The institution has separate divisions. What is a separate division

Separed division

A separate division is always additional troubles for an accountant. Problems begin already at the stage of its creation. What is a separate division? When is it considered created? In which case, it is necessary to become tax accounting at the place of its location, and in what - no?

What is a separate division

The concept of a separate division of the organization is given in paragraph 2 of Article 11 of the Tax Code of the Russian Federation. Thus, any territorial division from it is considered a separate division of the organization, at the location of which stationary jobs are equipped. The workplace is considered stationary if it is created for a period of more than one month.

From this definition, we can conclude that the part of the organization is recognized by its separate unit if there are following signs:

territorial location outside the location of the organization. That is, the address of the structural unit should differ from the address of the organization specified in the constituent documents;
equipment at the location of a separate division of jobs for more than one month.

The concept of workplace in tax legislation is absent. Therefore, the definition should be used in other branches of law. This is stated in paragraph 1 of Article 11 of the Tax Code of the Russian Federation.

The concept of workplace is contained in the Federal Law of 17.07.1999 N 181-FZ "On the Fundamentals of Labor Protection in the Russian Federation".

According to Article 1 of the law, the workplace is a place in which the employee must be or in which he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer. A similar definition is contained in Article 209 of the Labor Code.

In practice, sometimes there is a question whether it is possible to talk about a separate division if the organization is equipped with jobs for "other people's" workers. for exampleThe organization built a building and equipped office premises in it for renting.

From the above definition it follows that the workplace is directly related to the employee who has entered into an employment contract with the employer who created this workplace.

In Art. D.15 and 16 of the Labor Code of the Russian Federation, it is said that the employee and the employer are persons who, on the basis of the employment contract concluded between them, entered into labor relations. In other words, the employer can only be the organization with which the employee has entered into an employment contract.

Hence the conclusion: stationary jobs referred to in paragraph 2 of Article 11 of the Tax Code of the Russian Federation, this is the workplaces created for more than one month, equipped with the organization for their employees. That is, at the place of finding a separate division, labor duties of employees of the organization should be carried out. Equipment of jobs for employees of another organization to form a separate division does not lead.

The result is confirmed by and given in paragraph 2 of Article 11 of the Tax Code of the Russian Federation by determining the location of a separate division. This recognizes the place of exercise by the organization through its separate division.

The management of the organization through a separate division in the absence of the organization at the place of its location is impossible.

Example 1.. LLC "Condor" is registered in Tver. The company acquired an office in Moscow and passed it for rent. The office has only tenant employees.

In this case, Kondor has a separate division in Moscow.

Consider the case when an organization leases outside the place of its location created by another organization jobs for their employees. In this situation, the basis appears to attribute the specified jobs to the component of the tenant organization. Thus, the organization will have to recognize the occurrence of a separate division.

And what if the organization is outside the location of the organization work with which the organization did not work out, and civil legal contracts (for example, a contract of contract or service)? In this case, for the purposes of the Tax Code of the Russian Federation, it is impossible to talk about the creation of a separate division. Labor relations with individuals are absent, it means that they cannot be called workers.

However, be attentive: common labor relations are often hidden for civil-legal contracts. Therefore, such treaties are an object of close attention in the inspections conducted by labor inspection. If it is proved that the civil contract is concluded only in order to "mask" labor relations, fine not<*>. To present claims related to tax registration, tax pays and reporting on the location of such a separate unit, and tax authorities.

<*> Read more about this article "Civil-legal agreement: be careful" // RNA, 2003, N 5. - approx. ed.

Often, this question is asked: how to be if only one workplace is created?

Separed division of a legal entity: reporting and taxation

The literal interpretation of the definition given in Art.11 of the Tax Code of the Russian Federation may lead to the conclusion that for the recognition of a separate division, it is necessary to have at least two jobs. Indeed, it is said that at the location of a separate division, it is necessary to have stationary jobs. However, this does not mean that the provision of the Code requires two or more jobs. The condition for the establishment of stationary jobs, established by Art.11 of the Code, will be performed, even if only one workplace is equipped. As a result, only one workplace was created in a territorially separable structural unit, such a unit is considered to be created for the purposes of taxation. for exampleAt the location of the currency exchange items, as a rule, one workplace is created. At the same time, banks recognize these exchange offices as separate divisions.

Example 2.. LLC "Atlant" is registered in Omsk. The society has acquired production facilities in the Tomsk region, unsuitable for operation and requiring overhame. For the protection of the facility at the time of repair, a security guard was employed.

In this case, despite the fact that only one stationary workplace was created, Atlanta has a separate division in the Tomsk region.

Branches, representative offices and separate divisions: What is the connection?

If you carefully read the definition of the concept of "separable division" given in paragraph 2 of Article 11 of the Russian Federation, one interesting detail can be seen. It is determined through the concept of "geographically separated from the organization of the unit." The latter should be interpreted in the meaning of it, in which it is used in other branches of the right (paragraph 1 of Article 11 of the Code).

According to Article 55 of the Civil Code of the Russian Federation, separate divisions of the legal entity, located outside of its location (that is, geographically separable divisions), can exist in two forms - branches or representative offices.

Branches and representative offices operate on the basis of approved provisions and should be indicated in the constituent documents of the Organization (paragraph 3 of Article 55 of the Civil Code of the Russian Federation).

At the same time, allocating only two types of separate divisions of the legal entity, the Civil Code of the Russian Federation does not limit the legal entity in creating separate divisions of other species. Thus, the Civil Code of the Russian Federation does not impose on a legal entity that created separate divisions in other forms than a branch and representation, responsibilities to indicate information about them in constituent documents.

The Tax Code establishes an additional criterion - the creation of stationary jobs. If the criterion is performed, the branch or representation is recognized as a separate division from the point of view of tax legislation.

The creation of branches and representative offices is almost always conjugate with the equipment of stationary jobs. Thus, in the overwhelming majority of cases, branches and offices for tax purposes are separate divisions. But the opposite is not true: separate divisions are not only branches and representative offices.

A separate unit is considered to be created independently of the implementation of the design procedure provided for by paragraph 3 of Article 55 of the Civil Code of the Russian Federation for branches and representative offices. This is about this paragraph 2 of Article 11 of the Tax Code of the Russian Federation. In particular, to be considered created, a separate division does not have to be specified in the constituent documents.

Thus, a separate division for recognizing it as such from the point of view of tax legislation should have established classes established by paragraph 2 of Article. It can be created both in the form of a representation or branch and otherwise, not contrary to the legislation of the Russian Federation.

Example 3.. We use the terms of example 1. Suppose that Condor LLC has opened a representative office at the location of the acquired office. It employs employees of society.

In this case, Condor has a separate division in Moscow.

A separate division was created: what to do next?

