A separate subdivision is open, but there are no employees. Contributions to off-budget state funds

Tax authorities are trying to fit any activity of the company under the concept of a "separate division". Let's take a closer look at what is a separate unit and what is not. And also when you need to register, and what the penalty for violations is.

What is a separate subdivision

Concept "separate subdivision" organization is given in paragraph 2 of Article 11 of the Tax Code of the Russian Federation. So, a separate subdivision of an organization is any subdivision geographically separate from it, at the location of which stationary workplaces are equipped. A workplace is considered stationary if it is created for a period of more than one month.

From this definition, it can be concluded that an integral part of an organization is recognized as a separate subdivision in the presence of the following features:

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

There is no concept of a workplace in tax legislation. Therefore, the definition given in other branches of legislation should be used. This is stated in paragraph 1 of Article 11 of the Tax Code of the Russian Federation.

The concept of a workplace is contained in article 209 of the Labor Code. This is the place where the 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.

In practice, the question sometimes arises whether it is possible to speak of a separate subdivision in the event that the organization has equipped workplaces for "foreign" workers. For example, an organization has constructed a building and equipped it with office space for rent.

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.

Articles 15 and 16 of the Labor Code of the Russian Federation say that an employee and an employer are persons who, on the basis of an 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 follows: stationary jobs, which are referred to in paragraph 2 of Article 11 of the Tax Code of the Russian Federation, are jobs created for a period of more than one month, equipped by an organization for their workers. That is, at the location of a separate subdivision, employees of the organization must perform their labor duties. The equipment of workplaces for employees of another organization does not lead to the formation of a separate unit.

This conclusion is confirmed by the definition of the location given in paragraph 2 of Article 11 of the Tax Code of the Russian Federation a separate subdivision... This is the place where the organization carries out activities through its separate subdivision.

Conducting activities by an organization through a separate subdivision in the absence of employees of the organization at its location is impossible.

Example 1

LLC "Kondor" is registered in Tver. The company acquired an office in Moscow and leased it out. Only the tenant's employees work in the office.

In this case, the "Condor" does not have a separate subdivision in Moscow.

Consider the case when an organization rents out of place of its location workplaces created by another organization for its employees. In this situation, there is a reason for classifying these jobs as part of the tenant organization. Thus, the entity will have to recognize the emergence of a separate business unit.

And what if individuals work outside the location of the organization, with whom the organization has drawn up not labor, but civil law contracts (for example, a contract for the provision of services)? In this case, for the purposes of the Tax Code of the Russian Federation, one cannot speak of the creation of a separate subdivision. There are no labor relations with individuals, which means that they cannot be called employees.

However, be careful: civil contracts often hide ordinary labor relations. Therefore, such contracts are the object of close scrutiny during inspections carried out by the labor inspectorate.

If it is proved that the civil contract was concluded only for the purpose of "disguising" labor relations, the fine cannot be avoided. Tax authorities can also file claims related to tax registration, payment of taxes and reporting at the location of such a separate subdivision.

The following question is often asked: what if only one job has been created? A literal interpretation of the definition given in Article 11 of the Tax Code of the Russian Federation may lead to the conclusion that at least two jobs are required for the recognition of a separate subdivision. Indeed, the definition says that at the location of a separate unit, it is necessary to have stationary workplaces.

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

As a result, if only one workplace is created in a geographically separate structural unit, such a unit is considered created for tax purposes. For example, at the location of currency exchange offices, as a rule, one workplace is created. At the same time, banks recognize these exchange offices as separate divisions.

Example 2

Atlant LLC is registered in Omsk. The Company acquired production facilities in the Tomsk Region that were unusable and required major overhaul. A security guard was hired to guard the facility for the duration of the renovation.

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

When creating a separate subdivision, 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 given in paragraph 2 of Article 11 of the Tax Code of the Russian Federation "Separate subdivisions", you can see one interesting detail. It is defined through the concept of "territorially separate from the organization of the unit." The latter should be interpreted in the same meaning in which it is used in other branches of law (clause 1 of article 11 of the Code).

