneously in one production cooperative.

Where is information about the executive bodies of the production cooperative?

The charter of the cooperative must contain, in addition to those specified in paragraph 2 of Art. 52 of the Civil Code of the Russian Federation, the following information: conditions on the amount of share contributions of members of the cooperative; the composition and procedure for making share contributions by members of the cooperative and their liability for violation of the obligation to make share contributions; the nature and procedure for the labor participation of its members in the activities of the cooperative and their liability for violation of the obligation for personal labor participation; the procedure for distributing profits and losses of the cooperative; the amount and conditions of subsidiary liability of its members for the debts of the cooperative; the composition and competence of the management bodies of the cooperative and the procedure for their decision-making, including on issues, decisions on which are taken unanimously or by a qualified majority of votes (clause 2, article 108 of the Civil Code of the Russian Federation).

Thus, information about the executive bodies of a production cooperative is given in the charter of the cooperative.

At the same time, we draw the attention of the readers of the journal to the following.

The concept of "permanent executive body of a legal entity" is not defined in the Civil Code of the Russian Federation.

This concept is also absent in the relevant laws, that is, in the Federal Laws of 08.02.1998 N 14-FZ "On Limited Liability Companies", of 26.12.1995 N 208-FZ "On Joint-Stock Companies" and of 08.05.1996 N 41- Federal Law "On production cooperatives".

At the same time, as mentioned earlier, in limited liability companies, joint-stock companies and cooperatives, the functioning of several executive bodies of a legal entity is allowed.

In this regard, there is a need to allocate a permanent executive body of a legal entity.

According to paragraph 1 of Art. 53 of the Civil Code of the Russian Federation, a legal entity acquires civil rights and assumes civil obligations through its bodies acting in accordance with the law, other legal acts and constituent documents.

The procedure for appointing or electing bodies of a legal entity is established by law and constituent documents.

This may mean that if the procedure for referring the executive body of a legal entity to its permanent executive bodies is not defined by law, then the organization itself has the right to establish this procedure in the constituent documents.

If the procedure for appointing or electing a permanent executive body (it can be only one) is not defined (neither by law, nor by constituent documents), then on the basis of subparagraph "c" of paragraph 1 of Art. 5 of Law N 129-FZ, the address (location) of an organization means the address (location) of another body or person entitled to act on behalf of a legal entity without a power of attorney, at which communication with a legal entity is carried out.

What other bodies and persons have the right to act on behalf of a legal entity without a power of attorney?

In cases provided for by law, a legal entity may acquire civil rights and assume civil obligations through its participants (clause 2, article 53 of the Civil Code of the Russian Federation).

A person who, by virtue of law or on the basis of the constituent documents of a legal entity, acts on its behalf, must act in the interests of the legal entity it represents in good faith and reasonably. It is obliged, at the request of the founders (participants) of the legal entity, unless otherwise provided by law or contract, to compensate for the losses caused by it to the legal entity (Clause 3, Article 53 of the Civil Code of the Russian Federation).

Thus, the Civil Code of the Russian Federation determines the persons and bodies whose location can be recognized as the location of the organization.

When applying the norm established by subparagraph "n" of paragraph 1 of Art. 5 of Law N 129-FZ, the question arises related to the fact that this regulatory act does not establish a list of information contained in the unified state register about branches and representative offices of a legal entity. Does the above information include information about the location of branches and representative offices of a legal entity? It does not follow from the provisions of Law N 129-FZ that this information is mandatory.

Thus, there may be cases in which the unified state register does not contain information about the location of branches and representative offices of a legal entity.

In accordance with paragraph 2 of Art. 52 of the Civil Code of the Russian Federation, the constituent documents of a legal entity must contain the name of the legal entity, its location, the procedure for managing the activities of the legal entity, and also contain other information provided for by law for legal entities of the corresponding type.

At the same time, paragraph 3 of Art. 52 of the Civil Code of the Russian Federation provides that changes made to the constituent documents become effective for third parties from the moment of state registration of these changes, and in cases established by law, from the moment the body responsible for state registration is notified of such changes. However, legal entities and their founders (participants) do not have the right to refer to the absence of registration of such changes in relations with third parties that acted subject to these changes.

Thus, if the law for legal entities of the corresponding type does not provide for the mandatory presence in the constituent documents of a legal entity of information about the location of its branches and representative offices, the organization has the right not to provide this information in its constituent documents.

An indication of the need to reflect in the constituent documents of the organization information about the location of the organization (as opposed to information about the addresses of separate subdivisions) is also contained in Art. 54 of the Civil Code of the Russian Federation, according to paragraph 3 of which the name and location of a legal entity are indicated in its constituent documents.

Consequently, in some cases, even in the constituent documents of the organization, the addresses of separate divisions of the organization may not be indicated.

In passing, another question arises.

What are the founding documents of a legal entity?

Paragraph 1 of Art. 52 of the Civil Code of the Russian Federation provides that a legal entity acts on the basis of a charter, or memorandum of association and the charter, or only the memorandum of association. In cases provided for by law, a legal entity that is not commercial organization, can act on the basis of general position about organizations of this type.

The constituent agreement of a legal entity is concluded, and the charter is approved by its founders (participants).

A legal entity created in accordance with the Civil Code of the Russian Federation by one founder acts on the basis of a charter approved by this founder.

Thus, information about the location of separate subdivisions can be given in the above documents.

All of the above refers to the concept of "separate subdivision" used in civil law.

3. Definition of the concept of "separate subdivision" in the tax legislation

According to paragraph 2 of Art. 11 of the Tax Code of the Russian Federation for the purposes of this Code, in particular, the following concept is used, according to which a separate subdivision of an organization is any subdivision that is territorially isolated from it, at the location of which stationary workplaces are equipped. The recognition of a separate subdivision of the organization as such is carried out regardless of whether its creation is reflected or not reflected in the constituent or other organizational and administrative documents of the organization, and on the powers vested in the above subdivision. Wherein workplace is considered stationary if it is created for a period of more than one month.

In addition, in paragraph 2 of Art. 11 of the Tax Code of the Russian Federation defines the concept of "location of a separate subdivision of a Russian organization" (the place where this organization carries out activities through its separate subdivision).

Thus, according to the Tax Code of the Russian Federation, a separate subdivision of an organization is understood to be any subdivision that is territorially isolated from it, at the location of which workplaces created for a period of more than one month are equipped.