The creation of a separate division requires the organization of certain duties. In particular, it should be registered with the tax authority at the location of each separate division. This requirement is enshrined in paragraph 1 of Article 83 of the Tax Code of the Russian Federation. The application for registration is submitted within a month after the creation of a separate division.

When is the unit considered to be created? When it is equipped with stationary jobs. Such a date may be, for example, the day when the worker has started his labor duties at the location of the division. The legality of this position was, in particular, was confirmed by the Decree of the Federal Arbitration Court of the West Siberian District of 11.11.2002 in case No. F04 / 4146-855 / A03-2002.

As you know, in addition to registration at the location of the separated divisions, the organization should be registered with the tax inspections at the location of the real estate owned by it and vehicles to be taxed. Therefore, if the organization is already registered in the tax inspection at the location of a separate division, it is not necessary to register for registration. This is stated in the letter of MNS of Russia of 08.08.2001 N Shs-6-14 / [Email Protected]

In addition to registration at the location of a separate division, the organization is also obliged to report its creation at its placement. This is allocated for this month from the date of creation of the unit (paragraph 2 of Article 23 of the Tax Code of the Russian Federation). Similarly, it should be reported on the liquidation of units. The organization may consist of several tax inspectorates. In this case, it should inform about the creation of a separate division of all tax inspections, where it consists.

Example 4.. CJSC "Poplar" is registered in Moscow and consists in accounting only in the capital's tax inspectorate. In 2002, it acquired the store in St. Petersburg and passed it for rent. Since real estate was acquired, the Society fell on tax accounting in St. Petersburg. From January 1, 2003, the lease agreement was terminated and decided to trade independently. For this, workers were gained to the store.

In this case, a separate division is considered to be created from January 1, 2003. However, the organization is not required to re-establish tax accounting in St. Petersburg. It should only inform tax inspections in Moscow and St. Petersburg on the creation of a separate division.

Sanctions for violations

If the organization submits a statement of tax accounting at the location of a separate unit with a violation of a monthly period allotted for this, it faces a fine. If the organization is late with the application of the application for no more than 90 days - 5000 rubles., More than 90 days - 10,000 rubles. This is stated in Article 116 of the Tax Code of the Russian Federation.

If the organization does not only extend the application of the application, but also starts activities at the location of a separate division, the responsibility will come in accordance with Article 117 of the Code. The penalty will be calculated as the proportion of income obtained as a result of the maintenance of such activities (10 or 20%, depending on the duration of activity). The minimum penalty is 20,000 rubles.

Sanctions threaten not only the organization, but also to its officials who have listed violations. For the delay in submission of the application, a fine is charged from 5 to 10 minimum wages (that is 500 - 1000 rubles), and if at this time a separate division was led by activity - from 20 to 30 minimumts (2000 - 3000 rubles). This states Article 15.3 of the Code of the Russian Federation on administrative offenses.

Finally, you should not forget that at the location of the separated divisions you need to pay some taxes and donate reporting<**>. The organization that violates these duties risks to face serious problems.

First, it can be held accountable under Article 119 of the Tax Code of the Russian Federation for the failure to provide the tax declaration. Secondly, according to Article 122 of the Code for non-payment or incomplete tax payment. Thirdly, at the place of finding a separate division, there is an arrears for which the penalty will be accrued.

<**> Read more about this reference material "Separate divisions: how to pay taxes and donate reporting" // RNA, 2003, N 9. - approx. ed.

S.A. Kumekov

journal "Russian Tax Courier"

What is a separate division of the organization

Article 11 of the Tax Code calls three signs of a separate division

In GK, there is such a concept as a separate division is a unit located outside the location of the Yul, carrying out all its functions or their part.

Causes of creating a separate division

Business expansion
Optimization of the management of structural units in other regions
The desire of the organization to bring production to sources of raw materials The requirements of environmental legislation on the placement of hazardous and harmful industries away from settlements

Signs of a separate division

Territorial isolation - located outside the location of the legal entity
Stationary workplace - implies the presence of workers
Separate - have their own structure of the governing bodies determined by the head organization (Art. 209 of the Labor Code of the Russian Federation)

Under the equipment of a stationary workplace implies the creation of all the conditions necessary for the execution of labor duties, as well as the execution of such duties (the letter of the Ministry of Finance of July 28, 2011 No. 03-02-07 / 1-265, the resolutions of the FAS of the North Caucasus District of 20.06.2007 N F08-3590 / 2007-1449A, FAS of the North-Western District of 02.11.2007 in the A26-11293 / 2005 case).

Separate divisions are divided into

Branches
Representative offices
OP by tax legislation

The Company can create branches and discover representations to solve the general meeting of the Company's participants. Branches and representative offices are separate divisions of the organization located outside the location of the legal entity. The main differences between the representative office and the branch of the Company are in the functions performed.

Since the concept of "structural division of the organization" is lacking in the NK and other branches of the legislation, paragraph 16 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2, in accordance with which, under the structural divisions of the organization should be understood as branches, representative offices and departments , workshops, plots, sectors, etc.

Functions of representation and branch of Yul

Representative offices solely represent the interests of society and carry out their protection, the branch on the contrary, carries out all or part of the functions of the head society, including the functions of the representation.

The branch and representation of the Company are not legal entities and operate on the basis of the provisions approved by the Company. The branch and representation are endowed with the property that created their society. The leaders of representative offices and branches are appointed by a legal entity and operate on the basis of power of attorney.

Does it mean to the establishment of an employment contract with an employee who worries outside the office?

According to Art. 57 of the Labor Code of the Russian Federation with compulsory conditions for inclusion in the employment contract are, including place of work, labor function, conditions that determine the nature of the work. When carrying out activities with a traveling nature, there are no grounds for registering an organization in the tax authority at the place of implementation of such activities (letters of the Ministry of Finance of Russia dated 01.03.2012 No. 03-02-07 / 1-50, from July 28, 2011 No. 03-02 -07 / 1-265). For example, when employees visit various organizations, when installing equipment or programs, these employees do not carry out activities in the organization's office (own or rented).

The same applies to workers who carry out work directly at home.

Opomnomnians are considered to be persons who have entered into an employment agreement on the performance of work at home from materials and using tools and mechanisms allocated by the employer or purchased by the ace at their own expense (Article 310 of the Labor Code of the Russian Federation).

In carrying out an organization with the use of the work of a lump without inpatient jobs, the grounds for registering the organization in the tax authority at the place of residence of the employee do not arise.

If it uses the Internet to perform an employment function and to carry out the interaction between the employer and an employee on issues related to its implementation, then there may be a distance agreement between the parties.

According to Art.

312.1 Tk of the Russian Federation by remote operation is the fulfillment of a working workflow defined by the labor contract, in particular outside of a stationary workplace. Thus, remote work does not imply equipment in a stationary workplace. Consequently, regardless of how long the remote worker is attracted, the separate unit is not formed.