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

Branches and representative offices operate on the basis of approved regulations and must be indicated in the constituent documents of the organization (clause 3 of article 55 of the Civil Code of the Russian Federation).

At the same time, highlighting only two types of separate subdivisions of a legal entity, the Civil Code of the Russian Federation does not restrict a legal entity in the creation of separate subdivisions of other types. Thus, the Civil Code of the Russian Federation does not impose on a legal entity that has created separate divisions in forms other than a branch and a representative office, the obligation to indicate information about them in the constituent documents.

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

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

A separate subdivision is considered created regardless of the implementation of the registration procedure provided for by paragraph 3 of Article 55 of the Civil Code of the Russian Federation for branches and representative offices. This is stated in paragraph 2 of Article 11 of the Tax Code of the Russian Federation. In particular, in order to be considered created, a separate subdivision does not have to be indicated in the constituent documents.

Thus, in order to be recognized as such from the point of view of tax legislation, a separate subdivision must have the characteristics established by paragraph 2 of Article 11 of the Code. It can be created both in the form of a representative office or a branch, and in another form that does not contradict the legislation of the Russian Federation.

Example 3

Let's use the conditions of example 1. Suppose that LLC “Kondor” has opened a representative office at the location of the acquired office. Employees of the society work in it.

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

A separate division has been created: what to do next?

The creation of a separate unit requires the organization to fulfill certain responsibilities. In particular, it must register with the tax authority at the location of each separate subdivision. This requirement is enshrined in paragraph 1 of Article 83 of the Tax Code of the Russian Federation. An application for registration is submitted within a month after the creation of a separate subdivision.

When is a unit considered established? When stationary workplaces are equipped in it. Such a date can be, for example, the day when the employee started his job at the location of the unit.

As you know, in addition to registering at the location of separate divisions, an organization must register with tax inspectorates at the location of its real estate and vehicles subject to taxation. Therefore, if the organization is already registered with the tax office at the location of the separate subdivision, you do not need to re-register.

Likewise, the liquidation of units should be reported. An organization can be registered with several tax offices. In this case, she must inform all tax inspectorates where she is registered about the creation of a separate subdivision.

Example 4

ZAO Topol is registered in Moscow and is registered only with the Moscow tax inspectorate. In 2013, it acquired a store in St. Petersburg and leased it out. Since the real estate was acquired, the company registered with the tax authorities in St. Petersburg. On January 1, 2014, the CJSC terminated the lease agreement and decided to carry out trading activities on its own. For this, workers were recruited to the store.

In this case, a separate subdivision is considered created from January 1, 2014. However, the organization is not obliged to re-register with the tax authorities in St. Petersburg. It only has to inform the tax inspectorates in Moscow and St. Petersburg about the creation of a separate subdivision.

Sanctions for violations

If an organization submits an application for tax registration at the location of a separate subdivision in violation of the monthly period allotted for this, it faces a fine. If the organization is late with the submission 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 delays the filing of the application, but also starts activities at the location of the separate unit, liability will arise in accordance with paragraph 2 of Article 116 of the Code. The fine will be calculated as a share of the income received as a result of such activities (10%). The minimum fine is 40,000 rubles.

Sanctions threaten not only the organization, but also its officials who committed the listed violations. For a delay in filing an application, a fine from 500 to 1000 rubles is charged, and if at this time a separate division was conducting activities - from 2000 to 3000 rubles. This is stated in article 15.3 of the Code of Administrative Offenses of the Russian Federation.

Finally, do not forget that at the location of the separate divisions you need to pay some taxes and submit reports. An organization that violates these responsibilities runs the risk of facing serious problems:

• First, she can be held liable under Article 119 of the Tax Code of the Russian Federation for failure to submit a tax return.
• Secondly, under Article 122 of the Code for non-payment or incomplete payment of tax.
• Thirdly, at the location of the separate subdivision, arrears are formed, on which penalties will be charged.