At the same time, the location of a separate subdivision of a Russian organization does not mean the place where stationary workplaces are equipped, but the place where this organization carries out its activities.

So, the concept of "separate subdivision of the organization" is revealed using the following concepts:

Territorial isolation;

Workplace;

Equipped workplace.

The concept of "territorial isolation of a subdivision" is not established either in the Tax Code of the Russian Federation or the Civil Code of the Russian Federation.

First of all, it is necessary to define what is meant by the concept of "territorial isolation".

The explanatory dictionary of the Russian language gives definitions to the corresponding words and gives examples of their use:

Territory - limited land space (factory territory);

Separate - standing apart, separate (to occupy a separate position).

In this case, the space is defined, in particular, as:

1) length, a place not limited by visible limits (steppe spaces);

2) a gap between something, a place where something fits (free space between a window and a door).

Thus, space can be defined as a place that is not limited (first definition) or limited by visible limits (second definition).

We should use the second definition of space, because when we define territory, we are talking about a limited space.

Therefore, we can conclude that, according to the Tax Code of the Russian Federation, an organization and its separate subdivision are located in different territories (limited land spaces), that is, on different (non-adjacent) land plots.

For example, if on one land plot there is not only a permanent executive body of an organization that is a plant (plant management), but also a lot of factory buildings (workshops), then these shops cannot be recognized as separate divisions of the organization. However, if another part of the workshops of the plant is located on a different (non-adjacent) land plot (between these plots there is, for example, a residential area), then all this other part of the workshops is recognized as a separate subdivision of the organization.

At the same time, we draw the attention of the readers of the journal to the following. In Chapter 25 of the Tax Code of the Russian Federation, in addition to the concept of "territory", the concept of "water area" is used.

So, in accordance with paragraph 3 of Art. 261 of the Tax Code of the Russian Federation, the procedure provided for by the above paragraph of Art. 261 of the Code applies to expenditures for the development of natural resources relating to a part of the territory (water area) provided for by the relevant license. At the same time, the taxpayer must keep separate records of such expenses for the relevant part of the territory (water area).

In accordance with paragraph 4 of Art. 308 of the Tax Code of the Russian Federation, the continuation or resumption after a break of work at a construction site after signing the act specified in paragraph 3 of the above article of the Code, leads to the addition of the period of ongoing or resumed work and the break between works to the total period of existence construction site only if the territory (water area) of the resumed works is the territory (water area) of previously stopped works or is closely adjacent to it.

Expenses for the development of natural resources, provided for in paragraph 1 of Art. 261 of the Tax Code of the Russian Federation, are given in analytical registers tax accounting separately for each subsoil plot (deposit) or land plot (water area) reflected in the license agreement of the taxpayer (license for the right to use subsoil) (clause 2, article 325 of the Tax Code of the Russian Federation).

So, in the case of the development of natural resources (for example, in oil production), we can talk about both areas of the territory and areas of the water area.

According to the above explanatory dictionary, the water area is the surface of a body of water, a reservoir; water area (port water area, world ocean water area).

Thus, Chapter 25 of the Tax Code of the Russian Federation deals with both land and water areas, and, consequently, territorial and water area isolation.

This means, in particular, that the oil production carried out by the organization in various parts of the water area is carried out by its various separate subdivisions.

It remains to define the not established by the Tax Code of the Russian Federation the concepts of "workplace" and "equipped workplace" contained in the definition of a separate division of the organization.

In accordance with paragraph 1 of Art. 11 of the Tax Code of the Russian Federation, the institutions, concepts and terms of civil, family and other branches of the legislation of the Russian Federation used in this Code are applied in the sense in which they are used in these branches of legislation, unless otherwise provided by the Tax Code of the Russian Federation.

The concept of "workplace" is associated with labor relations.

According to Art. 5 of the Labor Code of the Russian Federation (Labor Code of the Russian Federation) regulation labor relations and other directly related relations in accordance with the Constitution of the Russian Federation, federal constitutional laws is carried out by labor legislation (including labor protection legislation) and other regulatory legal acts containing norms labor law, namely:

Other federal laws;

Decrees of the President of the Russian Federation;

Decrees of the Government of the Russian Federation and regulatory legal acts of federal executive bodies;

Constitutions (charters), laws and other regulatory legal acts of the subjects of the Russian Federation;

Acts of bodies local government and local regulations containing labor law norms.

The norms of labor law contained in other laws must comply with the Labor Code of the Russian Federation.

This means that the concept of "workplace" used in the Tax Code of the Russian Federation is used in the sense in which it is used in labor legislation.

Article 209 of the Labor Code of the Russian Federation establishes that a workplace is a place where an employee must be or where he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer.

Thus, the concept of "workplace" is not associated with the presence of any property (including depreciable property) necessary, in particular, for work. At the same time, we draw the attention of the readers of the magazine to the fact that the Labor Code of the Russian Federation does not specify what exactly is meant by the control of the employer.

What is meant by equipped workstations?

The answer to this question is important, in particular, when determining the date of creation of the workplace, for example, if the organization rents a production facility.

According to Art. 22 of the Labor Code of the Russian Federation, the employer is obliged, among other things, to provide employees with equipment, tools, technical documentation and other means necessary for the performance of their labor duties.

In addition, Art. 163 of the Labor Code of the Russian Federation provides that the employer is obliged to provide normal conditions for the employees to fulfill the production standards. Such conditions, in particular, include the good condition of premises, structures, machines, technological equipment and equipment.

In this regard, workplace equipment should be understood as the provision (by the employer) of employees with premises, structures, machines, technological equipment, equipment, tools, technical documentation and other means necessary for the performance of their labor duties.

The concept of "separate subdivision of the organization" is used in several articles of Chapter 25 of the Tax Code of the Russian Federation.

In particular, in accordance with the first part of Art. 275.1 of the Tax Code of the Russian Federation, taxpayers, which include separate divisions that carry out activities related to the use of facilities of service industries and farms, determine the tax base for the above activities separately from the tax base for other types of activities.

In doing so, we note the following. According to paragraph 25 of Art. 1 of the Federal Law of 06.06.2005 N 58-FZ "On Amendments to Part Two of the Tax Code of the Russian Federation and Certain Other Legislative Acts of the Russian Federation on Taxes and Fees" in part one of Art. 275.1 of the Tax Code of the Russian Federation, the word "isolated" is excluded.

