home Work and education How to make a separate division the main one. Separate division: tax consequences

How to make a separate division the main one. Separate division: tax consequences

As strange as it may sound, it is possible to create a separate unit unintentionally. And the worst thing is that such an “unintentional” creation of a separate unit can lead to negative consequences. In the article we will look at similar cases, which will help our readers avoid negative consequences.

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

Moreover, the division 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 the specified division (Clause 2 of Article 11 of the Tax Code of the Russian Federation).

When a separate division is considered created

A separate division 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's look at these signs in more detail.

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

A workplace is a place where an employee must be or where he needs to arrive in connection with his work, and which is directly or indirectly under the control of the employer (Article 209 of the Labor Code of the Russian Federation).
For example, recently the so-called “ virtual offices“when the organization’s employees 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, either direct or indirect, and therefore the creation of a separate division does not occur.

In addition, the workplace must be created by the employing organization itself (premises are rented or purchased). For example, if a cleaning company sends a cleaner to the client’s office for daily cleaning for a period of two months, then there will also be no separate unit. After all, if the premises or part of it does not belong to the employing organization, then the cleaner will be considered a seconded employee (166 Labor Code of the Russian Federation).

According to the Ministry of Finance, each case of the potential creation of a separate unit must be considered separately. Thus, specialists from 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, they must take into account essential conditions 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, as well as other actual circumstances of the organization’s activities outside its location (letter of the Ministry of Finance of Russia dated February 18, 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 must be equipped, created by the employer and be under his direct or indirect control.

Sign two. The Tax Code does not define territorial isolation. However, in our opinion, a division will be considered territorially separate if its location address differs from the address of the parent organization indicated in the constituent documents.

For reference: the location of a separate division of an organization is the place where this organization carries out its activities through its separate division (Clause 2 of Article 11 of the Tax Code of the Russian Federation).
Based on the foregoing, we can conclude that a separate division will be considered open from the day the workplaces are installed at an address different from the address of the organization’s location.

Separate division, branch, representative office

Civil legislation distinguishes two types of separate divisions: branch and representative office.
A representative office is a separate division of a legal entity located outside its location, which represents the interests of the 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 “representative office”. A branch is a separate division of a legal entity located outside its location and performing all or part of its functions, including the functions of a representative office (Clause 2 of Article 55 of the Civil Code of the Russian Federation).

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

In addition, the branch and representative office operate on the basis of 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, Article 55 of the Civil Code of the Russian Federation).

A separate division does not necessarily have to have a leader. Also, there is no obligation for the parent organization to approve a special regulation on a separate division. And information about it does not have to be indicated in the constituent documents.

Please note that a representative office and a branch are not legal entities and, accordingly, 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 division is not a legal entity and does not act as a subject of civil and tax legal relations. Branches, representative offices and other separate divisions 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 is obliged to submit an application for registration to the tax authority at the location of this separate division within one month from the date of creation of the separate division (clause 4 of Article 83 of the Tax Code of the Russian Federation).

What if a separate division is created, but activities are not conducted through it? If we interpret this norm literally, then as long as the activity is not carried out through a separate division, there is no need to submit an application for registration. However, if, for example, two months after the creation of a separate division, the organization begins to conduct activities through it, then it will need to register. It will be impossible to do this without violating the established deadline in the case under consideration. Therefore, the right decision would be to submit an application for registration within a month from the date of creation of a separate division, even if activities are not yet conducted through it.

In addition to filing an application for registration, the organization is obliged in all cases, within a month from the date of creation of a separate division, to report this to the tax authority at the location of the organization. The closure of a separate division must also be reported to the tax authority within a month (subclause 3, clause 2, article 23 of the Tax Code of the Russian Federation). The message is submitted to the tax authority in form N S-09-3, approved by order of the Federal Tax Service of Russia dated April 21, 2009 N MM-7-6/252@ (clause 7 of article 23 of the Tax Code of the Russian Federation).

If an organization has created a separate division 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 about the opening of a separate division 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 divisions of an organization are located in the same municipality in territories under the jurisdiction of different tax authorities, the organization can be registered tax authority at the location of one of its separate divisions, 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 division. 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) (annex to the order of the Federal Tax Service of Russia dated March 24, 2010 N MM-7-6/138@).

“Legal” and “actual” addresses

Nowadays, such a common concept as the legal address of an organization is quite common. When we say legal address, we mean the address of the location of the organization.

The location of the organization is determined by its location 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 organization’s location is the address indicated in the constituent documents.
The actual address is the address where the organization is located and actually operates.
According to some territorial tax authorities, the difference between a “legal” address and an “actual” one, in essence, is the creation of a separate division. That is, they believe that the actual address is not the organization itself, but its separate division.

In our opinion, this approach is incorrect. A separate division, first of all, must 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 division is not created, since in this case there is no parent organization (there is no one at the “legal” address, and activities are not conducted there). That is, to recognize the creation of a separate division, there must be a parent organization.
However, in order to avoid unnecessary and unnecessary disputes with the tax authorities, we recommend making changes to the constituent documents by changing information about the location of the organization.

Under what article is liability?

