The institution has separate subdivisions. What is a separate subdivision

Separate subdivision

A separate division is always an additional hassle for an accountant. Problems begin already at the stage of its creation. What's happened separate subdivision? When is it considered created? In which case do you need to register with the tax authorities at the place of its location, and in which not?

What is a separate subdivision

The concept of a separate subdivision of an organization is given in clause 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 the above definition, it can be concluded that component an organization is recognized as its separate subdivision if the following features are present:

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 clause 1 of article 11 of the Tax Code of the Russian Federation.

The concept of a workplace is contained in the Federal Law of 17.07.1999 N 181-FZ "On the basics of labor protection in the Russian Federation".

According to article 1 of the Law workplace 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. A similar definition is contained in Article 209 Labor Code.

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 instance, the organization built a building and equipped it office rooms 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 state 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 mentioned 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 the organization for its employees. 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 of a separate subdivision given in clause 2 of article 11 of the Tax Code of the Russian Federation. 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 jobs 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 "disguise" labor relations, the penalty 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.

<*>For more details, read the article "Civil contract: be careful" // RNK, 2003, N 5. - Approx. ed.

The question is often asked: what if only one job has been created?

Separate subdivision of a legal entity: reporting and taxation

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 subdivision, the presence of stationary jobs is necessary. However, this does not mean that the above provision of the Code requires the presence of 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 instance, 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 in the Tomsk region industrial premises, unusable and requiring overhaul. For the protection of the facility for the period of repair, it was hired to labor contract security guard.

In this case, despite the fact that only one stationary workplace has been created, Atlant 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 "separate subdivision" given in clause 2 of Article 11 of the Tax Code of the Russian Federation, you will notice 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 as 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, territorially 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 other forms 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 in terms of tax legislation.

The creation of branches and representative offices is almost always associated with the equipment of stationary workstations. 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 clause 3 of article 55 of the Civil Code of the Russian Federation for branches and representative offices. This is stated in clause 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 clause 2 of Article 11 of the Code. It can be created both in the form of a representative office or a branch, or 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 subdivision 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 clause 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. The legitimacy of this position was, in particular, confirmed by the Decree of the Federal Arbitration Court of the West Siberian District of 11.11.2002 in case N F04 / 4146-855 / A03-2002.

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 that are subject to taxation. Therefore, if the organization is already registered with the tax inspectorate at the location of the separate subdivision, you do not need to re-register. This is stated in the Letter of the Ministry of Taxes and Duties of Russia dated 08.08.2001 N ШС-6-14 / [email protected]

In addition to registering at the location of a separate subdivision, the organization is also obliged to inform about its creation at the place of its registration. A month is allotted for this from the date of the creation of the subdivision (clause 2 of article 23 of the Tax Code of the Russian Federation). 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... JSC "Topol" is registered in Moscow and is registered only with the Moscow tax inspectorate. In 2002, it acquired a store in St. Petersburg and leased it out. Since it was acquired real estate, the company registered with the tax authorities in St. Petersburg. On January 1, 2003, 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, 2003. However, the organization is not obliged to re-register with tax records 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 by no more than 90 days - 5,000 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 not only delays the filing of the application, but also starts activities at the location of the separate subdivision, liability will arise in accordance with Article 117 of the Code. The penalty will be calculated as a proportion of the income received as a result of such activities (10 or 20% depending on the duration of the activity). The minimum fine is 20,000 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 is charged from 5 to 10 minimum wages (that is, 500 - 1000 rubles), and if at that time a separate division was conducting activities - from 20 to 30 minimum wages (2000 - 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.

Firstly, she can be held liable under Article 119 of the Tax Code of the Russian Federation for failure to submit 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.

<**>Read more about this. reference material"Separate subdivisions: how to pay taxes and submit reports" // RNK, 2003, N 9. - Approx. ed.

S.A. Kumekov

magazine "Russian Tax Courier"

What is a separate division of an organization

Article 11 of the Tax Code of the Russian Federation names three signs of a separate subdivision

In the Civil Code there is such a concept as a separate unit - this is a unit located outside the location of the legal entity, performing all of its functions or part of them.