4. The main differences between the concept of "separate subdivision" in civil and tax legislation

Legal entities have the right to create branches and open representative offices on the territory of the Russian Federation and abroad.

A branch and a representative office are subdivisions of a legal entity, its constituent parts. These subdivisions must be organizationally separate within the legal entity and must be located outside its location.

The difference between the above divisions from each other lies in the range of tasks they perform. The branch performs the functions of a legal entity, which should be understood as the types of production and other activities of a legal entity that it has the right to engage in in accordance with the law and its constituent documents. The tasks of the representation are limited. They consist in the representation and protection of the interests of a legal entity, that is, in the functions carried out within the framework of the institution of representation by virtue of an authority based on a power of attorney.

To perform their functions, a branch and a representative office shall be endowed with the necessary property by the legal entity that created them. This property is assigned to the relevant branch or representative office, but is either owned by a legal entity or belongs to a legal entity on a different legal basis. In accounting, the above property is reflected simultaneously on the separate balance sheet of the branch or representative office, and on the balance sheet of the legal entity. In contrast, a division of an organization that is a separate division in accordance with the Tax Code of the Russian Federation may not have a separate balance sheet.

According to the current tax legislation, branches and representative offices are not independent payers of taxes and (or) fees. At the same time, in the manner prescribed by the Tax Code of the Russian Federation, branches and representative offices fulfill the obligations of the organization that created them to pay taxes and fees at the location of these branches and representative offices (according to part two of Article 19 of the Tax Code of the Russian Federation in the manner prescribed by this Code, branches and other separate subdivisions of Russian organizations perform the duties of these organizations for the payment of taxes and fees at the location of these branches and other separate subdivisions).

In accordance with the requirements of the Civil Code of the Russian Federation, the head of a branch and the head of a representative office are appointed by the body of a legal entity authorized to do so in accordance with its constituent documents. The above requirement for subdivisions that are separate in accordance with the Tax Code of the Russian Federation is absent.

All separate subdivisions of a legal entity that meet the criteria provided for by the Civil Code of the Russian Federation, regardless of their name (branch, agency, correspondent bureau, etc.), are subject to the legal regime of either a representative office or a branch.

For tax purposes, differences in legal regime representative offices and branches do not matter.

In accordance with the Civil Code of the Russian Federation, information about established branches and open representative offices must be indicated in the constituent documents of a legal entity (location and other necessary information). This provision allows state control over the activities of a legal entity outside its location for the purpose of taxation and protection of the interests of creditors, as well as for other purposes provided for by law.

In connection with the foregoing, it can be concluded that all units that are separate in accordance with civil law are also recognized as separate for tax purposes. However, not every subdivision recognized as separate in accordance with tax legislation is such in accordance with civil law.

5. Payment of income tax by taxpayers with separate subdivisions

Features of the payment of income tax by taxpayers with separate subdivisions are established by Art. 288 of the Tax Code of the Russian Federation (clause 3 of article 287 of this Code).

Payment of advance payments, as well as amounts of income tax to be credited to the revenue side of the budgets of the constituent entities of the Russian Federation and the budgets of municipalities, is made by taxpayers - Russian organizations at the location of the organization, as well as at the location of each of its separate divisions based on the share of profit attributable to these separate divisions, defined as the arithmetic average of the share average headcount employees (labor costs) and the share of the residual value of the depreciable property of this separate subdivision, respectively, in the average number of employees (labor costs) and the residual value of the depreciable property, determined in accordance with paragraph 1 of Art. 257 of the Tax Code of the Russian Federation, in general for the taxpayer (clause 2 of article 288 of this Code).

According to paragraph 1 of Art. 289 of the Tax Code of the Russian Federation, taxpayers, regardless of whether they have an obligation to pay tax and (or) advance tax payments, the specifics of calculating and paying tax, are obliged, after the expiration of each reporting and tax period, to submit to the tax authorities at their location and the location of each separate subdivision the relevant tax declarations in the manner prescribed by the above article of the Code.

For the purposes of Chapter 25 of the Tax Code of the Russian Federation, a permanent establishment of a foreign organization in the Russian Federation means a branch, representative office, branch, bureau, office, agency, any other separate subdivision or other place of activity of this organization through which the organization regularly carries out entrepreneurial activity on the territory of the Russian Federation, connected with:

With the use of subsoil and (or) the use of other natural resources;

With the performance of works stipulated by the contracts for the construction, installation, installation, assembly, adjustment, maintenance and operation of equipment, including slot machines;

With the sale of goods from warehouses located on the territory of the Russian Federation and owned by this organization or leased by it;

With the implementation of other works, the provision of services, the conduct of other activities, with the exception of the provisions of paragraph 4 of Art. 306 of the Code (clause 2 of article 306 of the Tax Code of the Russian Federation).

When applying the concept of "separate subdivision of the organization" for the purposes of taxation of profits, in particular, the following questions arise.

Can any subdivision territorially separated from it, at the location of which one stationary workplace is equipped, be a separate subdivision of the organization? Is a separate subdivision of the organization created if, at the location of the territorially separate subdivision from it, stationary workplaces are equipped, but not occupied by employees (that is, the corresponding labor relations between the employee of this subdivision and the employer arose later)?

In the definition of a separate division of the organization, the noun "subdivision" is used in the singular, and "place" in the plural, that is, it is not about the workplace, but about jobs. Therefore, we can conclude that in the case of creating a territorially separate subdivision, at the location of which only one stationary workplace is equipped (for example, a post office), one cannot speak of creating a separate subdivision of the organization. However, this is a formal approach to understanding this definition. Therefore, the taxpayer should be prepared for the fact that the tax authority will not agree with this position, referring not to the letter, but to the spirit of the law.

In any case, it is obvious that if, for example, an organization has built (rented) a workshop, but has not yet hired workers for this workshop, it is not possible to consider this workshop as a separate subdivision, since jobs have not yet been created in it (workers have not been hired). who should take these places).

Another thing is if workers are already hired and should arrive at this shop for work, but have not yet arrived. In this case, the workshop can be considered as a separate division of the organization.