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 filing 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 us immediately make a reservation that the Tax Code does not establish liability for failure to notify the tax authority about the creation or closure of a separate division.
Article 117 of the Tax Code of the Russian Federation provides for liability for conducting activities without registering with the tax authority.

Moreover, the sanctions under this article are significantly greater 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 registration with the tax authority, but not less than 20,000 rubles. If such activity was carried out for more than 90 days, 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 has discovered and recorded the conduct of activities by an organization 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 unit. That is, if an organization is registered with the tax authority, then it cannot be held accountable for conducting activities through a separate division without registering with the tax authority at its location (resolution of the Federal Antimonopoly Service of the Moscow District dated June 20, 2007 N KA-A40/5386 -07, dated 10/05/2007 N KA-A40/10377-07, Federal Antimonopoly Service of the North-Western District dated 04/29/2004 N A66-6713-03).

However, not all courts share this opinion, for example, the Federal Antimonopoly Service of the Far Eastern District confirmed the legality of holding a taxpayer liable under Article 117 of the Tax Code of the Russian Federation for conducting activities through a separate division without registration (resolution dated September 3, 2008 N F03-A04/08-2/3593 ).

In conclusion, as you expand your business, do not forget to comply with the obligations imposed by tax laws, this will help you avoid unnecessary disputes and save money.

Structural territorially separate division of an organization

As part of the organization's activities, part of its functionality can be transferred to structural units. At the same time, it is important to maintain a line between the separation of part of the company as a new legal entity and the territorial and organizational relocation of the division that will remain integral part companies.

One of the differences between such actions is the information that is entered into the Unified State Register legal entities(Unified State Register of Legal Entities): the establishment of a company in the order of reorganization is entered new entry, and about a separate division, the tax authorities make notes in the lines reserved for information about the parent organization.

From this, the subordinate position of the units is obvious. It is also emphasized by 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.

The list of required features is short:

administrative isolation, expressed in the presence of the separated part of the company of its own management, acting in accordance with the requirements of Art. 55 of the Civil Code of the Russian Federation on the basis of a power of attorney;
territorial separation, in which the legal address of a dedicated branch of the company differs from the address of the executive body of the legal entity.

By internal decision, a part of the company may be endowed with other isolating characteristics. For example, such signs could be:

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

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

The legal status of a separate division follows from its dependent status:

The rights of the dedicated part of the company are significantly limited compared to the functionality of the parent organization.
For example, separate divisions have the right to file claims in court only if they act on behalf of the organization. Separate divisions are not recognized as proper defendants, although Art. 29 of the Code of Civil Procedure of the Russian Federation and allows for filing a claim in court at their location.
The activities of separate divisions are the same work that the 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 carrying out such work or only part of such activities. Providing separate units with powers to carry out established types of activities is carried out by a legal entity.
Separate units are intermediaries in labor relations, not their sides. 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 a worker is sent to conduct labor activity to a separate unit, then this qualifies as being sent on a business trip (see Regulations on the specifics of sending on business trips, approved by Government Decree No. 749 of October 13, 2008).

Types of separate divisions under the Civil Code and Tax Code of the Russian Federation

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

A branch of a company is a separate division created to carry out the activities of an organization outside 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. Representative offices are especially common in organizations operating in several countries.

The Tax Code (Article 11) recognizes any territorially separated parts of legal entities as separate divisions if they have stationary workplaces. Place of work according to Art. 209 of the Labor Code of the Russian Federation is the place where the employee carries out his work duties or in which he needs to be in order to perform work. The place of work must be controlled by the employer.

A workplace is stationary if it is created for more than a month. The last requirement is related to the deadline for registering a separate division for tax purposes. In accordance with Art. 23 of the Tax Code of the Russian Federation, a legal entity notifies the tax authorities about the allocation of branches or representative offices within a month from the moment of their creation. If the workplace has been created for more than short term, then it makes no sense to carry out its tax accounting as a separate division. 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 division as such for tax accounting purposes?

Despite the fact that in accordance with Art. 11 of the Tax Code of the Russian Federation, a territorially 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.

Don't know your rights?

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

As stated in Art. 11 of the Tax Code of the Russian Federation, recognition of a separate division as such is carried out for the purpose of implementing the legislation on taxes and fees.

For example, if an organization is developing subsoil on Far East, and its executive body is located in Central Russia, then paying taxes at the location of the legal entity is inappropriate for the implementation of 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 stretches over more than a month, and the employees’ workplace will be a mine, quarry, etc. Then, for the purposes of paying mineral extraction tax, the tax authorities may recognize the presence of a separate division of the company.

The procedure for creating a separate division

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

Making a decision on the separation of a part of the company according to the procedure established by law or internal regulations of the company.

For example, the law “On companies with limited liability» dated 02/08/1998 No. 14-FZ defines the following decision-making procedure:

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

In Art. 65 of the Law “On Joint Stock Companies” dated December 26, 1995 No. 208-FZ states that the creation of branches and representative offices may fall within the competence of the board of directors if this is provided for by the company’s charter.