Reasons for creating a separate subdivision

Business expansion
Optimization of management of structural divisions in other regions
Organization's striving to bring production closer to sources of raw materials requirements environmental legislation on the location of hazardous and harmful industries away from settlements

Signs of a separate subdivision

Territorial isolation - located outside the location of the legal entity
Stationary workplace - implies the presence of workers
Separate - have their own structure of management bodies, determined by the parent organization (Article 209 of the Labor Code of the Russian Federation)

The equipment of a stationary workplace means the creation of all the conditions necessary for the performance of labor duties, as well as the fulfillment of such duties by the employee (letter of the Ministry of Finance dated July 28, 2011 N 03-02-07 / 1-265, resolution of the Federal Antimonopoly Service of the North Caucasus District of June 20, 2007 N F08-3590 / 2007-1449A, FAS Northwestern District from 02.11.2007 in case А26-11293 / 2005).

Separate subdivisions are divided into

Branches
Representative offices
OP on tax legislation

The company can create branches and open representative offices by decision of 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 itself. The main differences between a representative office and a branch of a company lie in the functions performed.

Since in the Tax Code of the Russian Federation and other branches of legislation there is no concept of "structural subdivision of an organization", one should be guided by clause 16 of the Resolution of the Plenum of the RF Armed Forces of March 17, 2004 N 2, in accordance with which structural subdivisions of an organization should be understood as branches, representative offices, and departments , workshops, sites, sectors, etc.

Functions of the Representative Office and the Branch of the Legal Entity

Representative offices exclusively represent the interests of the Company and carry out their protection, while a branch, on the contrary, performs all or part of the functions of the parent Company, including the functions of a representative office.

The branch and representative office of the company are not legal entities and act on the basis of the regulations approved by the company. A branch and a representative office are endowed with property by the company that created them. Heads of representative offices and branches are appointed by a legal entity and act on the basis of a power of attorney.

Does the creation of an EP mean the conclusion of an employment contract with an employee who works outside the office?

According to Art. 57 of the Labor Code of the Russian Federation, mandatory conditions for inclusion in an employment contract are, inter alia, place of work, labor function, conditions that determine the nature of work. When carrying out activities of a traveling nature, there are no grounds for registering an organization with the tax authority at the place of implementation of such activities (letters of the Ministry of Finance of Russia dated 01.03.2012 N 03-02-07 / 1-50, dated 28.07.2011 N 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 work directly at home.

Homeworkers are considered to be persons who have entered into an employment contract for performing work at home from materials and using tools and mechanisms allocated by the employer or purchased by the homeworker at their own expense (Article 310 of the Labor Code of the Russian Federation).

When the organization carries out activities using the labor of a homeworker without stationary jobs, the grounds for registering the organization with the tax authority at the employee's place of residence do not arise.

If for execution labor function and for the interaction between the employer and the employee on issues related to its implementation, the Internet is used, then an agreement on remote work may be concluded between the parties.

According to Art.

312.1 of the Labor Code of the Russian Federation, remote work is the performance of a labor function specified in an employment contract, in particular, outside a stationary workplace. Thereby, teleworking does not imply the equipment of a stationary workplace. Consequently, no matter how long a remote worker is involved, a separate subdivision is not formed.

An organization that concludes a contract for the performance of work by the forces of employees engaged by a third organization does not create a separate subdivision. A separate subdivision arises at the organization that provided personnel.

The workplace must be created for a period of more than one month

The actual time spent by a particular employee in the workplace, which is created or used by the organization outside of its location, is not of fundamental importance for the recognition of a separate unit.

The above signs together mean that the organization carries out activities through its separate division. For purposes tax control a Russian organization at the place of such activity (location of a separate subdivision) must be registered with the tax authority (Art.

Date of creation of a separate subdivision

The creation of a stationary workplace can be confirmed

Premises lease agreement
An employment contract with an employee, in which the workplace is determined at the location of a separate subdivision
Primary documents confirming the conduct of activities at the location of a separate subdivision (invoices, acceptance certificates)

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

If the conduct of activities requires a special permit from authorized bodies, in particular, a license, then the date of its issue can be recognized as the date of the creation of a separate division, since it is from this date that activities can be carried out.

STS when registering a separate subdivision

If an organization has created a separate division, which is not a branch or representative office, and has not indicated it as such in its constituent documents, then it has the right to apply the simplified tax system.

The cash register used by the OP is registered with the IFTS at the location of this unit.

If the OP is not allocated to a separate balance sheet, the organization must pay insurance premiums and submit reports on them to the territorial bodies of the Pension Fund of the Russian Federation and the FSS of the Russian Federation at the place of their location.