6. Responsibility of legal entities and individual entrepreneurs for violation of civil and tax laws due to failure to provide information on the creation of a separate subdivision

Responsibility for violation of the requirement of the Civil Code of the Russian Federation to indicate in the constituent documents of a legal entity information about established branches and open representative offices is established by Chapter 8 of Law N 129-FZ.

For non-submission or untimely submission of information necessary for inclusion in state registers, as well as for submission of false information, applicants, legal entities and (or) individual entrepreneurs bear the responsibility established by the legislation of the Russian Federation (clause 1, article 25 of Law N 129-FZ).

The registering authority has the right to apply to the court with a demand to liquidate a legal entity in the event of gross violations of the law or other legal acts committed during the creation of such a legal entity, if these violations are irreparable, as well as in the event of repeated or gross violations of laws or other regulatory legal acts of the state registration of legal entities (clause 2, article 25 of Law N 129-FZ).

The Tax Code of the Russian Federation does not provide for the mandatory reflection in the constituent documents of the taxpayer of information relating to the divisions of the organization recognized as separate for tax purposes.

Nevertheless, the tax authorities exercise a special form of tax control over the activities of the organization through its separate divisions.

Taxpayers are subject to registration with the tax authorities, respectively, at the location of the organization, the location of its separate subdivisions, the place of residence of an individual, as well as at the location of their real estate and Vehicle and on other grounds provided for by the Tax Code of the Russian Federation.

An organization that includes separate subdivisions located on the territory of the Russian Federation is obliged to register with the tax authority at the location of each of its separate subdivisions (clause 1, article 83 of the Tax Code of the Russian Federation).

Registration with the tax authority of organizations and individual entrepreneurs as a taxpayer is carried out regardless of the presence of circumstances with which the Tax Code of the Russian Federation associates the emergence of an obligation to pay a particular tax (clause 2 of article 83 of the Tax Code of the Russian Federation).

When carrying out activities in the Russian Federation through a separate subdivision, an application for registration of an organization at the location of a separate subdivision is submitted within one month after the creation of a separate subdivision (clause 4, article 83 of the Tax Code of the Russian Federation).

According to paragraph 1 of Art. 116 of the Tax Code of the Russian Federation violation by the taxpayer of the established Art. 83 of this Code, the deadline for filing an application for registration with a tax authority in the absence of signs of a tax offense provided for in clause 2 of this article of the Tax Code of the Russian Federation, entails a fine in the amount of 5,000 rubles.

Violation by the taxpayer of the established Art. 83 of the Tax Code of the Russian Federation, the deadline for filing an application for registration with a tax authority for a period of more than 90 days entails a fine in the amount of 10,000 rubles. (Clause 2, Article 116 of the Tax Code of the Russian Federation).

Paragraph 1 of Art. 117 of the Tax Code of the Russian Federation establishes that the conduct of activities by an organization or an individual entrepreneur without registration with a tax authority entails a fine in the amount of 10% of the income received during the above time as a result of such activities, but not less than 20,000 rubles.

Conducting activities by an organization or individual entrepreneur without registration with a tax authority for more than three months entails a fine in the amount of 20% of income received during the period of activity without registration for more than 90 days (clause 2 of article 117 of the Tax Code of the Russian Federation).

It should be noted, however, that the provisions of Art. 117 of the Tax Code of the Russian Federation also apply to the organization's activities through its separate divisions.

Thus, the Tax Code of the Russian Federation establishes liability associated with registration with the tax authority of an organization at the location of separate divisions of the organization.

The submission by the taxpayer to the tax authorities of the list of its separate divisions of the Tax Code of the Russian Federation is not provided. How, in this case, to establish a complete list of units classified as separate units in accordance with Tax Code of the Russian Federation and taxable profits during the tax period?

An organization, which includes separate subdivisions, at the end of each reporting and tax period, submits to the tax authorities at its location a tax declaration for the whole organization with distribution by separate subdivisions (clause 5, article 289 of the Tax Code of the Russian Federation).

The tax authority at the location of the separate divisions of the organization submits an income tax declaration, the form of which is approved by order of the Ministry of Finance of Russia dated November 11, 2003 N BG-3-02 / 64 (hereinafter referred to as the declaration), including Title page(Sheet 01), subsection 1.1 and (or) subsection 1.2 of Section 1, as well as the calculation of the amount of tax payable at the location of this separate subdivision (relevant pages of Appendix No. 5a to Sheet 02).

Line 010 of Appendix N 5 to Sheet 02 "Calculation of the distribution of advance payments and income tax by an organization with separate divisions" indicates the number of separate divisions, and line 010 of Appendix N 5a to Sheet 02 "Calculation of the distribution of advance payments and income tax for separate subdivisions of the organization" of the declaration reflects the name of the separate subdivision.

In accordance with clause 7 of the Instruction, Appendix No. 5 to the declaration is filled in by the taxpayer as a whole for the organization and for the organization without separate divisions.

Annex No. 5a to the declaration is filled in by the taxpayer for each separate division; the number of calculations depends on the number of separate divisions.

Column 5 of Appendix No. 5 to the declaration reflects data for the organization as a whole without separate divisions liquidated during the current tax period. This means that the taxpayer submits Appendix No. 5a for all separate subdivisions, including those liquidated during the current tax period.

Therefore, the data on lines 010 of all Appendix No. 5a to the declaration is a list of structural divisions of the organization recognized as its separate divisions in accordance with the Tax Code of the Russian Federation.

Are there tax sanctions for failure to submit a declaration at the location of separate subdivisions?

In accordance with paragraph 1 of Art. 119 of the Tax Code of the Russian Federation, the failure by a taxpayer to submit a tax declaration to the tax authority at the place of registration within the period established by the legislation on taxes and fees in the absence of signs of a tax offense provided for in paragraph 2 of the above article of the Code, entails a fine in the amount of 5% of the amount of tax payable (additional payment ) on the basis of this declaration, for each full or incomplete month from the date set for its submission, but not more than 30% of the above amount and not less than 100 rubles.

Failure by a taxpayer to submit a tax return to the tax authority within more than 180 days after the expiration of the deadline established by tax legislation for the submission of such a declaration entails a fine in the amount of 30% of the amount of tax payable on the basis of this declaration and 10% of the amount of tax payable on the basis of this declaration, for each full or incomplete month starting from the 181st day (clause 2, article 119 of the Tax Code of the Russian Federation).