Adoption local act regulating the work of a separate division of the company. Typically this is a branch/representative office provision.
Appointment by order of the head of the parent organization of the management of a separate division. Usually, at the same time, a power of attorney is issued 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).
Submitting an application to the Federal Tax Service in form P14001, approved. by order of the Federal Tax Service “On approval of forms and requirements...” dated January 25, 2012 No. ММВ-7-6/25@, on inclusion in Unified State Register of Legal Entities information about the division. As indicated in the letter of the Department of Tax Policy of the Ministry of Finance of the Russian Federation dated December 16, 2009 No. 03-02-07/1-541, a separate division of a legal entity is considered created from the moment of making additions to the state register.
Submitting form S-09-3-1 to the Federal Tax Service, approved. by order of the Federal Tax Service dated 06/09/2011 No. ММВ-7-6/362@ within a month after the allocation of part of the organization. This is done to register a separate division with tax service.

Sample regulations on a separate division of LLC, JSC

In Art. 5 of Law No. 14-FZ determines that an LLC operates on the basis of a regulation approved by the parent company. Usually the situation is similar with other legal entities (see Article 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.;
purpose of creation, for example, ensuring compliance with the interests of a legal entity;
legal status as a combination of rights, duties and responsibilities;
the procedure for control carried out by the head office;
data on management procedures, management competence;
participation in labor relations;
the procedure for disbanding a unit;
other provisions as necessary.

Reporting of separate divisions in 2020

One of the manifestations of control over branches and representative offices by a legal entity and government agencies is a reporting check.

For external reporting, a separate division of a legal entity provides the following documents on a monthly basis in 2020:

Tax returns, if the unit is obligated to:
- pay transport tax and property tax of the organization;
- transfer tax withheld from employees' earnings to their income.
Form according to KND 1151111, approved. Order of the Federal Tax Service of Russia dated September 18, 2019 No. ММВ-7-11/470@, 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, for reporting to the Fund social insurance on payment of contributions for insurance of the risk of occupational injuries.
Form SZV-M, approved. by resolution of the Board of the Pension Fund of the Russian Federation dated 01.02.2016 No. 83p, for information Pension Fund on contributions to employee pension insurance.
Other documents.

Internal reporting is determined in accordance with the instructions 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 need to prepare 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 separated territorially and administratively for the purpose of carrying out activities similar to the line of work of the parent company, and, if necessary, also representing its interests.

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

Why do you need to open a separate division for an LLC?

It happens that a newly formed LLC does not have its own or rented office. In this case, he is listed only by legal address. For example, at the address of the head or founder of the organization. As long as the activity has not yet begun, and correspondence, including from official authorities, arrives on time, this is not a problem. However, when an LLC begins to operate, a physical location becomes necessary.

Is LLC registration required? Only our specialists guarantee saving time and money when creating a new LLC.

In some cases, the nature of the organization’s work allows it to conduct business remotely, right from home, but when it comes to shops, warehouses and office premises, the activity of the enterprise begins to imply work at the address. This situation implies the need to open a separate division.

Or another situation. You need to expand your business beyond hometown. Whatever activity we are talking about, you will need to legally register a new place.

There are several options for this design. You can register a branch, representative office or a separate division. This article will focus on the latter.

Separate division: implies the presence of at least one “stationary” workplace. By workplace we mean, conclusion employment contract with the employee, for at least one month. The work must be controlled by the employer, and the employee himself must be at his workplace, according to his official duties. (Basis: Article 209 of the Labor Code)

Consequently, a warehouse without a permanent employee located there is not considered a separate unit. Likewise, the following are not considered a separate division: payment terminals, ATMs, and the like.

Hired employees with whom collaboration is carried out remotely are also not considered “stationary”. Consequently, in order to conclude agreements with them, there is no need to register a separate division at all.

Important! If you are an individual entrepreneur, you should not register separate divisions. According to the law, individual entrepreneurs have the right to conduct their activities anywhere in the country, without being tied to the place of registration. If an entrepreneur works under UTII or using a patent, he must register with the tax service at the place of business activity.

How to open a separate division for an LLC that is suitable for the simplified tax system

According to Article 346.12 of the Tax Code of the Russian Federation, the preferential simplified taxation system cannot be applied to organizations that have registered branches and representative offices. Here a logical question arises: how should the registration be carried out? separate enterprise so that he retains the right to the simplified tax system?

Here's what the Tax, Labor and Civil Codes say:

According to Art. 11, NK, A separate division of an organization is any division territorially isolated from this organization in which stationary workplaces are equipped.
According to Art. 55, Civil Code Separate enterprises are characterized as separate divisions, in the form of representative offices and branches.
(It turns out that according to the Civil Code, it is not clear what types, other than representative offices and branches, may have separate divisions.)
According to Art. 40, Labor Code Collective agreements can be concluded in the organization as a whole, in branches, representative offices and other separate structures.

Considering all of the above, the conclusion suggests itself that a clear definition of a separate enterprise simply does not exist. It turns out that when registering, the main task will be to avoid what is typical for branches and representative offices.

The legislation stipulates the following characteristics branches and representative offices:

A representative office is a separate division of a legal entity located outside its location. It represents the interests and protects the legal entity
A branch is a separate division of a legal entity located outside its location. The branch carries out all or part of the functions, including the functions of representative office.
Representative offices and branches are not legal entities; their data must be registered in the Unified State Register of Legal Entities and in the organization’s charter.