Does not create a separate division of the Organization, which concludes an agreement to fulfill work by the forces of workers attracted by the Third Organization. A separate division arises from an organization that provided staff.

The workplace must be created for more than one month

The actual time of finding a particular employee in the workplace, which is created or is used by the organization outside of its location, does not have the recognition of a separate division of fundamental importance.

The above-mentioned signs in aggregate mean that the organization carries out activities through its separate division. For tax control purposes, the Russian organization at the place of such activities (the location of a separate division) should be registered with the tax authority (Art.

Date of creating a separate division

Creating a stationary workplace may be confirmed

Tool rental premises
Labor contract with an employee in which the workplace is determined at the location of a separate division
Primary documents indicating the conduct of activities at the location of a separate unit (overhead, acts of acceptance and transmission)

The earliest of documents that record the presence of all signs of a separate division, and will determine the date of its creation.

If a special permission of authorized bodies is needed to conduct activities, in particular, the date of its issuance can be recognized as the date of creating a separate unit, since it is from this date that the activity can be carried out.

USN when registering a separate division

If the organization has created a separate unit, which is not a branch or representation, and did not indicate it as those in its constituent documents, it is entitled to apply the USN.

The CCT used by the OP is registered in the IFTS at the location of this unit.

If OP is not allocated to a separate balance, the organization should pay insurance premiums and submit reports on them to the territorial bodies of the FIU and the FSS of the Russian Federation at the place of its location.

The organization, which includes OP, is obliged to register with the tax authority at the location of each of its OP.

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Registration of companies (LLC / IP; PJSC / AO)
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CHANGES OF UK
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Change addresses of a separate division ... or the promised three years are waiting

Over the course of several years, the Ministry of Finance promised to make amendments to the tax legislation governing the procedure for accounting in the tax authorities of separate units of organizations in connection with the change in their location. A confirmation serves a number of written explanations on this issue. Currently, the Tax Code is adjusted - including on tax administration issues. But did the financial department fulfilled his promise?

Tax legislation gap

Recall the essence of the problems. The tax legislation of the Russian Federation is not defined, which is understood as a change in the location of the separated division of the organization, and, as a result, the procedure for accounting in the tax authorities of separate divisions of the organization is not established when changing the place of their location.

In this regard (in the absence of any norms of tax legislation regulating the actions of taxpayers when changing the address of a separate division), the Ministry of Finance regularly advises taxpayers to gain patience and expect relevant changes in the Tax Code, but for now it has not happened, insists on the implementation of the procedure Closing and opening a separate division. This is stated in his recent letter from 18.06.2010 No. 03-02-07 / 1-282<1>.

Separed division moves to a new office

In practice, the situation is quite common when after termination of contractual relations with one landlord a separate division has to move to another room, which, naturally, implies the change of the address. As a result, the taxpayer has the obligation to formulate the tax accounting of a separate division at a new address. These are the rules set in Art. Art. 23, 83 of the Tax Code of the Russian Federation.

Note! The Tax Code does not contain instructions on how to consider the day of creating a separate division. There are no explanations of the regulatory authorities on this issue. Moreover, according to paragraph 2 of Art. 11 of the Tax Code of the Russian Federation, a separate division is considered to be created in the event that the fact of its creation is not reflected in any organizational and administrative document.

For violation of the deadlines for submitting an application for tax registration of the organization under Art. 116 of the Tax Code of the Russian Federation threaten penalties in the amount of from 5,000 to 10,000 rubles.

Pointing in a letter No. 03-02-07 / 1-282 on the lack of norms in the tax legislation regulating the procedure for changing the address of a separate unit, officials of the Ministry of Finance recommend to taxpayers in this situation to take it from accounting in the tax authority for the old location and put pressure on The tax authority at the new address (see also the letters of the Ministry of Finance of Russia dated December 28, 2009 No. 03-02-07 / 1-575, from 08.05.2009 No. 03-07-07 / 1-236, from 14.07.2008 No. 03-02 -07 / 1-278).

Note. The Ministry of Finance believes that when changing the address of a separate unit, the organization should carry out the procedure for the closure and opening of a separate division.

A similar point of view adheres to the tax office in letters of 21.08.2009 No. 3-6-03 / 345, from 02.05.2007 N 09-2-04 / [Email Protected]Moreover, in practice, the tax authorities often insist on compliance with these rules and in the case when the organization is forced to change the location of a separate unit within the territory, the subordinate to one tax authority.

Such an approach to the change of address was supported by a separate division and judges in the decision of the FAS VVO dated September 16, 2008 in case No. A82-14769 / 2007-20. As the arbitrators indicated, the provisions of the Tax Code of the Russian Federation did not provide for the procedure for changing the location of a separate division of a legal entity by making such a record, but contain only the procedure for removal from the organization at the place of finding a separate division and putting it into account regardless of the location of the tax authority.

In the case when the organization does not fulfill the recommendations of the controllers and does not close A separate division at the old address, the tax authorities are often returned without execution the message of the organization on the formulation of its separate division into tax accounting at a new address, aimed in order to fulfill the obligation provided for by paragraphs. 3 p. 2 art. 23 of the Tax Code of the Russian Federation (form N С-09-3 "Message on the creation (closing) on \u200b\u200bthe territory of the Russian Federation of a separate division of the organization", approved by order of the Federal Tax Service of Russia dated 21.04.2009 N mm-7-6 / [Email Protected], or written notice drawn up in arbitrary form).

The requirements of the controllers following the taxpayers when changing the address of a separate unit cannot be called reasonable, and judgments are confirmed, in particular, the resolution of the FAS F03-5147 / 2008. In it, judges indicated that the reference of the tax authority at Art. 11 of the Tax Code of the Russian Federation as a substantiation of the address of the location of a separate division can not be changedIs unlawful, expansively interprets this rate of law, since in this case only the address of the unit has changed in connection with the end of the lease term occupied earlier, and the leadership, staff schedule of employees of the division, the function of the latter remained the same. Moreover, the norms of tax and civil legislation do not provide for the liquidation of the organization in case of changes in its location. Since tax legislation does not contain norms providing for a change in the location of a separate division, the conclusion of the inspection that this term applies only to a legal entity is also not based on the norms of law. According to judges, in this case there was enough to the tax authority notifications Society about changing the location of a separate division to remove it from tax accounting and registering in a new address (see also the decision of the FAS software from 02.27.2010 in case No. A55-10094 / 2009).

Taking into account the system interpretation of the norms established in Art. Art. 11, 83, 84 of the Tax Code of the Russian Federation, the judges in the Decree of the Ninth Arbitration Court of Appeal dated April 30, 2010 N 09-UP-6722/2010 also indicate the inconsistency of tax authorities on the issue of changes in the address of a separate division.