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

Types of services from "AAA-Investments LLC"

Registration of companies (LLC / IE; PJSC / JSC)
Registration of non-profit organizations
Registration of changes
Purchase and sale of a share
Changes to the Criminal Code
Changes in the types of activities of the company (OKVED)
Bringing the Articles of Association in accordance with Federal Law No. 312-FZ
Change of name, legal address
Liquidation and reorganization of LLC / PJSC / JSC (CJSC)
Termination of activity as an individual entrepreneur
Other services
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Change of address of a separate subdivision ... Or the promised three years are waiting

Over the course of several years, the Ministry of Finance has promised to amend tax legislation to regulate the procedure for accounting in tax authorities of separate divisions of organizations in connection with a change in their location. A number of written explanations on this issue serve as confirmation. Currently, the Tax Code has been amended, including on tax administration issues. But has the finance department fulfilled its promise?

Tax gap

Let us recall the essence of the problems. The tax legislation of the Russian Federation does not define what is meant by a change in the location of a separate subdivision of an organization, and, as a result, the procedure for accounting in tax authorities of separate subdivisions of an organization is not established when their location is changed.

In this regard (in the absence of any norms of tax legislation regulating the actions of taxpayers when changing the address of a separate subdivision), the Ministry of Finance in its explanations regularly advises taxpayers to be patient and wait for the corresponding changes in the Tax Code, but so far this has not happened, insists on the implementation of the procedure closing and opening a separate subdivision. This is also stated in his recent Letter dated 06/18/2010 N 03-02-07 / 1-282<1>.

A separate division moves to a new office

In practice, the situation is quite common when, after the termination of contractual relations with one lessor, a separate subdivision has to move to another premises, which, of course, implies a change of address. As a result, the taxpayer is obliged to register a separate subdivision at a new address. These are the rules established in Art. Art. 23, 83 of the Tax Code of the Russian Federation.

Note! The Tax Code does not contain instructions on what day to consider the day of the creation of a separate subdivision. 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 subdivision is considered created even if the fact of its creation is not reflected in any organizational and administrative document.

For violation of the deadlines for filing an application for tax registration of an organization in accordance with Art. 116 of the Tax Code of the Russian Federation face penalties ranging from 5,000 to 10,000 rubles.

Indicating in Letter N 03-02-07 / 1-282 that there are no rules in tax legislation governing the procedure for changing the address of a separate subdivision, officials of the Ministry of Finance recommend that taxpayers in this situation deregister it from the tax authority at its old location and register it with tax authority at the new address (see also the Letters of the Ministry of Finance of Russia dated 28.12.2009 N 03-02-07 / 1-575, dated 08.05.2009 N 03-02-07 / 1-236, dated 14.07.2008 N 03-02 -07 / 1-278).

Note. The Ministry of Finance believes that when changing the address of a separate subdivision, the organization must carry out the procedure for closing and opening a separate subdivision.

The tax department adheres to a similar point of view in Letters dated 21.08.2009 N 3-6-03 / 345, dated 02.05.2007 N 09-2-04 / [email protected], moreover, in practice, tax authorities often insist on observing these rules even in the case when an organization is forced to change the location of a separate subdivision within the territory under the jurisdiction of one tax authority.

This approach to changing the address of a separate division was also supported by the judges in the Resolution of the FAS VVO dated September 16, 2008 in case N A82-14769 / 2007-20. As the arbitrators pointed out, the provisions of the Tax Code of the Russian Federation do not provide for the procedure for changing the location of a separate subdivision of a legal entity by making such an entry, but only contain a procedure for deregistering an organization at the location of a separate subdivision and registering it regardless of the location of the tax authority.

In the event that the organization does not follow the recommendations of the controllers and does not close a separate subdivision at the old address, tax authorities often return without execution the message of the organization about the registration of its separate subdivision for tax accounting at a new address, sent in order to fulfill the obligation provided for in paragraphs. 3 p. 2 art. 23 of the Tax Code of the Russian Federation (form No. С-09-3 "Notification of the creation (closure) of a separate division of the organization in the territory of the Russian Federation", approved by Order of the Federal Tax Service of Russia dated April 21, 2009 No. MM-7-6 / [email protected], or any written notice).