Such details are necessary, because if this issue is not understood, the manager, without realizing it, may register a separate division as a branch or representative office, which will deprive him of the ability to carry out the organization’s activities under the simplified tax system.

An organization can be classified as operating under the OSN from the moment of creation (beginning of the quarter) of a separate division that has characteristic features branch or representative office. And according to the OSN, the organization will be obliged to charge all general regime tax fees.

Features of opening branches and representative offices of LLC

Taking into account all of the above, it is reasonable to know what features distinguish a branch and a representative office.

The LLC charter stipulates the actual creation of a branch or representative office. (In itself, the ability to create a branch or representative office, which can also be stated in the charter, does not affect the taxation system)
The parent organization has approved regulations on branches and representative offices.
Branches and representative offices have an appointed manager who acts by proxy.
Developed internal normative documents regulating the activities of a branch or representative office.
Both branches and representative offices act in the interests of the parent organization before third parties, in courts and other authorities.

We conclude: that in order to have the right to the simplified tax system, you need to ensure that the separate division being created does not have the above characteristics of a branch or representative office. Also, in the Regulations on separate divisions, it should be indicated that it is not a branch or representative office, and does not have similar characteristics, and does not engage in economic activity on one's own. A separate division is managed by the head of the LLC, and no director is appointed.

Registration of separate divisions of LLC with the tax office

In Art. 83.1 of the Tax Code of the Russian Federation, the Organization must register at the location of its separate divisions. In addition, it is necessary to report to the tax authority about each new separate division within a month and about changes in these divisions within 3 working days. (Article 23.3 of the Tax Code of the Russian Federation)

Therefore, when registering separate divisions of an LLC, it is necessary to:

Notify the tax authority where the parent organization is registered (Form No. S-09-3-1);
Register with the tax office at the address of the unit being opened, if the address of the tax office differs from the one at which the parent organization is registered.

In the case when several separate divisions are registered at once, located on the territory of one municipality, but in the territories of different tax inspectorates, it is possible to register all divisions on the territory of the department tax office one of them. For example, several tax services operate in one city, and an organization in this city plans to open four stores that are located on the territory of different tax authorities. In this case, all four stores can be registered as separate divisions in one tax service.

If the location of a separate subdivision changes, you should report this indicating the new address in the NI (Form No. S-09-3-1) at the place of registration of the subdivision.

Registration of separate divisions of LLC

It is necessary to register a separate division in the funds at the location if it will maintain a separate balance sheet, open a current account and plan to accrue payments to employees. Registration must be completed within 30 days.

The following documents must be submitted to the Pension Fund:

Certificate of tax registration;
Notification of registration of LLC on the territory of the Pension Fund of Russia;
A package of documents confirming the opening of a separate division, as well as a current account and balance sheet maintenance.
registration application (original)

To register with the Social Insurance Fund, you must provide copies (notarized) of the following documents:

Certificate of tax registration;
GRUL certificate;
An order to open a separate division, documents confirming the existence of a current account and the opening of a balance sheet;
Letter from Rosstat state statistics;
Notification of tax registration;
The only original is the registration statement;

It is noteworthy that the simplified tax and insurance premium for employees of a separate division are paid at the place of registration of the head office, and personal income tax for these employees is withheld at the place of registration of the separate division.

Responsibility for violations when opening a separate division

The following violations of the deadline for registration of separate divisions entail penalties:

The deadline for submitting a notice of tax registration was violated - 10,000 rubles. (Article 116 of the NKRF);
The separate division operates, but is not registered - fines will amount to 10% of income for the period of activity without registration, plus 40,000 rubles. (Article 116 of the NKRF);
Registration deadlines with the Pension Fund were violated - 5000 rubles. and 10,000 rub. (if the registration delay continues for more than 90 calendar days); (Article 27 No. 167-FZ dated December 15, 2001);
Similar fines are provided for violations of the deadlines for registration with the Social Insurance Fund of 5,000 rubles. and 10,000 rub. accordingly (Article 19 No. 125-FZ of July 24, 1998).

Procedure for opening a separate division

Make sure that you are registering a separate division, and not a branch or representative office. (Different registration algorithm)
Check whether the workplaces are stationary (created for a period of more than a month, workers are present there according to the work schedule).
Within 30 calendar days, inform the tax authority of the parent enterprise about the registration of a separate division (Form No. S-09-3-1)
Within 30 calendar days, register with the FPR and the Social Insurance Fund, if the separate division has its own current account and maintains a balance sheet.
All changes (address, name) must be reported within 3 days to the Tax Service in the territory of registration of the separate division (form No. S-09-3-1)

Let's summarize. More often than not, registering a branch or representative office may not be justified at all. It is much easier and faster to register a separate division by organizing a stationary workplace.

The necessary documents are quite simple to collect, and the registration process itself takes place at the local tax service (at the place of registration of the head office).

The entire registration process can take only a week.

A separate division of an organization according to the Tax Code of the Russian Federation is any division territorially isolated from the organization, at the location of which stationary workplaces are equipped (clause 2 of Article 11 of the Tax Code of the Russian Federation). Let's study the signs of a separate division more closely, determine what the legal status of separate divisions is, and clarify when it is necessary to open a separate division.