The address is changing - problems remain

Changing the address of a separate unit delivers quite a lot of hassle taxpayers. On the one hand, the closing procedure of a separate unit (on which the controllers insist) is associated, as a rule, with reconciliation of mutual settlements (including with the tax authority) or with the conduct of an exit tax audit regarding this unit, which provided for in paragraph 5 of Art. 84 NK RF. Also, the closure is associated with considerable costs for the design of a fairly large amount of documents. Some of them must be submitted to the tax authority, others are needed to bring in compliance with domestic documents (for example, orders for the closure (discovery) of a separate unit, an order for the appointment of the head, personnel orders, etc.).

On the other hand, the tax authorities impose claims to organizations operating at the address other than those prescribed in the Charter. Moreover, not finding the taxpayer at its legal address, the tax authorities are often asked to the court. liquidation, motivating this by the fact that the indication of the fictitious address during registration is a gross violation of the law (paragraph 2 of Art. 25 of the Federal Law of 08.08.2001 N 129-FZ "On State Registration of Legal Entities and Individual Entrepreneurs"). However, such a position of tax authorities, as a rule, does not find support from judges, since in the named norm we are talking about violations that are irreparable. The incomprehension of the same addresses can hardly be considered as, as evidenced by the existing arbitration practice (see, for example, the decisions of the FAS SZO dated 02.27.2010 in case No. A56-25535 / 2009, FAS DVO dated November 13, 2008, N F03-5002 / 2008, FAS software of 14.08.2008 in case No. A06-187 / 2008-21, FAS SSO dated 01.04.2008 N F04-1548 / 2008 (1783-A03-24), determination of the Russian Federation of 30.05.2007 N 5933/07).

If the taxpayer is not ready to enter into litigation with the tax inspectorate in order to avoid problems associated with the address, or rather, with the incompatibility of legal and actual addresses, it sometimes resorts to the most innocuous method in this case - registers a separate division at the place of its actual location. For example, at the address of the leased office.

Note. The arbitration practice indicates that the incomprehension of addresses is not a violation that is irreparable.

It turns out that, avoiding claims of tax authorities about the address in one case, the taxpayer faces the problem of changing the address of a separate division in another when you have to move to a new office.

If the organization does not register a separate division at a new address, it risks again to face the claims of tax authorities caused by the incompatibility of addresses - legal and actual. It turns out a vicious circle (and, unfortunately, this is not the only problem associated with the activities of separate divisions).

However, over the past six months there have been significant changes regarding separate divisions, in particular, in accounting in the tax authorities of organizations at the location of their separate divisions.

Changes that have already happened

The first step was to enter 10 March 2010, due to the procedure for registration, deregistration in the tax authorities of Russian organizations at the location of their separate divisions<2> (hereinafter - order). This procedure provides for the possibility of registration with the tax authorities of the Organization at the location of its branch (representation) on the basis of an application for registration, which is submitted by the Organization to the Registering Tax Authority at the same time as a statement of amending the constituent documents of a legal entity in relation to the relevant branch ( Representative offices). It should be noted that a previously unified document regulating the procedure for registration (and withdrawal from registration) of separate units did not exist, there were only scattered regulations, which were approved by the forms of documents used in registering such divisions in certain cases, and explanations of officials on This occasion.

<2> Approved by the Order of the Ministry of Finance of Russia of 05.11.2009 N 114n.

Then in a letter from 03/16/2010 N MN-22-6 / [Email Protected] FTS was clarified by the algorithm and features of the tax authorities of the individual provisions of the named procedure, taking into account the current software. In addition, the order of the Federal Tax Service of Russia of 03.24.2010 N mm-7-6 / [Email Protected] The form of the organization's report on the choice of the tax authority was approved for registration of several of its separate divisions, which are in one municipal education in the territories submitted by different tax authorities.

Then there was a change in the position of the main tax authority regarding the incomprehension of legal and actual addresses. So, agreeing, finally, with the opinion of judges, the FNS in a letter dated 05.05.2010 N MN-20-6 / 622 recognized that it was only because it is not in its legal address is too severe. Therefore, the lower-level tax authority of the FTS recommended that the imposition of a fine on the head of the organization in the amount of 5,000 rubles. (P.

What are the differences of a branch from a separate division

3 tbsp. 14.25 Administrative Code of the Russian Federation).

Finally, a letter of the Ministry of Finance of Russia was issued from 18.06.2010 No. 03-02-07 / 1-282, in which, in contrast to previous clarifications on the change of address of a separate division, is indicated on (then another) a bill providing for changes in part The first Tax Code of the Russian Federation, including aimed at improving the procedure for taking into account organizations in the tax authorities.

Changes that were waiting

Changes in Art.

art. 23, 83, 84 of the Tax Code of the Russian Federation, submitted by the Federal Law of July 27, 2010 N 229-FZ<3>, It should be regarded primarily as the fulfillment by the Ministry of Finance of its promises.

And to find out in what order and in what time frames it is necessary to inform the tax authority to change the address of a separate division, we turn to the provisions of the named law.

<3> For the text of the law and comment on it, see the journal "Acts and Comments for Accountant", N No. 16, 17, 2010.

According to the new edition of PP. 3 p. 2 art. The 23 Tax Code of the Russian Federation on the taxpayer is entrusted with a duty (it was also earlier) to report on all separate divisions of the Organization created on the territory of the Russian Federation (with the exception of branches and representative offices). Make it need, as before, within a month. Also the taxpayer is imputed changes to the information previously reported in the tax authority About such divisions. To fulfill its execution, legislators took a three-day period.

A three-day period is established for reporting on termination through separate divisions, including branches and representative offices. This period should be met by the organization and in the case of closing of separate divisions (branches and representative offices) (PP. 3.1 of paragraph 2 of Art. 23 of the Tax Code of the Russian Federation). Thus, the taxpayer will be reserved a shorter period for filing close information, rather than a month according to the previously active edition.

In addition, the list of methods of submission by taxpayers such information (clause 7 of Art. 23 of the Tax Code of the Russian Federation) will also be expanded. Now the name is provided with the possibility of filing messages not only in person or through a representative, but also in electronic form in telecommunication channels of communication, which is significantly, in our opinion, it will simplify this procedure for the taxpayer.

In this regard, taking into account the changes made by the next step towards streamlining the procedure for submitting information on separate divisions should be the approval of new forms (formats) of reports, as well as the procedure for their presentation, which, by virtue of paragraph 7 of Art. The NK of the Russian Federation is approved by the country's head tax.