Materials for the video seminar

Many, in an effort to expand their business and increase sales, open new stores and branches of firms. A 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 to create one or more separate divisions.

The presence of a geographically remote subdivision in an organization raises a number of questions:

- Is it a branch, representative office or other separate subdivision?

- What is the difference between one type of a separate subdivision from another?

- What organizational and tax actions are associated with the opening of different types of separate divisions?

- How and where to pay taxes and submit reports?

- Is one remote workplace considered a separate subdivision?

To begin with, let's consider the concept and features of a separate division, which will help distinguish branches and representative offices from other separate divisions:

In accordance with Article 11 of the Tax Code of the Russian Federation, a separate subdivision of an organization for tax accounting purposes is any subdivision geographically separate from it, at the location of which stationary workplaces are equipped. Recognition of a separate division of an organization as such is made regardless of whether its creation is reflected or not reflected in the constituent or other organizational and administrative documents of the organization, and from the powers vested in this division.

The first distinguishing condition for the recognition of a separate subdivision for tax purposes is territorial isolation from the organization that created it. The indicated sign means that it should be located on a different territory from the location of the organization.

The second condition for the recognition of a separate division of an organization as such is the availability of equipped stationary workstations at its location. In this case, a 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, a month is understood as a calendar month). Since the concept of a 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, a workplace is understood as 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. Between an organization and an individual, 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 a workplace is an element of the system of labor relations (regulated by the Labor Code of the Russian Federation), it should be recognized that, in principle, jobs can arise only if an employment contract is 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, therefore, to the formation of a separate division.

Considering that any subdivision on a separate territory with stationary jobs is isolated, it turns out that it begins to exist as soon as stationary jobs are ready. The creation of a separate unit as a legal fact can be stated when the latter (that is, stationary jobs) are created at a different address than the address of the state registration (and, therefore, the location) of the organization.

A similar conclusion can be found in many decisions of arbitration courts. So, for example, in the ruling of the Federal Arbitration Court of the West Siberian District of 15.10.2010 N A75-430 / 2010, it was concluded that in order to qualify the actions of an organization through a separate subdivision, it is necessary to establish the presence of the following circumstances: location of a separate subdivision.

Summarizing the above 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 essential features of a separate subdivision can be distinguished:

territorial isolation of the property belonging to the organization from the organization itself, regardless of the fact of the documentary registration of the creation of the corresponding subdivision;

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

organization of activities through the appropriate division.

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

It follows from Article 55 of the Civil Code of the Russian Federation that a representative office is a separate subdivision of a legal entity located outside its location, which represents the interests of a 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 a representative office.

Representative offices and a branch are not legal entities. They carry out their activities on behalf of the legal entity that created them, which is responsible for their activities. They are endowed with property by the legal entity that created them and act on the basis of the provisions approved by it. This property is assigned to the corresponding branch or representative office, 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 the separate balance sheet of a branch or representative office, and on the balance sheet of a legal entity. In contrast, a subdivision of an organization, which is a separate subdivision in accordance with the Tax Code of the Russian Federation, may not have a separate balance sheet.

The heads of the branches and representative offices of the company are appointed by the body of the legal entity, authorized to do so in accordance with its constituent documents, and act on the basis of its power of attorney. The above requirement for subdivisions that are separate in accordance with the Tax Code of the Russian Federation is absent.

The need for a 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 Supreme Arbitration Court of the Russian Federation of July 1, 1996 N 6/8, which states that the corresponding powers of the head of a branch (representative office) must be certified by a power of attorney and cannot be based only on instructions contained in the constituent documents of the legal entity, the regulations on the branch (representative office), or be clear from the situation in which the head of the branch operates.

The difference between branches and representative offices 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, which it has the right to engage in in accordance with the law and its constituent documents. The mission of the representative office is limited. They consist in the representation and protection of the interests of a legal entity, i.e. in the functions carried out within the framework of the institution of representation by virtue of powers based on a power of attorney.