The requirements of the controllers for taxpayers when changing the address of a separate subdivision cannot be called justified, and this is confirmed by court decisions, in particular, the Resolution of the FAS DVO of November 24, 2008 N F03-5147 / 2008. In it, the judges indicated that the tax authority's reference to Art. 11 of the Tax Code of the Russian Federation as a justification that the address of the location of a separate subdivision cannot be changed, is unlawful, interprets this rule of law broadly, since in this case only the address of the unit has changed in connection with the end of the lease of the previously occupied premises, and the management, staffing table employees of the unit, the functions of the latter remained the same. Moreover, the norms of tax and civil legislation do not provide for the liquidation of an organization in the event of a change in its location. Since tax legislation does not contain provisions for changing the location of a separate subdivision, the inspectorate's conclusion that this term refers only to a legal entity is also not based on legal norms. According to the judges, in this case, the tax authority needed notifications society on changing the location of a separate subdivision in order to remove it from tax records and register at a new address (see also Resolution of the Federal Antimonopoly Service on February 27, 2010 in case N A55-10094 / 2009).

Taking into account the systemic interpretation of the norms established in Art. Art. 11, 83, 84 of the Tax Code of the Russian Federation, judges in the Resolution of the Ninth Arbitration Court of Appeal dated 04/30/2010 N 09-AP-6722/2010-AK also indicate the inconsistency of the arguments of the tax authorities on the issue of changing the address of a separate division.

Address changes - problems remain

Changing the address of a separate subdivision gives taxpayers a lot of trouble. On the one hand, the procedure for closing a separate subdivision (on which the controllers insist) is associated, as a rule, with reconciliation of mutual settlements (including with the tax authority) or with conducting a field trip. tax audit in relation to this unit, as provided for in paragraph 5 of Art. 84 of the Tax Code of the Russian Federation. Also, closing is associated with significant costs for processing a fairly large volume of documents. Some of them must be submitted to the tax authority, others are needed to bring internal documents into compliance (for example, orders to close (open) a separate division, order to appoint a manager, personnel orders, etc.).

On the other hand, the tax authorities file claims against organizations operating at an address different from that specified in the charter. Moreover, not finding a taxpayer at his legal address, tax authorities often go to court demanding him liquidation, motivating this by the fact that the indication of a fictitious address during registration is a gross violation of the law (paragraph 2 of Art. 25 Federal law from 08.08.2001 N 129-ФЗ "О state registration legal entities and individual entrepreneurs However, this position of the tax authorities, as a rule, does not find support from judges, since in the said norm it comes violations that are irreparable. The discrepancy between the addresses can hardly be considered as such, as evidenced by the existing arbitration practice (see, for example, Resolutions of the FAS SZO of February 27, 2010 in case N A56-25535 / 2009, FAS DVO of November 13, 2008 N F03-5002 / 2008, FAS PO dated 14.08.2008 in case N A06-187 / 2008-21, FAS ZSO dated 01.04.2008 N F04-1548 / 2008 (1783-A03-24), Determination of the Supreme Arbitration Court of the Russian Federation dated 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 related to the address, or rather, with the discrepancy between the legal and actual addresses, he sometimes resorts to the most innocuous method in this case - he registers a separate subdivision at the place of his actual location , for example, at the address of the rented office.

Note. Arbitration practice shows that address mismatch is not an irreparable violation.

It turns out that, having avoided the tax authorities' claims about the address in one case, the taxpayer is faced with the problem of changing the address of a separate subdivision in another, when he has to move to a new office.

If an organization does not register a separate subdivision at a new address, it again risks facing tax claims caused by a discrepancy between the addresses - legal and actual. It turns out vicious circle(and, unfortunately, this is far from the only problem associated with the activities of separate divisions).

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

Changes that have already taken place

The first step was the entry into force on March 10, 2010 of the Procedure for registration, deregistration with the tax authorities of Russian organizations at the location of their separate subdivisions.<2>(hereinafter referred to as the Order). The named Procedure provides for the possibility of registration with the tax authorities of an organization at the location of its branch (representative office) on the basis of an application for registration, which is submitted by the organization to the registering tax authority simultaneously with an application for amending the constituent documents of a legal entity in relation to the corresponding branch ( representation). Note that previously there was no single document regulating the procedure for registering (and deregistering) separate subdivisions, there were only scattered normative acts that approved the forms of documents used when registering such subdivisions in certain cases, and explanations of officials on this occasion.

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

Then, in a Letter dated March 16, 2010 N MN-22-6 / [email protected] The FTS explained the algorithm and peculiarities of the tax authorities' implementation of certain provisions of the said Procedure, taking into account the currently operating software. In addition, by Order of the Federal Tax Service of Russia dated March 24, 2010 N MM-7-6 / [email protected] the form of the organization's message on the choice of the tax authority for registration of several of its separate subdivisions located in the same municipality in the territories under the jurisdiction of different tax authorities was approved.