In passing, we note that paragraph 2 of Art. 119 of the Tax Code of the Russian Federation is subject to application in accordance with its constitutional and legal meaning, identified in the ruling of the Constitutional Court of the Russian Federation of July 10, 2003 N 316-O.

At the same time, we draw the special attention of the readers of the journal to the fact that if the declaration is not submitted in full at the location of the separate subdivision [for example, it contains the Title Page (Sheet 01), subsection 1.1 and (or) subsection 1.2 of Section 1, but Appendix No. 5a to Sheet 02 is not included], liability for such a violation is not provided.

This violation is qualified as a violation of the rules for drawing up a tax return, and before the entry into force of the relevant norm of the Federal Law of July 9, 1999 N 154-FZ "On Amendments and Additions to Part One of the Tax Code of the Russian Federation", Art. 121 of the Tax Code of the Russian Federation, according to which violation of the rules for compiling a tax return by a taxpayer, that is, failure to reflect or incomplete reflection, as well as errors leading to an underestimation of the amount of taxes payable, entailed a fine of 5,000 rubles. (Article 121 of the Code is excluded by the above Federal Law).

We also note that in case of failure to submit a declaration at the location of a separate subdivision and, accordingly, non-payment of tax at the location of a separate subdivision, Art. 122 of the Tax Code of the Russian Federation, clause 1 of which establishes that non-payment or incomplete payment of tax amounts as a result of understating the tax base, other incorrect calculation of tax or other illegal actions (inaction) entails a fine in the amount of 20% of the unpaid tax amounts.

The acts provided for in paragraph 1 of Art. 122 of the Tax Code of the Russian Federation, committed intentionally, entail a fine in the amount of 40% of the unpaid tax amounts (clause 3 of article 122 of the Code).

Thus, the effect of Art. 122 of the Tax Code of the Russian Federation applies not only to cases of non-payment or incomplete payment of tax amounts as a result of an understatement of the tax base, other incorrect calculation of tax, but also to cases of non-payment or incomplete payment of tax amounts as a result of other illegal actions (inaction).

The above illegal actions (inaction) may include failure to submit a declaration at the location of separate divisions of the organization (since it is mandatory in accordance with paragraph 1 of article 289 of the Tax Code of the Russian Federation), as well as the associated non-payment of tax at the location of separate divisions of the organization ( since it is mandatory in accordance with paragraph 2 of article 288 of the Tax Code of the Russian Federation).

We draw the attention of the readers of the journal to the fact that when applying paragraph 1 of Art. 122 of the Tax Code of the Russian Federation, the provisions of clause 2 of the ruling of the Constitutional Court of the Russian Federation dated 04.07.2002 N 202-O "On the complaint of a unitary state enterprise"Road Repair and Construction Department N 7" for violation of constitutional rights and freedoms by the provisions of paragraph 1 of Article 122 of the Tax Code of the Russian Federation, according to which the question of the constitutionality of the provisions of tax legislation providing for the possibility of applying government bodies punitive sanctions in the absence of the debtor's fault, along with the collection of fines, has repeatedly been the subject of consideration by the Constitutional Court of the Russian Federation.

In the resolution of the Constitutional Court of the Russian Federation of December 17, 1996 N 20-P "On the case of checking the constitutionality of clauses 2 and 3 of part one of Article 11 of the Law of the Russian Federation of June 24, 1993 "On federal tax police bodies" "it is indicated that, within the meaning of Art. . 57 of the Constitution of the Russian Federation, the tax obligation consists in the obligation of the taxpayer to pay a certain tax established by law. Failure to pay the tax on time must be compensated by the repayment of the debt on the tax obligation, full compensation for the damage incurred by the state as a result of late payment of the tax. Therefore, the legislator has the right to add an additional payment to the amount of the tax that was not paid on time - a penalty as compensation for the losses of the state treasury as a result of the shortfall in receiving tax amounts on time.

Other types of measures, namely the collection of fines, go beyond the scope of the tax liability. They are not restorative, but punitive in nature and are a punishment for a tax offense, that is, for an illegal guilty act provided for by law, committed intentionally or through negligence. In the proceedings on a case of a tax offense, both the very fact of the commission of such an offense and the fault of the taxpayer are subject to proof.

As follows from Art. 54 of the Constitution of the Russian Federation, an offense is a necessary basis for all types of legal liability. At the same time, the content of specific elements of offenses in the public law sphere should be consistent with the principles of the rule of law in its relationship with individuals and legal entities as subjects of legal responsibility. Such a legal position was formulated by the Constitutional Court of the Russian Federation in paragraph

Civil and tax codes distinguish different approaches to determining what a separate division of an organization is. The Civil Code of the Russian Federation relies on the requirement to include in the statutory documentation and Unified State Register of Legal Entities about such structures. In the Tax Code of the Russian Federation, this condition is not usually classified as significant, a separate subdivision is identified by the presence or absence of a stationary workplace and territorial remoteness from the head office.

Sole Proprietorship - What is it?

A separate subdivision of the Tax Code of the Russian Federation is interpreted as an organization related to a specific legal entity, but having a different address (clause 2 of article 11 of the Tax Code of the Russian Federation, letter from the Ministry of Finance dated August 18, 2015 under No. 03-02-07 / 1 / 47702) . The second prerequisite is the arrangement of a place to work for a period exceeding one month, and with signs of stationarity.

Decree No. 296p dated October 13, 2008 (Article 12) and the norms of Law 167-FZ dated December 15, 2001 (Article 11) clarify what a separate subdivision means when determining the structure responsible for paying insurance premiums. The legislation of 2017 singles out a separate division of a legal entity as a separate payer of insurance premiums with the obligation to submit reports if the requirements are met:

the presence of an open current account;
The state provides for an accounting position for payroll.

What is a separate division of the organization regarding the concept of stationarity of jobs - this question is answered by the letters of the Ministry of Finance 03-02-07 / 1-20 and No. 03-02-07 / 01-50 dated January 18, 2012 and March 1, 2012, respectively . The place of work must meet the standards for ensuring normal working conditions, create conditions for the implementation labor function staff. A separate subdivision assumes the presence of officials at the facility, but the amount of time spent throughout the day does not matter.

The functions of a separate subdivision can be performed by employees if:

the employment relationship with the employee is officially registered;
the staff of the unit works outside the head office;
the organization can control the state of the workplace.