What is a separate division of an organization?

Based on the definition of a separate division given in the Tax Code, the following characteristics of a separate division can be identified (clause 2 of Article 11 of the Tax Code of the Russian Federation):

territorial isolation of the unit from the organization itself. We talked about what this means;
the presence of at least one stationary workplace in a separate unit. We will not describe in detail here what this means, since we have comprehensively considered this issue;
creation of a job for a period of more than a month. It does not matter whether the employee will work in this place permanently or periodically;
the control of the object where the workplace is located is your organization. For example, if your employee works in the office of your counterparty for more than a month, then you cannot talk about your organization creating a stationary workplace and opening a separate division;
hiring at least one employee to work in a separate division. We have already talked about this.

When to open a separate division

Legal status of separate divisions

The Civil Code names 2 types of separate divisions (clauses 1, 2 of Article 55 of the Civil Code of the Russian Federation):

branch. This is a separate division that performs all or part of the functions of a legal entity. That is, the branch implements both the representative (legal) function of a legal entity and the production function;
representation. This is a division that represents the interests of a legal entity and protects them. In other words, the representative office only implements legal function organizations.

Neither a branch nor a representative office are independent legal entities. They act on the basis of provisions approved by the legal entity. The heads of these divisions are appointed by a legal entity and act on the basis of a power of attorney. Distinctive features branches and representative offices - information about them must be contained in the Unified State Register of Legal Entities (clause 3 of Article 55 of the Tax Code of the Russian Federation).

At the same time, the Tax Code allows for a third type of separate division. This is a division, information about which is not contained in the constituent documents of the organization and is not contained in the Unified State Register of Legal Entities (clause 2 of Article 11 of the Tax Code of the Russian Federation). The head of such a division is also appointed by a legal entity and acts on the basis of a power of attorney (read more about the appointment of a director of a separate division).

Any separate division of an organization is subject to tax registration (Clause 1, Article 83 of the Tax Code of the Russian Federation). However, registration of an organization for tax purposes at the location of the branch or representative office is carried out automatically by the tax authorities based on information in the Unified State Register of Legal Entities. But other separate divisions are registered by the organization by submitting the appropriate notification (

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A.A. Susarova lawyer
"FBK Legal"
Article from the magazine "Financial and Accounting Consultations", No. 6 (46), 2013

Often companies are faced with the need to create a separate division. And in this case, the key question is the choice legal form, in which the corresponding unit can function: branch, representative office, etc. Let's look at this situation using a specific example.

The company is registered in the Moscow region and plans to create a separate division in Moscow. It is assumed that the division will be responsible for the marketing of products and management of the company, i.e. will actually perform some of the functions that society itself performs. Will be employed in a separate unit financial director, sales director, production director, sales specialists (managers, supervisors, leading sales managers key clients and others), product certification specialist, accountants.

In this regard, the lawyers were asked the question of what legal form is most appropriate for organizing the activities of a separate division of the company in Moscow.

Legal status of a separate division

IN Civil Code In the Russian Federation, there are two types of separate divisions of the organization - a branch and a representative office.

In accordance with paragraph 1 of Art. 55 of the Civil Code of the Russian Federation, a representative office is a separate division of a legal entity located outside its location, which represents the interests of the legal entity and protects them.

A branch is a separate division of a legal entity located outside its location and performing all or part of its functions, including the functions of a representative office (Clause 2 of Article 55 of the Civil Code of the Russian Federation).

Thus, the representative office may be assigned the functions of negotiating; conclusion of transactions; carrying out advertising campaigns activities of the parent organization; carrying out marketing research aimed at studying the market for relevant goods (works, services) in the region of their location; protection of the rights and legitimate interests of the organization in the courts.

In addition to the specified functions of the representative office, the branch is directly involved in production and other entrepreneurial activity legal entity, which it maintains in accordance with the law and its constituent documents.

It is expected that employees of a separate structural unit will perform not only the functions of representing the company in Moscow, but also exercise management current activities(directors), deal with the decision financial issues(financial division) and product certification issues (product certification specialist), organize accounting (accounting). Thus, a separate structural unit will perform part of the functions of a legal entity. In this regard, in our opinion, the most acceptable legal form of functioning of a separate structural unit is a branch.

At the same time, we note that the civil legislation does not contain either a direct prohibition on the creation of separate divisions of an organization other than representative offices and branches, or a mandatory norm containing a closed list of types of separate divisions. From this we can conclude that the organization has the right to create separate divisions of the organization other than representative offices and branches, for example, branches, bureaus, offices, consultation and information points. This conclusion confirmed by arbitration practice.

At the same time, the legislation does not contain restrictions regarding what functions can be performed by other separate divisions that do not have the status of a legal entity.

Thus, one should not exclude the possibility of creating a separate division of the company in Moscow, which does not have the legal status of a branch or representative office.

There are no mandatory conditions under which the creation of a separate division in one legal form is allowed and the creation of a division in another legal form is excluded. However, there are minor differences in legal status separate divisions that allow one or another form to be considered the most preferable.