Further, there was a change in the position of the main tax department with regard to the discrepancy between the legal and actual addresses. So, finally agreeing with the opinion of the judges, the Federal Tax Service, in its Letter dated 05.05.2010 N MN-20-6 / 622, acknowledged that liquidating an organization just because it is not at its legal address is too harsh a measure. Therefore, the subordinate tax authority, the FTS, recommended limiting itself to imposing a fine on the head of the organization in the amount of 5,000 rubles. (P.

What are the differences between a branch and a separate subdivision

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

And finally, the Letter of the Ministry of Finance of Russia dated 06/18/2010 N 03-02-07 / 1-282 was issued, in which, in contrast to previous clarifications on the issue of changing the address of a separate subdivision, it is indicated on the (then still) draft law providing for amendments to part the first Tax Code of the Russian Federation, including those aimed at improving the accounting procedure for organizations in tax authorities.

The changes that were awaited

Changes to Art.

Art. 23, 83, 84 of the Tax Code of the Russian Federation, introduced by the Federal Law of 27.07.2010 N 229-FZ<3>, should be regarded primarily as the fulfillment by the Ministry of Finance of its promises.

And in order to find out in what order and in what time frame it is necessary to notify the tax authority about a change in the address of a separate subdivision, let us turn to the provisions of the said Law.

<3>For the text of the Law and the commentary to it, see the journal "Acts and Comments for an Accountant", N N 16, 17, 2010.

According to new edition nn. 3 p. 2 art. 23 of the Tax Code of the Russian Federation, the taxpayer is obliged (as it was before) 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). This must be done, as before, within a month. Also, the taxpayer is obliged to amendments to the information previously reported to the tax authority about such units. Legislators have set aside a three-day period for its implementation.

A three-day period is also established for reporting the termination of activities through separate divisions, including branches and representative offices. The organization must meet this deadline in the event of the closure of separate divisions (branches and representative offices) (clause 3.1, clause 2, article 23 of the Tax Code of the Russian Federation). Thus, the taxpayer will be allotted more short term to submit information about the closure, rather than a month according to the previously valid version.

In addition, the list of ways for taxpayers to submit such information (clause 7 of article 23 of the Tax Code of the Russian Federation) will also be expanded. Now the aforementioned norm provides for the possibility of submitting messages not only in person or through a representative, but also in in electronic format via telecommunication channels, which, in our opinion, will significantly simplify this procedure for the taxpayer.

In this regard, taking into account the changes introduced, the next step towards streamlining the procedure for submitting information about separate divisions should be the approval of new forms (formats) of messages, as well as the procedure for their submission, which, by virtue of paragraph 7 of Art. 23 of the Tax Code of the Russian Federation are approved by the main tax department of the country.

So, from a literal reading of paragraphs. 3 p. 2 art. 23 of the Tax Code of the Russian Federation (as amended) it follows that the list changes made to information about a separate subdivision, not specified. At the same time, the change of its location (or change of address) fully, in the author's opinion, corresponds to the criterion changes, especially since clause 4 of Art. 84 of the Tax Code of the Russian Federation (as amended) directly states: in the case of change of location a separate subdivision of the organization its deregistration is carried out by the tax authority, in which the organization was registered. And the tax authorities are obliged to do this within five days from the date of receipt of the message 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 clause 7 of the named article). Registration organizations in the tax authority at the new location of a separate subdivision carried out on the basis of documents received from the tax authority at the former 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 on changing the address of a separate subdivision is regulated. True, it will be in effect from the moment these changes come into legal force, that is, from 02.09.2010<4>... It can be argued that the need to close and open a separate subdivision in connection with the change of its location, on which the controllers had previously insisted, disappeared.

<4>In accordance with Art. 10 of Federal Law N 229-FZ, this document comes into force one month after the date of official publication (with the exception of certain provisions that come into force at other times). The document was published in " Russian newspaper", No. 169, 02.08.2010.

O.P. Grishina

Journal Expert

"Topical issues of accounting

and taxation "

A separate subdivision is a part of a company that has limited functionality in civil law relations and (or) is located in a place that is geographically separated and equipped with at least one stationary workplace. Their differences and the order of creation will be discussed in this article.

Structural geographically separate division of the organization

As part of the organization's activities, part of its functionality can be transferred to structural divisions. At the same time, it is important to observe the line between the separation of a part of the company as a new legal entity and the territorial-organizational relocation of the unit that will remain part of firms.