So, from the literal reading of PP. 3 p. 2 art. 23 NK RF (in the new edition) it follows that the list changes made to information On a separate division, not specified. At the same time, the change of its location (or the change of the address) is fully, according to the author, meets the sign changeMoreover, paragraph 4 of Art. 84 of the Tax Code of the Russian Federation (in the new edition) directly indicates: in case changes in location Separed division of the organization removing it from accounting is carried out by the tax authorityin which the organization was registered. And to make this tax authorities are obliged within five days from the date of receipt of the report submitted (sent) by the Russian organization in accordance with paragraph 2 of Art. 23 of the Tax Code of the Russian Federation (which corresponds to paragraph 7 of the title article). Registration Organizations in the tax authority at the new location of a separate division It is carried out on the basis of documents received from the tax authority, at the same place location of a separate division of the organization.

* * *

Thus, taking into account the amendments made to the Tax Code, it can be concluded that the procedure for submitting information to the tax authority about changing the address of a separate division is regulated. True, it will act from the moment of entry into force of these changes, that is, from 09/02/2010<4>. It can be argued that the need to close and open a separate division in connection with the change of its location, which previously insisted the controllers, disappeared.

<4> In accordance with Art. 10 of the Federal Law N 229-FZ This document comes into force on the expiration of one month from the date of official publication (with the exception of individual provisions that come into force on other times). The document was published in the Russian Gazette, N 169, 02.08.2010.

O.P.Grushina

Expert journal

"Actual accounting issues

and taxation "

A separate division is a part of a firm with limited functionality in civil and legal relations and (or) located in a place separated by geographically and equipped at least one stationary workplace. These differences and order of creation will be discussed in this article.

Structural territorially separate division of the organization

As part of the organization's activities, part of its functional can be transmitted to structural units. At the same time, it is important to observe the limit between the allocation of the company as a new legal entity and the territorial and organizational movement of the unit, which will remain an integral part of the company.

One of the differences between such actions is the information that is entered into the Unified State Register of Legal Entities (EGRUL): a new entry is made on creating a company in the order of reorganization, and on a separate division, the tax authorities make a note in the strings allocated for information about the head organization. From this obviously the subordinate position of the divisions. It is emphasized by law. In art. 55 of the Civil Code of the Russian Federation it is indicated that separate divisions are not legal entities, although they are inherent in a number of individualizing features.

List of mandatory features Short:

administrative isolation, expressed in the presence of a selected part of the company's own guide, acting in accordance with the prescription of Art. 55 of the Civil Code of the Russian Federation on the basis of a power of attorney;
territorial separation in which the legal address of the allocated branch of the firm differs from the address of the executive body of a legal entity.

According to the internal decision, some of the company can be endowed with other separate signs. For example, such signs can be:

separate balance;
own personal account;
personal accrual of payments to employees and other persons.

The legal status of the dedicated parts of the company in entrepreneurship and labor relations

The legal status of a separate division implies its dependent status:

The rights of the dedicated part of the firm are significantly limited compared to the functional of the head organization.
For example, although the highest arbitration court has already been disbanded, the rule that remains established by him in an information letter dated 05/14/1998 No. 34: Separate divisions have the right to file claims to court only if they are valid on behalf of the organization. And, as indicated in the appellate definition of the Tyumen Regional Court of 04.06.2012 No. 33-2442 / 2012, separate units are not recognized as a proper defendant, although Art. The Code of Code of Civil Procedure of the Russian Federation and admits a lawsuit against the location of their location.
The activities of the separated divisions are the same work that the company performs in accordance with the types of economic activity assigned to it, as well as the activities of employees (secretaries, lawyers, accountants, etc.) on the creation of conditions for such work or only part of such activities . Providing separate departments to the authority to fulfill the established activities is carried out by a legal entity.
Separate divisions are intermediaries in labor relations, and not their parties. Thus, in determining the Supreme Court of 03.11.2006 No. 5-B06-94, it is indicated that the dedicated part of the company is not endowed by legal entity, and therefore, separate units cannot act as employers.

If the working man is sent to work in a separate division, it qualifies as a way to travel (see the provision on the features of the direction on a business trip, approved. Government Decree No. 749).

Types of separate divisions for GK and the NK RF

Civil Code (Art. 55) and laws on certain types of legal entities recognize the existence of 2 types of separate divisions:

The company's branch is a separate division created to carry out the organization outside the place of its location, the functions of representation or only part of the specified functions depending on the authority transferred by the Company.
The representation of the company is a separate division allocated to protect and present the interests of the company. Representative offices are especially common in organizations operating in several countries.

The Tax Code (Article 11) recognizes with separate divisions any geographically separated part of legal entities if there are stationary jobs. Place of work under Art. 209 of the Labor Code of the Russian Federation is a place where the employee exercises his labor duties or in which he needs to be in order to perform work. Place of work should be monitored by the employer.

The workplace is stationary if it is created more than a month. The last requirement is associated with a period of formulation of a separate division for tax accounting. In accordance with Art. 23 of the Tax Code of the Russian Federation, a legal entity shall notify the tax authorities on the allocation of branches or representative offices within a month from the moment they are created. If the workplace is created for a shorter period, it does not make sense to carry out its tax accounting as a separate division. If it was created for a period of more than a month, the tax service recognizes it with a separate division.

What does the recognition of a separate division such for tax accounting purposes

Despite the fact that in accordance with the indication of Art. 11 of the Tax Code of the Russian Federation, the territorially deliberate part of the company with the per month or more workplace is recognized as a separate unit, its legal capacity is different from the rights and obligations of a branch or representation.

The dedicated part of the company recognized as such for tax purposes, usually does not have an administrative office of management, own property and funds, cannot independently exercise the company's authority or to protect its interests. The reason for this is the goal of recognition by the FNS authorities by the division of the company of territories with occupational work places.

As stated in Art. 11 of the Tax Code of the Russian Federation, the recognition of a separate division is made in order to fulfill the legislation on taxes and fees.

For example, if the organization develops subsoil in the Far East, and its executive body is located in Central Russia, then pay taxes at the location of the legal entity are inappropriate for tax control, as well as for other reasons. Under art. 335 Tax Code of the Russian Federation The company is registered at the place of mining. It is obvious that their prey is stretched more than a month, and the workplace of the staff will be mines, a quarry, etc. The tax authorities may recognize the availability of a separate division for the purposes of paying tax on mining of mineral resources.

The procedure for creating a separate division

Unlike separate divisions that acquire such status on the instructions of the tax authority, branches and representative offices are created on a more complex procedure. The following steps are distinguished:

Adoption on the procedure for the allocation of part of the company established by law or internal acts of the company.

For example, the law "On Limited Liability Societies" of 08.02.1998 No. 14-FZ defined the following decision procedure:

making a question for consideration by the general meeting of shareholders 30 days before its convocation;
reviewing the question;
consent 2/3 of the meeting participants with the opening of a separate division.

In art. 65 of the Law "On Joint-Stock Companies" dated December 26, 1995 No. 208-FZ said that the creation of branches and representative offices may refer to the competence of the Board of Directors, if it is provided for by the Company's Charter.