Consequently, representative offices include separate subdivisions that act in the interests of the organization and protect them, and branches that perform all or part of its functions, including representative (, and "). Both those and other structural units must be indicated in the constituent documents.

When comparing the concept of "a separate subdivision of an organization", given in Article 11 of the Tax Code of the Russian Federation, and the concept of a "branch" disclosed in Article 55 of the Civil Code of the Russian Federation, it is clear that the concept of a "separate subdivision of an organization" is broader and includes any types of subdivisions of organizations, including including branches. Consequently, when deciding whether an organization has a branch (representative office), it is necessary to take into account as general signs established in

Oddly enough it sounds, but you can create a separate unit unintentionally. And worst of all, such an “unintentional” creation of a separate unit can have negative consequences. In the article, we will consider such cases, which will help our readers to avoid negative consequences.

A separate subdivision of an organization is any subdivision geographically separate from it, at the location of which stationary workplaces are equipped, while a workplace is considered created if it is created for a period of more than one month.

Moreover, the unit will be recognized as separate, 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 this unit (clause 2 of article 11 of the Tax Code of the Russian Federation).

When a separate subdivision is considered to be created

A separate subdivision is characterized by two characteristics:

1. equipped workplaces created for a period of more than one month;
2. territorial isolation from the head unit.

Let us examine these signs in more detail.

The first sign. The Tax Code does not contain the concept of a workplace, so it is worth referring to the Labor Code.

Workplace - 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 (Article 209 of the Labor Code of the Russian Federation).
For example, recently so-called "virtual offices" have become more and more popular, when employees of an organization work remotely, that is, at home, on home computers, etc. Accordingly, the employee's apartment and his home computer are not under the control of the employer, whether direct or indirect, therefore, the creation of a separate division does not occur.

In addition, the workplace must be created by the employing organization itself (rented premises or acquired ownership). For example, if a cleaning company sends a cleaning lady to a client's office for daily cleaning for a period of two months, then there will be no separate department either. Indeed, if the premises or part of it does not belong to the employing organization, then the cleaner will be considered a posted employee (166 of the Labor Code of the Russian Federation).

According to the Ministry of Finance, each case of the potential creation of a separate subdivision should be considered separately. So, the specialists of the financial department explained that in order to resolve the issue of the presence or absence of signs of a separate division of the organization, the essential conditions of contracts (lease, contract, provision of services or others) concluded between the organization and its counterparty, the nature of the relationship between the organization and its employees should be taken into account. , as well as other factual circumstances of the organization's activities outside its location (letter of the Ministry of Finance of Russia dated 18.02.2010 N 03-02-07 / 1-67).

Among other things, workplaces must be equipped, that is, each workplace must be adapted to perform the function for which it was created.
Thus, we can conclude that the workplace should be equipped, created by the employer and be under his direct or indirect control.

The second symptom. The Tax Code does not define territorial isolation. However, in our opinion, a subdivision will be considered geographically separate if the address of its location differs from the address of the head office specified in the constituent documents.

For reference: the location of a separate subdivision of an organization is the place where this organization carries out activities through its separate subdivision (clause 2 of article 11 of the Tax Code of the Russian Federation).
Based on the foregoing, we can conclude that a separate subdivision will be considered open from the date of equipping workplaces at an address different from the address of the location of the organization.

Separate subdivision, branch, representative office

Civil law distinguishes two types of separate divisions: a branch and a representative office.
A representative office is a separate subdivision of a legal entity located outside its location, which represents the interests of a legal entity and protects them (clause 1 of article 55 of the Civil Code of the Russian Federation).

The concept of "branch" is somewhat broader than the concept of "representation". A branch is a separate subdivision of a legal entity located outside its location and performing all of its functions or part of them, including the functions of a representative office (clause 2 of article 55 of the Civil Code of the Russian Federation).

The concept of a “separate unit” is even broader and includes the concepts of “branch” and “representative office”. Each branch or representative office is separate divisions, but not every separate division is a branch or representative office.