One of the differences between such actions lies in the information that is entered into the Unified State Register legal entities (Unified State Register of Legal Entities): a new entry is made on the establishment of a company by way of reorganization, and the tax authorities make notes on the separate subdivision in the lines reserved for information about the parent organization. From this, the subordinate position of the subdivisions is obvious. It is also emphasized by the law. In Art. 55 of the Civil Code of the Russian Federation states that separate divisions are not legal entities, although they have a number of individualizing characteristics.

Scroll mandatory signs short:

administrative separation, expressed in the presence of a separate part of the company with its own management, 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, according to which the legal address of the separated branch of the company differs from the address of the executive body of the legal entity.

According to an internal decision, a part of the company can be endowed with other distinguishing features. For example, such signs can be:

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

Legal status of the allocated parts of the company in entrepreneurship and labor relations

Legal status a separate subdivision follows from its dependent status:

The rights of the allocated part of the company are significantly limited in comparison with the functionality of the parent organization.
For example, although the Supreme Arbitration Court has already been disbanded, the rule established by it in its information letter dated May 14, 1998 No. 34 remains in force: separate divisions have the right to file claims in court only if they act on behalf of the organization. And, as indicated in the appellate ruling of the Tyumen Regional Court dated 04.06.2012 No. 33-2442 / 2012, separate divisions are not recognized as a proper defendant, although Art. 29 of the Code of Civil Procedure of the Russian Federation and allows filing a claim in court at the place of their location.
The activities of separate divisions are the same work that a company performs in accordance with the type codes assigned to it. economic activity, as well as the activities of employees (secretaries, lawyers, accountants, etc.) to create conditions for such work, or only part of such activities. The granting of separate subdivisions of powers to carry out the established types of activities is carried out by a legal entity.
Separate subdivisions are intermediaries in labor legal relations, and not their parties. So, in the definition The Supreme Court dated 03.11.2006 No. 5-B06-94 it is indicated that the separated part of the company is not endowed with the legal capacity of a legal entity, and therefore separate divisions cannot act as employers.

If the worker is sent to exercise labor activity to a separate subdivision, then it qualifies as a direction on a business trip (see the regulation on the specifics of sending on business trips, approved by Government Decree No. 749 of 13.10.2008).

Types of separate subdivisions according to the Civil Code and Tax Code of the Russian Federation

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

A branch of a company is a separate subdivision created to carry out the activities of an organization outside of its location, the functions of a representative office, or only part of these functions, depending on the scope of powers transferred by the company.
A representative office of a company is a separate division dedicated to protecting and representing the interests of the company. Representations are especially common in organizations operating in several countries.

The Tax Code (Art. 11) recognizes as separate divisions any geographically separated parts of legal entities, if they have stationary jobs. Place of work under Art. 209 of the Labor Code of the Russian Federation is a place where an employee performs his job duties or in which he needs to be in order to perform work. The place of work should be supervised by the employer.

A workplace is stationary if it has been created for more than a month. The last requirement is related to the period of tax registration of a separate subdivision. In accordance with Art. 23 of the Tax Code of the Russian Federation, a legal entity notifies the tax authorities of the allocation of branches or representative offices within a month from the moment of their creation. If the workplace is created for a shorter period, then it makes no sense to carry out its tax accounting as a separate subdivision. If it was created for a period of more than a month, then the tax service recognizes it as a separate division.

What does it mean to recognize a separate subdivision as 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, a geographically delimited part of a company with a workplace created for a month or more is recognized as a separate division, its legal capacity differs from the rights and obligations of a branch or representative office.

The separated part of the company, recognized as such for tax purposes, usually does not have an administrative apparatus of management, its own property and funds, cannot independently exercise the powers of the company or protect its interests. The reason for this lies in the purpose of recognition by the Federal Tax Service as a division of the company of territories with available jobs.

As stated in Art. 11 of the Tax Code of the Russian Federation, the recognition of a separate subdivision as such is carried out in order to comply with the legislation on taxes and fees.

For example, if an organization is developing subsoil for Far East, and its executive body is located in Central Russia, then paying taxes at the location of a legal entity is inappropriate for tax control, as well as for other reasons. According to Art. 335 of the Tax Code of the Russian Federation, the company is registered at the place of mining. Obviously, their production is extended for more than a month, and the workplace of the employees will be a mine, a quarry, etc. Then, for the purpose of paying tax on the extraction of minerals, the tax authorities may recognize that the company has a separate subdivision.