The adoption of a local act regulating the work of a separate division of the company. This is usually a provision about the branch / representation.
Appointment by order of the head of the head organization of the leadership of a separate division. Typically, a power of attorney addressed to the name of the department head, since without it the head will not be able to manage the company's department (Art. 55 of the Civil Code of the Russian Federation).
Feeding in the FNS statements in the form of P14001, approved. Order of the FTS "On Approval of Forms and Requirements ..." of 01/25/2012 No. MMB-7-6 / [Email Protected], on entering into an incorporation information about the division. As indicated in the letter of the Department of Tax Policy of the Ministry of Finance of the Russian Federation dated December 16, 2009 No. 03-02-07 / 1-541, a separate division of a legal entity is considered to be created from the moment of adding additions to the State Register.
Feeding in the FNS Blanca C-09-3-1, approved. Order of the FTS dated 09.06.2011 No. MMB-7-6 / [Email Protected] within a month after the selection of the organization's part. This is done to form a separate division into account in the tax service.

Sample position on a separate division of LLC, JSC

In art. 5 of Law No. 14-ФЗ determined that LLC is valid on the basis of a state-approved provision. Typically, the situation is similar to both with other legal entities (see Art. 91 of Law No. 208-FZ, etc.).

general provisions as a set of information about the head organization and the part thereof, somehow: names, addresses, etc.;
the goal of creating, for example, ensuring compliance with the interests of a legal entity;
legal status as an union of rights, duties and responsibilities;
control procedure carried out by the head office;
data on the procedure for managing, the competence of the leadership;
participation in labor relations;
the procedure for disbanding the unit;
other provisions as needed.

Reporting of separate divisions in 2017-2018

One of the manifestations of control over branches and representative offices from a legal entity and state bodies is to check reporting.

For the external reporting, a separate division of a legal entity in 2017-2018 provides documents monthly:

Tax declarations, if the division is charged:
- pay transport tax and property tax organization;
- recove the tax on their income from earning employees.
The form of CBD 1151111, approved. Order of the FTS of 10.10.2016 No. MMB-7-11 / [Email Protected], on the payment of insurance premiums in the FTS.
Form 4-FSS, app. Order of the FSS dated September 26, 2016 No. 381, for the report to the Social Insurance Fund about the payment of professional injury risk insurance contributions.
Form of the SZV-M, app. Decree of the Board of the Russian Federation of the Russian Federation of 01.02.2016 No. 83P, to inform the Pension Fund on Contributions to Pension Insurance of Workers.
Other documents.

Internal statements are determined in accordance with the indication of the parent company. It includes the transfer of accounting documentation, information on the execution of plans, etc., which means for a separate division of the organization, the emergence of the need to draw up additional reports in the formations established in the organization.

Summarize. A separate structural unit of a legal entity is a part of the company that is separated by geographically and administratively for the purpose of carrying out activities similar to the direction of the head company, and if necessary, also to submit its interests.

In addition to the branches allocated in civil law and representative offices, the tax authorities for the execution of the Tax Code of the Russian Federation and other tax acts may recognize the territorially dedicated part of the legal entity, if inpatient jobs are equipped in them.

The presence of the company in new territories is necessary for the development of market niches. However, the opening of the division often causes many questions. These structures suggest taxizing the taxes that need to register correctly and reflect in accounting.

What is a separate division?

Separed division of the company - This is a territorially separated structure in which there are jobs with an appropriate level of the organization. The latest requirement is presented - they must be stationary. Legal status A separate division is endowed only when it opens for a period exceeding the month.

The division is recognized as separately even if its appearance is not recorded in constituent and administrative documentation. It also does not matter a list of powers that are assigned to the structure. The latter rule is reflected in paragraph 2 of Article 11 of the NK.

Signs of a separate division

OP meets two main characteristics:

On its territory there are stationary jobs. They will be operated for at least one month.
The structure is located in the territorial distance from the main office.
The division must be created by the company itself.

IMPORTANT! Under the workplace, under Article 209 of the TC, it is understood to be the place for which an employee comes to fulfill its official functions. The workplace must be monitored by the employer. For these standards, work at home is not suitable. An employee's apartment cannot be considered a workplace. For these signs, the work of the cleaner hired for cleaning the client's office is also. Such a "division" was not opened by the head office. Premises for work were not rented, not purchased. Therefore, in this situation there are no signs of a separate division. Payment terminals, ATMs also do not include payment terminals.

The signs under consideration are determined on the basis of the following factors:

conditions prescribed in the contract;
relationship between workers and organization.

Under territorial isolation is understood as the situation in which the addresses of the head office and its divisions differ.

Opening features and goals

OP can be created in order to present the interests of the company and their protection. It usually opens for the following purposes:

A legal entity was registered, but the leaders did not remove the office. All correspondence comes to the legal address. That is, to the address of the owner of Yul. But with the beginning of the functioning of the organization it is difficult to work in a similar order. The actual location will be required.
It was decided to expand the business, mastering markets in other cities.

If the additional structure is part of the functions of the main office, it makes sense to open a branch.

Varieties

A separate division includes two forms:

Branch. Takes part of the features of the head office. His activity is relatively universal.
Representation. Represents the interests of the organization, protects them.

In most cases, it makes sense to open the branch. This is a broader concept that makes it imposing various functions on the division. Regardless of the selected form, the OP will act on the basis of the rules approved by the main office.

How to open a separate division

To open the OP, the creation of internal documentation will be created. It includes, signed by members of the Board of Directors or representatives of the Assembly of Auctioneners. The order indicates the information:

name of op;
primary document, on the basis of which a division is created (for example, a protocol of the meeting of the Board of Directors);
location of the OP;
head of a separate structure;
the term of registration.

The order should stand the signature of the head of the central office. Then the position is created on the OP. It indicates the following data:

the powers of the unit;
functions;
activity;
composition of the management state;
other points related to work.

Only after the creation of all internal orders can be started at the registration and other legal actions on design.

Do you need to register a separate division?

The formation of the OP should notify the tax authority. But registration in the FIU and insurance companies is not always needed. This is a mandatory measure only with the following circumstances:

The presence of a selected balance.
Open current account.
Accrual of wages.

If all the listed features are absent, then it is not necessary to register a separate division.

Creating OP from the point of view of taxation

The creation of the OP entails certain tax consequences:

tax registration;
need to pay fees;
calculation of fees at the location of the OP.

In 2 Article 23 of the NC, it is indicated that the owner of the unit is obliged to notify the tax authorities on its formation. In the opposite case, a decision will be made on the sanctions in the form of tax or administrative responsibility. The dimensions of fines range from 10 thousand rubles to 30 minimum wages.

IMPORTANT! The law states that if the taxpayer has already been recorded, to additionally join it due to the opening of the OP is not required. This rule was established by paragraph 39 of the Resolution of the Plenum of February 28, 2001. It implies cases when the OP is open in the territory of the municipality where the head office is located.