In addition, the branch and representative office operate on the basis of the relevant regulations approved by the parent organization and have managers. Information about representative offices and branches must be indicated in the constituent documents of the legal entity that created them (clause 3 of article 55 of the Civil Code of the Russian Federation).

A separate subdivision does not have to have a manager. Also, there is no obligation for the parent organization to approve a special provision for a separate subdivision. And it is not necessary to indicate information about him in the constituent documents.

Please note that the representative office and the branch are not legal entities, therefore they do not act as subjects of civil or tax legal relations (clause 3 of article 55 of the Civil Code of the Russian Federation). Also, a separate subdivision is not a legal entity and does not act as a subject of civil and tax legal relations. Branches, representative offices and other separate subdivisions of Russian organizations only fulfill the duties of these organizations to pay taxes (Article 19 of the Tax Code of the Russian Federation).

Registration or notification?

A separate division has been created, what next? And then, if an organization operates through this division, then it must, within one month from the date of the creation of a separate division, submit an application for registration to the tax authority at the location of this separate division (clause 4 of article 83 of the Tax Code of the Russian Federation).

And if a separate division is created, but activity is not carried out through it? If you literally interpret the specified norm, then while activities are not conducted through a separate division, you do not need to apply for registration. However, if, for example, two months after the creation of a separate subdivision, the organization begins to conduct activities through it, then it will be necessary to register. It will be impossible to do this without violating the established time limit in the case under consideration. Therefore, the right decision would be to submit an application for registration within a month from the date of the creation of a separate division, even if activities through it are not yet conducted.

In addition to filing an application for registration, the organization is obliged in all cases to notify the tax authority at the location of the organization within a month from the date of the creation of a separate subdivision. The closure of a separate subdivision must also be reported to the tax authority within a month (subparagraph 3 of clause 2 of article 23 of the Tax Code of the Russian Federation). The message is submitted to the tax authority in the form No. С-09-3, approved by order of the Federal Tax Service of Russia dated April 21, 2009 No. MM-7-6 / [email protected](Clause 7 of Article 23 of the Tax Code of the Russian Federation).

If the organization has created a separate subdivision on the territory of the municipality where the organization itself is located, then there is no need to re-register (clause 1 of article 83 of the Tax Code of the Russian Federation). In this case, it will only be necessary to submit a message on the opening of a separate subdivision in the manner prescribed by subparagraph 3 of paragraph 2 of Article 23 of the Tax Code of the Russian Federation.

And if several separate subdivisions of an organization are located in the same municipality in territories subordinate to different tax authorities, the registration of the organization can be carried out by the tax authority at the location of one of its separate subdivisions, determined by the organization independently (clause 4 of article 83 of the Tax Code of the Russian Federation) ...

To do this, the organization must inform in writing which tax authority it has chosen for registration at the location of the separate subdivision. Moreover, you need to inform the tax authority that the organization has chosen for registration. This can be done using the recommended message form developed by the Federal Tax Service of Russia (KND N 1111051) (appendix to the order of the Federal Tax Service of Russia dated March 24, 2010 N MM-7-6 / [email protected]).

"Legal" and "actual" addresses

Nowadays, such a philistine concept as the legal address of an organization is quite widespread. Speaking a legal address, we mean the address of the location of the organization.

The location of the organization is determined by the place of its state registration. And the state registration of an organization 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 organization without a power of attorney (clause 2 of article 54 of the Civil Code of the Russian Federation).

In other words, the address of the location of the organization is the address that is indicated in the constituent documents.
The actual address is understood as the address where the organization is located and actually operates.
In the opinion of some territorial tax authorities, the difference between a “legal” address and an “actual” one, in fact, is the creation of a separate subdivision. That is, they believe that the actual address is not the organization itself, but its separate subdivision.

In our opinion, this approach is wrong. A separate subdivision, first of all, should be territorially separated from the parent organization. And in a situation where an organization operates at an address different from that specified in the constituent documents, a separate subdivision is not created, since in this case there is no parent organization (there is no one at the “legal” address, and there is no activity there). That is, to recognize the creation of a separate subdivision, there must also be a parent organization.
Nevertheless, in order to avoid unnecessary and unnecessary disputes with the tax authorities, we recommend making changes to the constituent documents by changing the information about the location of the organization.