The procedure for creating a separate subdivision

Unlike separate subdivisions, which acquire this status at the direction of the tax authority, branches and representative offices are created according to a more complex procedure. The following stages are distinguished:

Acceptance as prescribed by law or internal acts the company procedure for deciding on the separation of a part of the company.

For example, the law "On societies with limited liability"Dated 08.02.1998 No. 14-FZ, the following decision-making procedure is determined:

submitting the issue for consideration by the General Meeting of Shareholders 30 days before its convocation;
reviewing the question;
consent of 2/3 of the meeting participants with the opening of a separate subdivision.

In Art. 65 of the Law "On joint stock companies»Dated 26.12.1995 No. 208-FZ it is said that the creation of branches and representative offices may fall within the competence of the board of directors, if it is provided for by the charter of the company.

Adoption of a local act regulating the work of a separate division of the company. This is usually a branch / representative office provision.
Appointment by order of the head of the parent organization of the management of a separate subdivision. Usually, at the same time, a power of attorney is drawn up in the name of the head of the department, since without it the head will not be able to manage the department of the company (Article 55 of the Civil Code of the Russian Federation).
Submission to the Federal Tax Service of an application in the form of R14001, approved. by order of the Federal Tax Service "On approval of forms and requirements ..." dated 25.01.2012 No. ММВ-7-6 / [email protected], on entering information about the subdivision into the Unified State Register of Legal Entities. As indicated in the letter of the Tax Policy Department of the Ministry of Finance of the Russian Federation dated December 16, 2009 No. 03-02-07 / 1-541, a separate subdivision of a legal entity is considered created from the moment of making additions to the state register.
Submission to the Federal Tax Service of the C-09-3-1 form, approved by by order of the Federal Tax Service dated 09.06.2011 No. ММВ-7-6 / [email protected] within a month after the allocation of a part of the organization. This is done to register a separate subdivision with the tax service.

Sample regulation on a separate subdivision of LLC, JSC

In Art. 5 of Law No. 14-FZ, it is determined that the LLC acts on the basis of a provision approved by the parent company. Usually the situation is the same with other legal entities (see Art. 91 of Law No. 208-FZ, etc.).

general provisions as a set of information about the parent organization and the allocated part, such as: names, addresses, etc .;
the purpose of creation, for example, ensuring the observance of the interests of a legal entity;
legal status as a combination of rights, duties and responsibilities;
the control procedure carried out by the head office;
data on the management procedure, the competence of the management;
participation in labor relations;
the procedure for disbanding a unit;
other provisions as required.

Reporting of separate divisions in 2017-2018

One of the manifestations of control over branches and representative offices on the part of a legal entity and state bodies is the verification of reports.

For external reporting, a separate subdivision of a legal entity in 2017-2018 provides the following documents on a monthly basis:

Tax returns, if the unit is obliged to:
- pay transport tax and property tax of the organization;
- transfer tax withheld from employees' earnings on their income.
Form according to KND 1151111, approved by order of the Federal Tax Service dated 10.10.2016 No. ММВ-7-11 / [email protected], on the payment of insurance premiums to the Federal Tax Service.
Form 4-FSS, approved by order of the FSS dated September 26, 2016 No. 381, to report to the Social Insurance Fund on the payment of insurance premiums for the risk of occupational injuries.
Form SZV-M, approved Resolution of the Board of the PF RF dated 01.02.2016 No. 83p, to inform The Pension Fund employee pension insurance contributions.
Other documents.

Internal reporting is determined in accordance with the direction of the parent company. It includes the transfer of accounting documentation, information on the implementation of plans, etc., which means for a separate division of the organization the emergence of the need to draw up additional reports in the forms established in the organization.

Let's summarize. A separate structural unit of a legal entity is a part of a company that is territorially and administratively separated in order to carry out activities similar to the direction of the parent company, and, if necessary, also represent its interests.

In addition to allocated in civil law branches and representative offices as types of separate subdivisions, the tax authorities for the execution of the Tax Code of the Russian Federation and other taxation acts may recognize the territorially separated parts of a legal entity as separate subdivisions if they have stationary workplaces.

The company's presence in new territories is necessary for the development of market niches. However, opening a division often raises many questions. These structures imply the accrual of taxes, which must be correctly registered and reflected in accounting.

What is a stand-alone unit?

Separate division of the company- This is a geographically separated structure in which there are jobs with the appropriate level of organization. The latter are subject to an additional requirement - they must be stationary. A separate subdivision is endowed with legal status only when it is opened for a period exceeding a month.