Documents required to create a separate division

Documents required to create a branch

Documents required to create another separate division

From the above description of the documents required to create a separate division, it follows that the creation of a branch involves the preparation of a larger number of documents than is required when creating another separate division. Meanwhile, when creating a branch, several decisions can be formalized in one document (on the creation of a branch, amendments to the constituent documents, appointment of a manager). There is no need to re-apply to the tax authority in order to register the company at the location of the branch (these actions will be performed when registering changes to the constituent documents of the company). Consequently, the number of documents issued when creating a branch, and the labor costs for their preparation, will slightly exceed the number of documents drawn up when creating another separate division, and the corresponding labor costs.

In the case of allocating a branch to a separate balance sheet, opening a separate account and accruing payments in favor of individuals, registration of the company with the territorial bodies of state extra-budgetary funds (PFR, FSS of Russia) is required.

Separate division account

The Company has the right to open bank accounts for carrying out banking operations by the branch (clause 4.3 of the Instructions on opening bank accounts).

Another separate division is not considered as a division of a legal entity through which payments can be made. However, the right of a legal entity to open bank accounts in other constituent entities of the Russian Federation is not legally limited. Consequently, the possibility of opening a company account in a Moscow bank cannot be ruled out. In this case, it will be considered that payments are made through the company itself, but not through its separate division.

Thus, the use of a specific legal form of a separate division does not affect the fundamental possibility of disposing bank account. However, opening a separate account for a separate division allows you to separately account for funds spent for purposes related to the activities of the separate division. For this reason, in practice, when a need is identified to open a bank account at the place of operation of a separate division, as a rule, a branch (or representative office) is created and an account is opened for the branch to carry out banking operations.

The need to allocate a separate division to a separate balance sheet

In accordance with paragraph. 20 clause 2 art. 11 of the Tax Code of the Russian Federation, a separate division of an organization is any territorially separate division from it, at the location of which stationary workplaces are equipped. A separate division of an organization is recognized as such regardless of whether or not its creation is reflected in the constituent or other organizational and administrative documents of the organization, and regardless of the powers vested in the specified division. In this case, a workplace is considered stationary if it is created for a period of more than one month.

Thus, the characteristics of a separate division of an organization for tax purposes are:

territorial isolation from the parent organization;
availability of equipped stationary workplaces.

From the foregoing it follows that from the point of view of tax accounting, separate divisions include branches, representative offices and other divisions, including those whose creation is not reflected in the constituent documents, subject to compliance with the criteria of Art. 11 of the Tax Code of the Russian Federation.

Thus, to recognize that an organization has a separate division of the organization for tax purposes, the civil legal status of such a division does not matter.

At the same time, the Tax Code of the Russian Federation does not make the recognition of a particular division of an organization as separate dependent on the latter having a separate balance sheet and current account (see letters of the Ministry of Finance of Russia dated August 3, 2010 No. 03-03-06/1/513 and dated July 7 2006 No. 03-01-10/3-149).

In accordance with clause 33 of PVBU and clause 8 of PBU 4/99, the organization’s financial statements must include performance indicators of branches, representative offices and other structural units, including those allocated to separate balance sheets.

As the Ministry of Finance of Russia indicated in letter No. 04-05-06/27 dated March 29, 2004, a separate balance sheet should be understood as a list of indicators established by the organization for its divisions, allocated to a separate balance sheet.

Thus, the decision on the need to allocate a separate division to a separate balance sheet, as well as the determination of the indicators that will be established for it, must be made by the company itself; the legislation does not contain a requirement for the mandatory allocation of separate divisions to a separate balance sheet.

Let us note that the presence of a separate division of a taxpayer in itself leads to the need to pay some taxes at the location of such a separate division. At the same time, the presence of a separate balance sheet for a separate division will entail the need to pay additional taxes and fees at the location of the separate division.

Procedure for taxation of a separate division

Registration of a separate division with the tax authorities. In accordance with paragraph 1 of Art. 83 of the Tax Code of the Russian Federation, organizations that include separate divisions located on the territory of the Russian Federation are subject to registration with the tax authorities at the location of each of their separate divisions.

Thus, the company will be registered for tax purposes in Moscow with the tax authority that is responsible for the territory where jobs for the company’s employees will be organized.

Value added tax (VAT). Current rules Chapter 21 of the Tax Code of the Russian Federation does not provide for the payment of VAT and the submission of VAT returns at the location of separate divisions.

As indicated in the letter of the Ministry of Taxes of Russia dated November 4, 2002 No. VG-6-03/1693@, the entire amount of VAT is paid by an organization that has separate divisions, centrally at the place of registration of the parent organization without distributing the tax among separate divisions.

Consequently, regardless of whether the company has separate divisions, whether they are allocated to a separate balance sheet or not, the submission of VAT returns and payment of tax are carried out by the company at its location without distribution among separate divisions.

Personal income tax (NDFL). As is known, organizations act as tax agents in relation to personal income tax, payable on the income of employees (clause 1 of article 226 of the Tax Code of the Russian Federation). However, the performance of the duties of a tax agent for personal income tax by an organization that includes separate divisions in relation to the employees of these divisions has a number of features.