Under what article is the responsibility?

The Tax Code of the Russian Federation has two articles related to registration.
Article 116 of the Tax Code of the Russian Federation provides for a fine of 5,000 rubles for violating the deadline for submitting an application for tax registration. If the deadline is violated for more than 90 days, the fine will double and amount to 10,000 rubles.
Let's make a reservation right away that the Tax Code does not establish liability for failure to notify the tax authority about the creation or closure of a separate subdivision.
Article 117 of the Tax Code of the Russian Federation provides for responsibility for conducting activities without being registered with a tax authority.

Moreover, the sanctions under this article are much higher than the sanctions under article 116 of the Tax Code of the Russian Federation. Thus, for this offense, Article 117 of the Tax Code of the Russian Federation provides for a fine of 10% of income received from activities that were carried out without being registered with the tax authority, but not less than 20,000 rubles. If such activities were carried out for more than 90 days, then the fine will double and amount to 20% of income, but not less than 40,000 rubles.
In other words, Article 116 of the Tax Code of the Russian Federation should be applied in cases where the organization itself submitted an application for registration, but missed the deadline. Article 117 of the Tax Code of the Russian Federation should be applied in cases where the tax authority discovered and recorded the organization's activities without tax registration.

There is an opinion that the objective side of Article 117 of the Tax Code of the Russian Federation covers only the conduct of activities without registration in general, and not a separate subdivision. That is, if an organization is registered with a tax authority, then it is impossible to hold it accountable for conducting activities through a separate subdivision without registering with the tax authority at its location (Resolution of the Federal Antimonopoly Service of the Moscow District of 20.06.2007 N KA-A40 / 5386 -07, dated 05.10.2007 N KA-A40 / 10377-07, FAS of the North-Western District of 29.04.2004 N A66-6713-03).

However, not all courts share this opinion, for example, the FAS of the Far Eastern District confirmed the legality of bringing a taxpayer to responsibility under Article 117 of the Tax Code of the Russian Federation for conducting activities through a separate subdivision without registration (resolution of 03.09.2008 N F03-A04 / 08-2 / 3593 ).

In conclusion, we note: when expanding your business, do not forget to fulfill the obligations imposed by tax legislation, this will help to avoid unnecessary disputes and save money.

Unlike entrepreneurs, the legislator allows legal entities to open their own separate divisions (OP), 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 and differences.

The purpose of creating structural units is to expand the business, increase sales, open retail outlets or stores, attract consumers, and, as a result, make a profit. Often, depending on the tasks set by the founder or director of the enterprise, in different regions of the country or within the same settlement, he opens various types of EP.

Initially, the company's management needs to figure out what each of the OP 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 locate only one employee remotely from the main office, to which type should this structural unit be attributed? According to the Tax Code, Art. 11 for the purpose of taxation, the legislator recognizes under the OP any unit equipped with stationary workplaces 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 must be regulated by an agreement (labor, civil, etc.). In fact, EP with stationary jobs may arise if the 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, that is, it must be located at a different address. A subdivision is recognized as isolated, regardless of whether information about it is displayed in the company's charter or in other internal documents.

Overview of concepts and types

Yur. a person can open one or several OPs equipped with workplaces.

In turn, they are divided into:

• branches;
• representations;
• simple (ordinary) OP.

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

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

The difference between a branch and a separate subdivision 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 duty of the representative office is to represent and protect the interests of the company;
• an ordinary 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 OP can be a separate legal entity, but is created for the purpose of carrying out activities on behalf of the main enterprise, that is, its creator. EP must act on the basis of authority, which will be approved by the management.

A regular (simple) OP may not maintain 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 in different ways, on the main or its OP.

The body authorized by the constituent documents to manage the branch (representative office) shall appoint 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 OP in 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;
• make changes to the Regulations or Labor Regulations of the main enterprise, i.e. to local documents.