Timing

For registration required to submit. It is provided, according to 23 and 83, the article of the Tax Code, on the following dates:

Within 30 days from the date of reorganization or liquidation.
Within 30 days from the date of creation of the unit.

You need to go to the tax authority at the location of the OP.

Do you need to go to the tax, if a separate unit does not lead activities?

The tax legislation adopted the rate that can read DVOHO. If you take it literally, then the tax does not need to submit applications until the unit is started to conduct activities. However, this solution may be fraught with a company.

The law says that the application must be filed within 30 days after the opening. If the OP will begin its activities after 2 months and will be put on accounting for this period, the set time for submission will be reduced.

IMPORTANT! You need to report not only about opening, but also on the closing of the OP. The application for liquidation is compiled by software.

Summary.
The opening of the division is taken into account in the tax inspection and other bodies. The new structure must be registered on the time being, otherwise you will have to pay a fine. There are clear signs of OP, on the basis of which education receives the corresponding legal status. If all the signs are not present, then the formed structure cannot be considered a separate division.

The tax authorities are trying to fit under the concept of "separate division" any activity of the company. We will understand in detail what is a separate division, and what is not. And also, when you need to register, and which threatens the penalty for violations.

What is a separate division

Concept "Separate division"the organizations are given in paragraph 2 of Article 11 of the Tax Code of the Russian Federation. Thus, any territorial division from it is considered a separate division of the organization, at the location of which stationary jobs are equipped. The workplace is considered stationary if it is created for a period of more than one month.

From this definition, we can conclude that the part of the organization is recognized by its separate unit if there are following signs:

territorial location outside the location of the organization. That is, the address of the structural unit should differ from the address of the organization specified in the constituent documents;
equipment at the location of a separate division of jobs for more than one month.

The concept of workplace is contained in Article 209 of the Labor Code. This place in which the employee must be or in which he must arrive in connection with his work and which is directly or indirectly under the control of the employer.

In practice, sometimes there is a question whether it is possible to talk about a separate division if the organization is equipped with jobs for "other people's" workers. For example, the organization built a building and equipped office premises in it for renting.

From the above definition it follows that the workplace is directly related to the employee who has entered into an employment contract with the employer's workplace.

In articles 15 and 16 of the Labor Code of the Russian Federation, it is said that the employee and the employer are persons who, on the basis of the employment contract between them, have entered labor relations. In other words, the employer can only be the organization with which the employee has entered into an employment contract.

It follows the conclusion: stationary jobs referred to in paragraph 2 of Article 11 of the Tax Code of the Russian Federation, these are the workplaces equipped for more than one month, equipped with the organization for self workers. That is, at the place of finding a separate division, labor duties of employees of the organization should be carried out. Equipment of jobs for employees of another organization to form a separate division does not lead.

The result is confirmed and given in paragraph 2 of Article 11 of the Tax Code of the Russian Federation by determining the location of separed division. This recognizes the place of exercise by the organization through its separate division.

The management of the organization through a separate division in the absence of the organization at the place of its location is impossible.

Example 1.

Condor LLC is registered in Tver. The company acquired an office in Moscow and passed it for rent. The office has only tenant employees.

In this case, Condor has a separate division in Moscow.

However, be attentive: common labor relations are often hidden for civil-legal contracts. Therefore, such treaties are an object of close attention in the inspections conducted by labor inspection.

If it is proved that the civil contract is concluded only with the aim of "masking" of labor relations, the fine is not able to power. To present claims related to tax registration, tax pays and reporting on the location of such a separate unit, and tax authorities.

Often, this question is asked: how to be if only one workplace is created? The literal interpretation of the definition given in Article 11 of the Tax Code of the Russian Federation may lead to the conclusion that there is at least two jobs for the recognition of a separate division. After all, the definition says that at the location of a separate division, it is necessary Stationary jobs.

However, this does not mean that the provision of the Code requires two or more jobs. The condition for the creation of stationary jobs established by Article 11 of the Code will be performed, even if only one workplace is equipped.

As a result, only one workplace was created in a territorially separable structural unit, such a unit is considered to be created for the purposes of taxation. For example, at the location of the currency exchange points, as a rule, one workplace is created. At the same time, banks recognize these exchange offices as separate divisions.

Example 2.

LLC Atlant is registered in Omsk. The society has acquired production facilities in the Tomsk region, unsuitable for operation and requiring overhame. For the protection of the facility at the time of repair, a security guard was employed.

In this case, despite the fact that only one stationary workplace was created, Atlanta has a separate division in the Tomsk region.

When creating a separate division, the company issues such an order.

Branches, representative offices and separate divisions: What is the connection?

If you carefully read the definition of the concept in paragraph 2 "Separate divisions", You can see one interesting detail. It is determined through the concept of "geographically separated from the organization of the division." The latter should be interpreted in the meaning of it, in which it is used in other industries of law (clause 1 of Article 11 of the Code).

According to Article 55 of the Civil Code of the Russian Federation, separate divisions of the legal entity located outside of its location (that is, geographically separated divisions) may exist in two forms - branches or representative offices.

Branches and representative offices operate on the basis of approved provisions and should be specified in the constituent documents of the Organization (clause 3 of Art. 55 of the Civil Code of the Russian Federation).

A separate division is considered to be created independently of the implementation of the procedure for execution, provided for in paragraph 3 of Article 55 of the Civil Code of the Russian Federation for branches and representative offices. It is paragraph 2 of Article 11 of the Tax Code of the Russian Federation. In particular, to be considered created, a separate division does not have to be specified in the constituent documents.

Thus, a separate division to recognize it as such from the point of view of tax legislation should have established clauses clauses established by paragraph 2. It can be created both in the form of a representation or branch and otherwise, not contrary to the legislation of the Russian Federation.

Example 3.

We use the conditions of the example 1. Suppose that Condor LLC has opened a representative office at the location of the acquired office. It employs employees of society.

In this case, Condor arises a separate division in Moscow.

A separate division was created: what to do next?

Similarly, it should be reported on the liquidation of units. The organization may consist of several tax inspectorates. In this case, it should inform about the creation of a separate division of all tax inspections, where it consists.

Example 4.

CJSC Topol is registered in Moscow and consists in taking into account only in the capital tax inspectorate. In 2013, it acquired the store in St. Petersburg and passed it for rent. Since real estate was acquired, the Society fell on tax accounting in St. Petersburg. From January 1, 2014, the lease agreement was terminated and decided to trade independently. For this, workers were gained to the store.

In this case, a separate division is considered to be created from January 1, 2014. However, the organization is not required to re-establish tax accounting in St. Petersburg. It should only inform tax inspections in Moscow and St. Petersburg on the creation of a separate division.