In accordance with paragraph 7 of Art. 226 of the Tax Code of the Russian Federation, a Russian organization, which includes separate divisions, is obliged to transfer calculated and withheld personal income tax amounts to the budget both at its location and at the location of each of its separate divisions.

The amount of personal income tax payable to the budget at the location of a separate division is determined based on the amount of income subject to taxation accrued and paid to the employees of this division.

From the above legislative norms it follows that when opening an office in Moscow, which is a separate division, the company will be obliged to pay personal income tax at the location of its separate division in Moscow in relation to income received by employees of this division.

Let us note that the company will have to fulfill this obligation regardless of whether the separate division has a current account and a separate balance sheet, since there are no exceptions to clause 7 of Art. 226 of the Tax Code of the Russian Federation does not contain any provisions in this regard.

Corporate income tax. In accordance with paragraph 2 of Art. 288 of the Tax Code of the Russian Federation, payment of advance payments, as well as tax amounts subject to credit to the revenue side of the budgets of the constituent entities of the Russian Federation and the budgets of municipalities, is made by taxpayers at the location of the organization, as well as at the location of each of its separate divisions based on the share of profit attributable to these separate divisions .

The amounts of advance payments, as well as the amounts of tax to be credited to the revenue side of the budgets of the constituent entities of the Russian Federation and the budgets of municipalities, are calculated at the tax rates in force in the territories where the organization and its separate divisions are located.

In accordance with paragraph. 1 clause 1 art. 289 of the Tax Code of the Russian Federation, taxpayers, regardless of whether they have an obligation to pay tax and (or) advance payments for tax, the specifics of calculation and payment of tax, must, at the end of each reporting and tax period, submit to the tax authorities at their location and the location of each separate division, unless otherwise not provided for by this paragraph, the corresponding tax returns in accordance with the legally established procedure.

Consequently, since the company will include a separate division, at the end of each reporting and tax period the company must submit declarations to the tax authorities, both at its location and at the location of the division in Moscow. In this case, the declarations are submitted by the company independently (unless the company has issued a power of attorney to the head (employee) of a separate division for its representation to the tax authorities).

The specified procedure for submitting tax returns begins to apply from the reporting period to which the date the organization is registered for tax purposes at the location of the separate division (letter of the Ministry of Finance of Russia dated March 5, 2007 No. 03-03-06/2/43).

Clause 5 of Art. 289 of the Tax Code of the Russian Federation establishes that an organization, which includes separate divisions, at the end of each reporting and tax period submits to the tax authorities at its location a tax return for the organization as a whole with distribution among separate divisions.

If the share of profit for a separate division is not determined due to the fact that the value of the indicators for its calculation is zero, then the tax base and income tax, as well as advance payments to such a division are not distributed (letter of the Federal Tax Service of Russia for Moscow dated May 6 2008 No. 14-14/043984).

Transport tax. If a company plans to purchase cars (or other vehicles) that will be used by employees of a division in Moscow while performing their work duties, then it is worth paying attention to the following.

According to para. 1 tbsp. 357 of the Tax Code of the Russian Federation, payers of transport tax are persons who, in accordance with the legislation of the Russian Federation, are registered with vehicles recognized as an object of taxation in accordance with Art. 358 Tax Code of the Russian Federation.

By virtue of paragraph 1 of Art. 358 of the Tax Code of the Russian Federation, the object of taxation for transport tax includes, among other things, cars registered in accordance with the legally established procedure.

Clause 1 of Art. 3631 of the Tax Code of the Russian Federation establishes the obligation of taxpayers who are organizations, after the expiration of the tax period, to submit to the tax authority at their location Vehicle tax return. The location of vehicles (with the exception of sea, river and air) is the place of their state registration, and in the absence of such, the location of the owner (Clause 5 of Article 83 of the Tax Code of the Russian Federation).

In accordance with clause 24.3 of the Rules for registration of motor vehicles and their trailers in State Inspectorate security traffic Ministry of Internal Affairs Russian Federation registration of vehicles for legal entities is carried out at the location of legal entities, determined by the place of their state registration, or at the location of their separate divisions.

Consequently, the company has the right to choose where to register cars and (or) other vehicles - at the location of the company or a separate division.

Thus, if a company purchases and registers cars (or other vehicles) in Moscow, then it will have to submit a tax return for transport tax in Moscow. Tax is payable on the same principle by the company itself.

Organizational property tax. In accordance with paragraph 1 of Art. 373 of the Tax Code of the Russian Federation, tax payers are organizations that have property recognized as an object of taxation in accordance with Art. 374 Tax Code of the Russian Federation.

In turn, clauses 1 and 4 of Art. 374 of the Tax Code of the Russian Federation establishes that the objects of taxation for Russian organizations are movable and immovable property (including property transferred for temporary possession, use, disposal, trust management contributed to a joint activity or received under a concession agreement), recorded on the balance sheet as fixed assets, with the exception of movable property registered on January 1, 2013.

Consequently, from January 1, 2013, only real estate taken into account as fixed assets is recognized as an object of taxation.

At the same time, the Tax Code of the Russian Federation provides for a special procedure for calculating and paying property tax and declaring it for organizations that have separate divisions.