Do I need to notify the tax office when a separate subdivision opens?

A separate subdivision of an organization is a structure that meets the requirements of the Tax Code and is registered with the Federal Tax Service. Their creation, closing or changing the list of powers for them is subject to mandatory subsequent notification of the tax inspection authorities (clause 2, article 23 of the Tax Code).

A separate structural unit is a branch of an organization, the appearance of which the tax authorities must learn within a month. When changes are made to the information about the unit in the IFTS, the relevant information is submitted within three days. Separate divisions a legal entity, this is implemented using a special notification form approved in order No. ММВ-7-6 / [email protected] June 9, 2011

Types of separate divisions

The Civil Code of the Russian Federation contains the concept of a separate subdivision in two forms (Article 55):

Representative office located at a territorial distance from the parent organization. Its task is to represent the interests of a higher legal entity and, if necessary, to protect them.
A branch is a separate subdivision that differs from the head structure in location, endowed with the right to perform the functions of a legal entity or representative offices.

A separate division of an LLC implies the appointment of a managerial link by a parent organization. The legal basis for carrying out activities at the head of a branch or representative office will be a power of attorney of a legal entity. A separate subdivision does not imply that its head will have the status of a sole executive body, therefore, activities will be carried out on behalf of the entire organization, and not a subdivision.

When is it necessary to create a separate division?

The main reason for creating any of the forms of a separate structure is the need to implement business operations not only at the place of registration of the enterprise. A vivid example is a large trading organization with warehouses in different settlements. Situations are allowed when a separate subdivision is opened in the same city as the head office. For this case, it is necessary that the actual address of the unit differs from the legal one.

In what cases is a separate division opened:

when trading in different cities;
when creating several points of storage of goods with the introduction of the position of a storekeeper or watchman for each of such objects;
when organizing work through branches and representative offices.

When expanding the activities of the enterprise, it often becomes necessary to open a separate division. When preparing reports on it and calculating taxes, many entrepreneurs face difficulties. We are ready to tell you what features subdivisions and branches have, what reporting they should submit and who has the right to open them.

All Russian enterprises have the right to open separate subdivisions. Existing legislation regulates the signs and all aspects of its activities. Let us examine in more detail the legal norms governing the activities of separate divisions.

What is a separate division?

Reporting of a separate division in 2019

Legal entities that have a OP and apply the simplified tax system calculate the tax base and the amount of tax for the whole organization, taking into account all income and expenses. At the same time, the tax is paid at the tax authority at the location of the main office, regardless of where the subdivision is located.

When it is opened, a legal entity using the simplified tax system becomes a tax agent for the payment of personal income tax, not only in its main office, but also in a division. Reporting and payment of this tax is made at the place of registration of the unit. If the organization has several EPs, then reporting and payment of tax should be carried out at the place of registration of each of them. Since Chapter 23 of the Tax Code of the Russian Federation does not give tax agents the right to independently choose a unit for calculating and paying taxes. The same statement is contained in the letter of the Ministry of Finance dated December 23, 2016 No. 03-04-06 / 77778.

As for registration with the Social Insurance Fund and the Pension Fund of the Russian Federation, from January 1, 2015, such an obligation was canceled on the basis of Federal Law of June 28, 2014 No. 188-FZ. It is reserved only for those units that meet the following criteria:

independently calculates payments in favor of individuals;
allocated to a separate balance sheet;
has a checking account.

If at least one condition is not met, it is not necessary to register it.

Share of profit of a separate division

Payment of taxes and advance payments is made based on the share of profits. For its calculation, one of two indicators is taken as the basis:

the average number of employees of a separate subdivision (hereinafter SCOP);
labor costs of employees of a separate subdivision (hereinafter OTOP).

The selected indicator, according to article 288 of the Tax Code of the Russian Federation must be reflected in the accounting tax policy. The decision to amend the tax policy is taken from the beginning of the tax year. He speaks about it.

The calculation of the profit share for the OP is carried out in accordance with a certain algorithm:

Calculation of the specific weight of the selected indicator - CHOP or OTOP

Specific gravity SCOP = SCOP / SCHORG * 100%

The share of OTOP = OTOP / OTORG * 100%, where SCHORG and OTORG are indicators for the organization as a whole.

Calculation of the specific weight of the residual value of the depreciable property of the EP (hereinafter OVOP)

The share of OVOP = OVOP / OSORG * 100%, where OSORG is the residual value of the depreciable property of the organization.

Calculation of the profit share of a separate division (hereinafter referred to as DPOP)

DPOP = (Specific Gravity SNOP + Share Gravity OVOP) / 2

DPOP \u003d (Specific gravity of OTOP + Specific gravity of OVOP) / 2.

Separately, it is worth noting that when choosing an indicator of labor costs for calculating the share of profit, it is necessary to take into account the costs of wages of employees who are not part of the company's staff. That is, those working on the basis of civil law contracts and work contracts.

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, That 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", so the conclusion with them employment contracts does not require the creation of a separate unit.

Please note that individual entrepreneurs should not create and register separate divisions. Individual entrepreneurs 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 cancelled). 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 separate 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 division has been appointed, who acts by proxy.
Internal regulatory documents have been developed that regulate 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 carry out the economic activities of the organization in full (for example, a store is only engaged 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. Additional requirement to report tax office on all separate subdivisions (within a month) and on 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 subdivisions are located in the same municipality, but in territories under the jurisdiction of different tax inspectorates, registration can be carried out at the location of one of the separate subdivisions, at the choice of the organization. For example, if an LLC has several stores in one city 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 related to the performance of his official duties. If the employee is remote, it is not required to create a separate division.
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.

Unlike entrepreneurs, the legislator allows legal entities to open their own separate subdivisions (OS), which can be of several types. Most often, branches or representative offices are opened, less often simple OPs. Each of them has similar features, but at the same time, differences.

The purpose of creating structural units is to expand the business, increase sales, open outlets or stores, attracting consumers, and as a result - making a profit. Often, depending on the tasks that the founder or director of the enterprise sets for himself, in different regions of the country or within the same locality, he opens various types of OP.

Initially, the company's management needs to figure out what each of the OPs is, what powers it can be endowed with, how to register it and pay taxes in the future? If a company, for example, needs to place only one employee remotely from the main office, which of the types should this structural unit be classified as? According to the Tax Code, art. 11 for the purpose of taxation, the legislator recognizes under the OP any unit equipped with stationary jobs that can function for more than a month.