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

It is enough to indicate the address of the OP and make other changes in the internal regulatory documents. The decision to open a branch or representative office is made by voting of the participants or founders with the obligatory entry of entries in the constituent documents. A separate person is appointed to lead. The rest of the issues are resolved on an individual basis in each case.

Specificity and features

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

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

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

In relation to branches (representative offices), the Tax Code makes these requirements an obligation. Depending on the type of OP opened for the tax office, 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.

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

The main document on the basis of which any of the OP should work is the Regulation or Rules on the procedure for work. At the same time, a copy of the charter must be transferred to the tax office at the location of the branch (representative office); this does not need to be done with respect to a simple OP.

The main differences between a branch and a separate subdivision

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

The table can clearly show this:

Other clarifications

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

Registration and registration

Registration is required at the territorial branch of the National Assembly at the location of any OP. If the OP is on a dedicated balance sheet, then it 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 the authorized body makes a decision on opening and writes it down in.

In the territorial office where the main enterprise is registered with the tax authorities, 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;
• Branch (representative office) regulations;
• the charter of the enterprise with the entries on the formation of the new structure, indicating its name and location;
• power of attorney for the appointed manager;
• others upon request.

Within 5 days, the National Assembly is obliged to amend the Unified State Register of Legal Entities and register information about the new structural division of the enterprise in its databases. 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 by the tax department to the territorial branch of the National Assembly at the place where the branch (representative office) is located, where it will be registered. If the OP in the future will maintain a separate balance sheet, then you will have to submit reports, pay taxes at the place where the branch (representative office) is located. Separate Goskomstat codes are also assigned to the new structural unit.

If in the same territory, which is subordinate to different branches of the National Assembly, several EPs 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 EP within 3 days, otherwise the manager will be penalized. When a simple OP opens, the tax office is only notified that a set of places is remotely created at such and such address, the work of which will be controlled by the main organization.

When it is assumed that the EP will open a current account, will independently maintain a balance, calculate and pay salaries to employees, this means the obligation to submit reports to the FIU and the FSS, other budgetary and extra-budgetary funds. The registration of a branch, and in some cases a representative office, will be required in the Funds within a month from the date of opening. All necessary documents are certified by a notary before delivery.

The territorial office of the PF at the location of the branch (representative office) is submitted:

• information on registration with the National Assembly;
• notification of registration of the main enterprise in the PF;
• confirmation from the bank about an open current account;
• registration application;
• others upon request.

Together with an 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 to open an EP;
• the presence of a current account.

Comparative characteristics

The concept of types of OP is absent in the Tax Code, because for taxation the very fact of the opening and operation of a unit is important, and not the powers that the enterprise will entrust to it. The Civil Code lists the differences between the OP in Art. 55, where the functional purpose of each of them is indicated. If, for example, a representative office negotiates with participants in civil turnover 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 the execution of contractual relations, can conduct any activity that the legal entity is engaged in. face.

With regard to a simple EP, 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 individual OPs cannot be independent participants in the turnover, but only enter into labor, civil, tax relations and others on behalf of the legal entity. faces. Therefore, the responsibility for the activities of any EP is borne by the company that opened it.

For example, the difference between a branch and a separate subdivision is that the former can submit a lawsuit on behalf of the enterprise, but it is required to attach a power of attorney to the manager confirming his authority. An ordinary OP cannot do even this, and he does not have a manager at all. Any of the OP cannot be brought to tax liability 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 its location in another constituent entity of the Russian Federation, that is, belonging to a different municipality, and not the presence of a different postal address. But in practice, the National Assembly is guided by the Tax Code and does not attach much importance to this concept, therefore, they are allowed to open an EP in any place other than the location of the main enterprise, even, for example, in a neighboring house or an 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 OP 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 set of workplaces - by internal local acts.

Important Factors

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

All funds and property for the organization of their activities EP receive 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, which will be produced by the branch, will be recorded by the main enterprise, but on separate accounts of the balance sheet.