A subdivision is recognized as separate even if its appearance is not recorded in the constituent and administrative documents. Also, the list of powers that are assigned to the structure does not matter. The last rule reflected in paragraph 2 of Article 11 of the Tax Code.

Signs of a separate subdivision

OP meets two main characteristics:

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

IMPORTANT! A workplace, according to Article 209 of the Labor Code, is understood as a place to which an employee comes to perform his official functions. The workplace must be supervised by the employer. Work from home does not meet these standards. An employee's apartment cannot be considered a workplace. The work of the cleaning lady hired to clean the client's office also does not fall under these signs. Such a "unit" was not opened by the head office. Premises for work were not rented or purchased. Therefore, in this situation, there are no signs of a separate subdivision. The OP also does not include payment terminals, ATMs.

The considered signs are determined based on the following factors:

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

Territorial isolation is understood as a situation in which the addresses of the head office and its subdivisions differ.

Functions and purposes of discovery

The OP can be created with the aim of representing the interests of the company and their protection. It usually opens for the following purposes:

A legal entity was registered, but the managers did not rent the office. All correspondence comes to the legal address. That is, to the address of the owner of the legal entity. But once the organization starts functioning, it is difficult to work in this manner. Actual location will be required.
It was decided to expand the business, develop markets in other cities.

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

Varieties

Separate subdivision includes two forms:

Branch... Takes over some of the functions 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 a branch. This is a broader concept that allows you to assign various functions to the unit. Regardless of the form chosen, the OP will act on the basis of the norms approved by the head office.

How to open a separate subdivision

To open an EP, you will need to create internal documentation. It includes, signed by members of the board of directors or representatives of the meeting of the auctioneers. The order contains information:

name of the OP;
the primary document on the basis of which the division is created (for example, the minutes of the meeting of the board of directors);
location of the OP;
the head of a separate structure;
registration period.

The order must be signed by the head of the central office. Then the Regulation on the OP is created. It contains the following data:

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

Only after the creation of all internal orders, you can proceed with registration and other legal actions for registration.

Do I need to register a separate subdivision?

The tax authority must be notified of the formation of the OP. But registration with the FIU and insurance companies is not always necessary. This is a mandatory measure only if the following circumstances exist:

The presence of a dedicated balance.
Open current account.
Payroll.

If all of the listed characteristics are missing, then it is not necessary to register a separate subdivision.

Establishment of an OP in terms of taxation

The creation of an OP entails certain tax consequences:

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

Article 23 2 of the Tax Code states that the owner of a subdivision is obliged to notify the tax authorities of its formation. Otherwise, a decision will be made on sanctions in the form of tax or administrative liability. Fines range from 10 thousand rubles to 30 minimum wages.

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

The timing

For registration, you must submit. It is provided in accordance with 23 and 83 articles Tax Code, in the following terms:

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

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

Do I need to go to the tax office if a separate subdivision does not operate?

In tax legislation, a norm has been adopted that can be read in two ways. If you take it literally, then you do not need to submit an application to the tax office until the unit has begun to operate. However, such a decision can be fraught with risks for the company.

The law says that the application must be submitted within 30 days of opening. If the OP starts its activities after 2 months and will be registered exactly after this period, set time submission of the application will be thwarted.

IMPORTANT! It is necessary to report not only about the opening, but also about the closing of the OP. The liquidation statement is drawn up by.

Summary.
The opening of a subdivision is taken into account by the tax inspectorate and other authorities. The new structure must be registered on time, otherwise a fine will have to be paid. There are clear signs of an EP, on the basis of which the education receives the appropriate legal status. If all the signs are not present, then the formed structure cannot be considered a separate subdivision.

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 must 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.

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 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 the presence of 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 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 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 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 as it is used in other branches of law (clause 1 of article 11 of the Code).

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, or 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 subdivision 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.

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 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 subdivision, 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 is charged from 500 to 1000 rubles, 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 make a decision 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 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 workstation considered a separate subdivision?

To begin with, let's consider the concept and signs of a separate division, which will help to 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 carried out regardless of whether its creation is reflected or not reflected in the constituent or other organizational and administrative documents of the organization, and 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 located or where he must arrive in connection with his work and which is directly or indirectly under the control of the employer. Between the organization and natural person 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 division 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 solutions 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 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 a 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 RF Armed Forces and the RF Supreme Arbitration Court 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. A 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 divisions 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 division 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 division of an organization is broader and includes any types of divisions of organizations, including including branches. Therefore, when deciding whether an organization has a branch (representative office), it is necessary to take into account how common features installed in

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