Sanctions for violations

If the organization submits a statement of tax accounting at the location of a separate unit with a violation of a monthly period allotted for this, it faces a fine. If the organization is late with the application of the application, then it faces a fine of 10,000 rubles. This is stated in Article 116 of the Tax Code of the Russian Federation.

If the organization not only exertes the application of the application, but also will begin activities at the location of a separate division, the responsibility will come in accordance with paragraph 2 of Article 116 of the Code. The penalty will be calculated as the proportion of income obtained as a result of such activities (10%). The minimum penalty is 40,000 rubles.

Sanctions threaten not only the organization, but also to its officials who have listed violations. For the delay in filing the application, a fine is charged from 500 to 1000 rubles, and if at this time a separate division was led by activity - from 2000 to 3000 rubles. Article 15.3 of the Code of the Russian Federation on administrative offenses is read about this.

Finally, you should not forget that at the location of the separated divisions you need to pay some taxes and donate reporting. An organization that violates these duties risks to face serious problems:

First, it can be held accountable under Article 119 of the Tax Code for failure to provide the tax return.
Secondly, under Article 122 of the Code for non-payment or incomplete tax payment.
Thirdly, at the place of finding a separate division, there is an arrears for which the penalty will be accrued.

Materials for video seminar

Many, seeking to expand the business and increase sales, open new stores and branches of firms. The firm offering services or work through offices in different areas is also not uncommon. Often, in connection with the expansion of the business, the founders of a legal entity decide on the creation of one or more separate divisions.

The existence of a territorially remote division has a number of issues:

- Is it a branch, representation or other separate division?

- What is the difference between one type of a separate division from the other?

- What organizational and tax actions are associated with the opening of various types of separate units?

- How and where to pay taxes and donate reporting?

- Is one remote workplace considered a separate division?

To begin with, consider the concept and signs of a separate division, which will help to distinguish branches and representative offices from other separate units:

In accordance with Art.11 of the Tax Code of the Russian Federation, a separate division of the Organization for tax accounting recognizes any territorially separated division from it, at the location of which stationary jobs are equipped. The recognition of a separate division of the organization is made independently of whether it reflects or not reflects its creation in the constituent or other organizational and administrative documents of the Organization, and on the authority that the specified division is given.

The first distinctive condition for recognizing a separate division for tax purposes is the territorial separation from the organization that has created it. The specified feature means that it should be located on another, different from the location of the organization of the territory.

The second condition for the recognition of the separate division of the organization is such is the presence of equipped stationary jobs at the place of its location. At the same time, the workplace is considered stationary if it is created for a period of more than one month (in accordance with the provisions of Article 6.1 of the Tax Code of the Russian Federation under a month, the calendar month is understood). Since the concept of workplace is not contained in the Tax Code of the Russian Federation, we turn to the Labor Code of the Russian Federation.

In accordance with Article 209 of the Labor Code of the Russian Federation under the workplace, the place is understood where the employee must be or wherever he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer. Between the organization and individuals, both labor and civil law contracts can be concluded, which significantly affects the establishment of the fact of the availability of jobs. Since the concept of workplace is an element of a labor relations system (regulated by the Labor Code of the Russian Federation), it should be recognized that jobs in principle may occur only if an employment contract has been concluded with an individual. The conclusion of any other contracts, including the performance of work or the provision of services, cannot lead to the formation of jobs and, consequently, to the formation of a separate division.

Considering that all division in a separate territory with stationary work places is separate, it turns out, it begins to exist as soon as stationary jobs are ready. Creating a separate division as a legal fact can be stated when the latter (that is, stationary jobs) are created in a different address, rather than the address of the state registration (and, consequently, location) of the organization.

A similar conclusion can be found in a variety of decisions of arbitration courts. For example, in the resolution of the Federal Arbitration Court of the West Siberian District of 15.10.2010 No. A75-430 / 2010, it was concluded that to qualify the actions of the Organization through a separate unit, it is necessary to establish the following circumstances: territorial separation and the fact of employment duties by employees of the organization in The location of a separate division.

Summarizing the foregoing and based on the definition given in Article 11 of the Tax Code of the Russian Federation, taking into account the requirements of paragraph 4 of Article 83 of the Tax Code of the Russian Federation, the following significant signs of a separate division can be distinguished:

the territorial isolation of the property owned by the organization, from the organization itself, regardless of the fact of documenting the creation of an appropriate division;

availability of jobs created for a period of more than one month;

maintaining an organization through the appropriate division.

Now it is necessary to give the concept of branches and representative offices, which is enshrined in civil law.

From Article 55 of the Civil Code of the Russian Federation, it follows that the representation is a separate division of a legal entity, located outside of its location, which represents the interests of a legal entity and implements their protection.

The branch is a separate division of a legal entity, located outside its location and carrying out all its functions or part, including the functions of representation.

Representative offices and branch are not legal entities. They carry out their activities on behalf of the legal entity that created their legal entity, which is responsible for their activities. They are endowed with the property that created them by a legal entity and operate on the basis of the provisions approved by him. This property is assigned to the relevant branch or representation, but is either owned by a legal entity, or belongs to a legal entity on another legal basis. In accounting, the above property is reflected simultaneously on a separate balance sheet of a branch or representation, and on the balance sheet of a legal entity. In contrast, the division of the organization, which is a separate division in accordance with the Tax Code of the Russian Federation may not have a separate balance.

The heads of branches and representative offices of the Company are appointed by the legal entity authorized by this in accordance with its constituent documents, and operate on the basis of his power of attorney. The above requirement for divisions that are separate in accordance with the Tax Code of the Russian Federation is absent.

The need for power of attorney is also indicated in paragraph 20 of the Resolution of the Plenums of the Armed Forces of the Russian Federation and the Russian Federation of July 1, 1996, N 6/8, which states that the relevant powers of the head of the branch (representation) must be certified by attorney and cannot be based only on the instructions contained In the constituent documents of a legal entity, the situation on the branch (representation), or to appear from the situation in which the head of the branch is valid.

The difference between branches and representative offices from each other is in the circle of tasks they perform. The branch carries out the functions of a legal entity, under which the activities of the production and other activities of the legal entity are entitled to engage in accordance with the law and its constituent documents. The objectives of the representative office are limited. They consist of representing and protecting the interests of a legal entity, i.e. In the functions carried out within the framework of the Institute of Representative Office for the powers based on attorney.

Consequently, representative offices include separate divisions that advocate in the interests of the organization and protect them, and to branches are performing all or part of its functions, including representative (, and "). And those and other structural units should be indicated in constituent documents.

When comparing the concept of "a separate division of the organization", given in Article 11 of the Tax Code of the Russian Federation, and the concept of "branch" disclosed in Article 55 of the Civil Code of the Russian Federation, it is clear that the concept of "separable division of the organization" is wider and includes any types of organizations of organizations, including including branches. Consequently, when solving the issue of the organization of a branch (representation), it is necessary to consider as general features established in

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