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. places assumes the beginning of its activities after a while, it is necessary to notify the National Assembly at the place of its location in a month from the moment of opening.

Otherwise, when a simple OP works, you will still have to notify the NS for registration, but with payment of a fine. Any OP is obliged to conduct. The main enterprise will book sheets of cash books separately for all OPs.

Which is better to choose

An important aspect for taxation is the prohibition 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 remotely working places than a branch (representative office).

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

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

While mastering new market niches, companies often have to ensure their presence in “foreign” territories. Since separate subdivisions in many cases affect the calculation and payment of taxes, accountants often have a question: what, in fact, is considered a separate subdivision? About the signs of separate divisions, as well as about who, when and how to notify about their creation, is described in this article.

Separate subdivision in the legislation of the Russian Federation. Codex codex strife

Tax that is listed in budgets of the constituent entities of the Russian Federation... Advance payments of income tax are paid both at the location of the organization and at the location of each of its separate subdivisions based on the share of profit that falls on these separate subdivisions. The procedure for the distribution of profits (determination of the share) is specified in clause 2 of Art. 288 of the Tax Code of the Russian Federation.

Income tax returns must be submitted for each separate subdivision. If the divisions are located in the same region, the organization can submit declarations only to one of them. To exercise this right, it is necessary to notify all tax inspectorates where separate divisions are registered. This must be done before the start of the new tax period.

Personal income tax and separate divisions

Organizations - tax agents are obliged to transfer personal income tax to the budget both at the place of their location and at the location of each of their separate subdivisions (). Personal income tax for a separate subdivision is determined based on the amount of taxable income that is accrued and paid to employees of this subdivision.

If a separate subdivision is not allocated to a separate balance sheet, the head organization at the place of registration of the subdivision must transfer personal income tax to the budget (letter of the Ministry of Finance of the Russian Federation dated March 29, 2010 No. 03-04-06 / 54).

Personal income tax reporting for employees of a separate unit must be submitted at its location (letters of the Ministry of Finance of the Russian Federation dated 07.08.2012 No. 03-04-06 / 3-222, dated 16.12.2011 No. 03-04-06 / 3-348). Information on the accrued and withheld amounts for must be submitted no later than April 1 ().

Insurance contributions to the Pension Fund and the FSS of the Russian Federation

Separate subdivisions independently pay insurance premiums and submit calculations of insurance premiums to the Social Insurance Fund and the Pension Fund of the Russian Federation, if the following conditions are simultaneously met:

• subdivisions are located on the territory of the Russian Federation; divisions have a separate balance sheet;
• subdivisions have their own current account; divisions charge payments and other remuneration in favor of individuals.

If at least one condition is not met, the obligation to pay contributions and submit reports is transferred to the parent organization (letters of the FSS RF dated 05.05.2010 No. 02-03-09 / 08-894p, Ministry of Health and Social Development of Russia dated 09.03.2010 No. 492-19).

It is also necessary to register a separate subdivision in the funds only if the four listed conditions are met (clause 12 of the Resolution of the PF RF Board of 13.10.2008 No. 296P, clause 1 of the Decree of the FSS RF dated 23.03.2004 No. 27).

Property tax of separate subdivisions

The procedure for paying property tax by separate divisions is enshrined in Art. Separate subdivisions take into account movable property and pay the corresponding tax if they have a separate balance sheet.

If the subdivision is not allocated to an independent balance sheet, the tax on movable property is paid by the parent organization (letter of the Ministry of Finance of the Russian Federation of January 20, 2012 No. 03-01-11 / 1-19).

The tax base for real estate is determined at the place of its actual location (). Accordingly, a separate subdivision must pay property tax if the property is located on its territory (regardless of the separate balance sheet).

A property tax declaration and calculations for advance payments are submitted to the IFTS at the place of tax payment ().

Separate subdivision transport tax

It is paid at the location of vehicles (clause 1), which is determined in accordance with clauses. 2 p. 5
Do you have an OP? When is it considered created? We will answer these questions in our article.