The legislator sets out the concept of a stationary workplace in the Labor Code, in Art. 209. It says that it must be controlled by the employer. For this, his relationship with employees should be regulated by an agreement (labor, civil law, etc.). In fact, an OP with stationary jobs may arise if an enterprise enters into an employment relationship with a physical. face.

The conclusion of other contracts, for example, for the performance of work or the provision of services is not allowed. The second distinguishing feature of the OP is its territorial remoteness from the location of the main office, i.e. it should be located at a different address. A division is recognized as separate, regardless of whether information about it is displayed in the company's charter or in other internal documents.

Overview of concepts and views

At legal one or more EPs equipped with workplaces can be opened for a person.

In turn, they are divided into:

branches;
representations;
simple (ordinary) OP.

Any of the OPs will be able to fully function as soon as jobs are created at its location. The legislator provides references to this concept in various normative acts of the Tax, Labor and Civil Codes.

It is also considered that the property, which is located in a territorially remote area, belongs to the enterprise itself, regardless of how the fact of its discovery was formalized. The main enterprise organizes activities through its structural unit.

The difference between a branch and a separate division of a regular or representative office lies in the functions and powers to be performed:

the branch will have to perform all the functions of the main enterprise or part of them, including representative ones;
the representative office is obliged to represent the interests of the company and protect them;
the usual OP is an additional working complex, which is no different from those located at the location of the main office of the enterprise.

None of the types of EP can be a separate legal entity, but is created for the purpose of carrying out activities on behalf of the main enterprise, i.e. its creator. SPs must act on the basis of authority to be approved by management.

A regular (simple) SP may not keep a separate balance sheet, but branches or representative offices may. Therefore, the property that will be separated by the enterprise to a structural unit for the performance of duties is accounted for differently, on the main or its OP.

The body authorized by the constituent documents to manage the branch (representative office) appoints a specific person who must act on the basis of a power of attorney. The actions of the head cannot be based on the instructions set forth only in the Regulations on the branch or representative office, constituent documents. When an enterprise opens a branch or representative office, it is obliged to enter information about this EP into the constituent documents.

To create a remote working complex called "simple OP", you need:

the head of the enterprise to issue an Order on its creation;
amend the Regulations or Rules work schedule the main enterprise, i.e. to local documents.

If legal a person decides to create a simple OP in 2019, he does not have to invite an employee to leadership position, open a separate bank account and give the unit the authority to hire employees.

Enough in domestic normative documents indicate the address of the OP and make other changes. The decision to open a branch or representative office is made by voting of participants or founders with the obligatory making of entries in the constituent documents. Appointed to guide individual. The rest of the issues are dealt with individually in each individual case.

Specificity and features

Any of these structural units - a branch (representative office), a simple EP must:

be located at a different address from the parent company;
have at least 1 working stationary place, which can function for more than 1 calendar month;
have at least one employee to work;
is under the control of the enterprise that opened it.

In addition to the main features, various EPs also have distinctive ones, which are associated not only with the performance of functions and duties, requirements for opening, but also with registration. For example, when opening a separately equipped complex of workplaces, an enterprise needs to register it with the tax office, but no in extra-budgetary funds, and information about the creation should not be entered into.

With regard to branches (representative offices), the Tax Code makes these requirements mandatory. Depending on the type of OP opened for the tax, a special form with information is filled out.

The most common form of OP is a branch, which can be assigned all the functions, roles and activities of the main enterprise, which is very convenient for business development, despite the more complicated process of opening it.

Criteria	Branch	Representation	Simple OP
Functional responsibilities	Performs the functions of the main enterprise in whole or in part, but may take on representative	Protects and represents the interests of the enterprise that opened it	Employees hired to work at remote fixed workplaces perform functions inherent in the activities of the enterprise
commercial activity	May be exercised by decision of the authorized body	The representative office cannot engage in commercial activities	Only activities within the framework of labor relations between the enterprise and hired employees are envisaged
Notification to the tax office for opening	Not necessary		Notice must be sent within one month of opening
Registration in the territorial branch of the National Assembly	Information is entered into the Unified State Register of Legal Entities, the OP is tax registered		Data on the complex of jobs is not entered into the Unified State Register of Legal Entities
By the decision of which body is opened	The founders (owners of the company) or the council of participants make a decision at the general meeting, this is recorded in the minutes and other constituent documents. The administrative document is the decision of several persons having the right to vote		The decision is made by the executive body of the enterprise, as a rule, this is the head. Executive document is his Order
Accounting	Both forms can be applied at the discretion of the authorized body: joint or separate		Does not engage in and does not have a separate balance sheet
Opening a separate current account	Allowed, can open it and make payments.		Cannot open accounts separately from the main business

A branch (representative office) is more like a main enterprise than a simple OP, the latter is very limited in its rights and is actually an executive separate structure.

The main document on the basis of which any of the OPs must work is the Regulations or Rules on the procedure for working. At the same time, a copy of the charter must be submitted to the tax office at the location of the branch (representative office), this is not necessary for a simple EP.

The main differences between a branch and a separate division

Despite the many differences between different types of OP, their common feature is dependent on the main company. She owns not only the property and funds in the accounts, but also the goals and tasks that she sets for her structural unit. The main differences are: documentary registration of the opening, business transactions, accounting and reporting.

The table can clearly show this:

OP type	Branch	Representation	Simple OP
The tasks that the enterprise sets for the EP	All or some	Only represent and protect his interests	Depending on the needs of the organization
Status of independence	Absent
An entry in the charter of the enterprise about the opening and functioning	Required		Need not
HD management	Conducted through the manager		Conducted through the main office of the enterprise and the responsible employee
Documents required for legal activities	Regulations or Rules on the creation and procedure of work, with the obligatory entry of information about them into the charter		Internal local enterprise documents
Appointment of the head	Required, acts on the basis of a power of attorney	At the discretion of the management	Not required, responsible person for the work of the OP acts on the basis of job description
Having a separate checking account	Available	Can be opened, but most often it is not	Not available
Doing Business	Anywhere, without restrictions, at the location of the OP		Only within the complex of jobs, i.e. at the location of a simple OP
Availability of licenses for the implementation of the data warehouse	Need to get	Must receive, but not all can be issued	No need to receive, works on the basis of licenses issued to the enterprise (it is enough to have copies)

Other clarifications

An important point for the implementation of the legal activities of the EP is registration with the regulatory authorities for the accounting and transfer of taxes and contributions. In practice, it often turns out that an open EP does not work as the enterprise planned, so many nuances must be foreseen in advance.

Registration and registration

It is necessary to register with the territorial office of the National Assembly at the location of any EP. If the OP is on a dedicated balance, then he will need to submit reports in the future.

It is necessary to submit a notification to the tax office about the opening of a simple EP within a month. Documents about a branch (representative office) are submitted immediately after authorized body decides to open and writes it to .

It is necessary to submit an application for the establishment of a branch (representative office), as well as certified copies of:

minutes of the meeting of founders or participants;
Regulations on the branch (representative office);
the charter of the enterprise with entries made about the formation of a new structure, indicating its name and location;
powers of attorney for the appointed head;
others on request.

Within 5 days, the Supervisory Board is obliged to make changes to the Unified State Register of Legal Entities and register in its databases information about the new structural unit of the enterprise. After registration, the company will receive a notification of amendments to the charter, an extract from the Unified State Register of Legal Entities, certified.

All the necessary information about the new structure will be sent to the tax office in the territorial office of the National Assembly at the place where the branch (representative office) is located, where it will be registered. If the OP maintains a separate balance sheet in the future, then you will have to submit reports, pay taxes at the place where the branch (representative office) is located. Also new structural unit separate Goskomstat codes are assigned.

If in one territory, which is under the jurisdiction of different branches of the National Assembly, several OPs are opened within the same municipality, then one of them can be selected for registration.

The main enterprise is obliged to report any changes in relation to the open OP within 3 days, otherwise penalties will be imposed on the head. When a simple OP opens, the tax office is only notified that a complex of places is being remotely created at such and such an address, the work of which will be controlled by the main organization.

When it is assumed that the OP will open a current account, will independently maintain a balance sheet, calculate and pay salaries to employees, this indicates the obligation to submit reports to the Pension Fund and the Social Insurance Fund, other budgetary and non-budgetary funds. A branch, and in some cases a representative office, will need to register with the Funds within a month from the date of opening. All Required documents Before delivery, they are certified by a notary.

The following is submitted to the territorial office of the Pension Fund at the location of the branch (representative office):

information on registration with the National Assembly;
notice of registration of the main enterprise in the PF;
bank confirmation of an open current account;
application for registration;
others on request.

Together with the application for registration and a letter from Rosstat, information about:

state registration of the main enterprise in the tax and FSS;
registration with the National Assembly;
the decision of the meeting of founders on the opening of the EP;
having a checking account.

Comparative characteristics

The concept of types of EP is absent in the Tax Code, because for taxation the very fact of opening and operating a unit is important, and not the powers that the enterprise will entrust to it. The Civil Code cites the differences between the OP in Art. 55, which indicates the functional purpose of each of them. If, for example, a representative office is negotiating with participants in civil transactions to conclude transactions before and after, but it, like a branch, cannot represent the interests of the company in court on its own.

The branch directly concludes transactions, negotiates on behalf of the enterprise, performs actions for execution contractual relations, can conduct any activity in which the legal entity is engaged. face.

With regard to a simple OP, we can say that in fact this is an addition to those jobs that are already organized by the enterprise at its main location. All separately, OPs cannot be independent participants in the turnover, but only enter into labor, civil, tax relations and others on behalf of legal entities. faces. Therefore, the responsibility for the activities of any EP lies with the enterprise that opened it.

For example, the difference between a branch and a separate subdivision is that the former can file a lawsuit on behalf of the enterprise, but it is required to attach a power of attorney to the head confirming his authority. The usual OP cannot even do this, and he does not have a leader at all. Any of the OP cannot be held liable for tax separately from the main enterprise, despite its actions contrary to the law.

The territorial isolation of the OP, which the Civil Code speaks of, implies location in another subject of the Russian Federation, i.e. belonging to another municipality rather than having a different postal address. But in practice, NCs are guided by NCs and do not attach much importance to this concept, therefore they are allowed to open a OP in any place other than the location of the main enterprise, even, for example, in a neighboring house or entrance.

If the head of a branch (representative office) acts on the basis of a power of attorney, then the person responsible for the work of a simple EP in accordance with the job description. The first are appointed by the founders of the enterprise, and the second by the general director. The work of the branch is regulated by a separate Regulation, and the complex of workplaces - by internal local acts.

Important Factors

The legislator does not provide for state registration for any EP, only the main enterprise passes it and receives the status of a legal entity. Branches (representative offices) may or may not have a dedicated balance, which cannot be said about ordinary OPs. They do not keep records at all, do not submit reports, do not pay taxes and contributions, do not pay salaries. All this is done for them by the main office.

All funds and property for organizing their activities are received from the main enterprise. If the branch does not have a dedicated balance, then accounting is not kept, which means that it is simply transferred to the main office, where it is processed. All CW that the branch will produce will be accounted for by the main enterprise, but on separate balance sheet accounts.

When a branch has a current account and it keeps accounting separately, forms a balance, it means that it independently processes primary documents, calculates salaries, taxes, contributions, submits reports, etc. It is important for business leaders to remember, despite the fact that opening a remote work complex places assumes the beginning of its activities after a while, it is necessary to notify the National Assembly at its location in a month from the date of opening.

Otherwise, when a simple OP starts working, you still have to notify the National Assembly about it for registration, but with a fine. Any OP is required to conduct. The main enterprise will stitch sheets of cash books separately for all OPs.

What is better to choose

An important aspect for taxation is the ban on the use of the simplified tax system by the main enterprise if it has a branch or representative office, which does not apply to the organization of simple OP. Therefore, a taxpayer interested in switching to the simplified tax system should take into account that it is better for him to open remote working places than a branch (representative office).

A simple EP is also easier to register with the tax office, because it is not required to enter information into the ERGUL, and therefore only a notification is sent about its opening. In a regular EP, it is not required to keep accounting, which means hiring an accountant. In this regard, the workplace complex has a significant advantage.

But such an OP is limited in its powers, so not all tasks can be solved by the enterprise through it. It is necessary to choose between a branch and the organization of a complex of jobs, based on the goals set for the structural unit, and functional duties with which it is planned to endow.