By virtue of Art. 384 of the Tax Code of the Russian Federation, an organization that includes separate divisions that have a separate balance sheet pays tax (advance tax payments) to the budget at the location of each of the separate divisions in relation to property recognized as an object of taxation, located on a separate balance sheet of each of them.

In accordance with paragraph. 1 clause 1 art. 386 of the Tax Code of the Russian Federation, taxpayers are obliged, at the end of each reporting and tax period, to submit to the tax authorities at their location, at the location of each of their separate divisions that have a separate balance sheet, tax calculations for advance tax payments and a tax return.

Consequently, if a separate division of a company in Moscow is not allocated to a separate balance sheet, then the real estate acquired for this separate division (fixed assets) will be on the balance sheet of the company itself.

At the same time, according to Art. 385 of the Tax Code of the Russian Federation, an organization that takes into account on its balance sheet real estate objects located outside the location of the organization or its separate division that has a separate balance sheet, pays tax (advance tax payments) to the budget at the location of each of the specified real estate objects in an amount determined as the product of the tax the rate in force in the territory of the corresponding subject of the Russian Federation on which these real estate objects are located, and the tax base (1/4 of the average value of property) determined for the tax (reporting) period in accordance with Art. 376 of the Tax Code of the Russian Federation, in relation to each piece of real estate.

This means that the company will have an obligation to calculate, pay and declare property tax at the location of the real estate, i.e. in Moscow, regardless of whether a separate division will have a separate balance sheet, which will account for fixed assets in the form of real estate used by such a separate division.

At the same time, the company will not have the obligation to calculate, pay and declare property tax at the location of a separate division that does not have a separate balance sheet in relation to fixed assets in the form of movable property acquired before January 1, 2013. If the separate division has a separate balance sheet on which the specified fixed assets used by such a separate division will be taken into account, then property tax will be paid by the company in Moscow.

Contributions to state extra-budgetary funds. By virtue of clause 11 of Art. 15 of the Law on Insurance Contributions, separate divisions that have a separate balance sheet, current account and accrual payments and other remuneration in favor of individuals, fulfill the organization’s responsibilities for paying insurance premiums (monthly mandatory payments), as well as the responsibilities for submitting calculations for insurance premiums at their location .

Thus, if a separate division of a company in Moscow does not meet the requirements established in the above norm (it will not be allocated to a separate balance sheet and (or) it will not have a current account), it will not be entrusted with fulfilling the company’s obligations to pay insurance premiums ( monthly mandatory payments), as well as obligations to submit calculations for insurance premiums at their location.

If a separate division of the company in Moscow meets the requirements established by the above norm (it will be allocated to a separate balance sheet and will have a current account), it will be entrusted with fulfilling the company’s obligations to pay insurance premiums (monthly mandatory payments), as well as obligations to submit settlement of insurance premiums at your location.

Consideration of disputes with the participation of society

In relation to separate divisions having the status of a branch, special rules of jurisdiction are provided. A claim against a legal entity arising from the activities of its branch located outside the location of the legal entity may be brought to the arbitration court at the location of the legal entity or its branch (clause 5 of Article 36 of the Arbitration Procedure Code of the Russian Federation).

Claims arising from the activities of another separate division of a legal entity are brought at the location of the company (Article 35 of the Arbitration Procedure Code of the Russian Federation). Consideration of disputes based on the location of the branch allows the company to provide evidence in the most efficient manner.

Literature

See, for example, Resolutions of the FAS of the North-Western District dated November 18, 2008 in case No. A42-1739/2008, dated November 28, 2005 No. A56-45775/2004, FAS of the North Caucasus District dated September 16, 2009 in case No. A53 -22572/2008, FAS Moscow District dated 04/30/2009 No. KA-A40/3057-09, FAS Central District dated 05/06/2003 No. A09-585/03-30.

Federal Law of 02/08/1998 No. 14-FZ “On Limited Liability Companies”.

See Resolution of the Federal Antimonopoly Service of the Volga District dated 04/09/2010 in case No. A65-28861/2009 (in this case the situation with representation was considered joint stock company, however this practice also applies to a branch of a limited liability company).

Federal Law of 08.08.2001 No. 129-FZ “On state registration of legal entities and individual entrepreneurs».

The procedure for registration and deregistration with the tax authorities Russian organization according to the location of their separate divisions, real estate and (or) vehicles belonging to them, individuals - citizens of the Russian Federation, as well as individual entrepreneurs using a simplified taxation system based on a patent (approved by letter of the Federal Tax Service of Russia dated September 3, 2010 No. MN-37- 6/10623 “On the organization of accounting with tax authorities of organizations and individuals in connection with the entry into force on September 2, 2010 Federal Law dated July 27, 2010 No. 229-FZ (hereinafter referred to as the Registration Procedure)). With the entry into force of Law No. 229-FZ, the procedure for tax registration at the location of a separate division was changed. Meanwhile, it has not yet been approved new order registration. Until the tax authority approves the relevant procedure, it is recommended to apply the Registration Procedure approved by letter of the Federal Tax Service of Russia dated September 3, 2010 No. MN-37-6/10623.

Please note that registration with the funds is required only if all three listed conditions are met: a separate account, balance sheet, accrual by a branch wages(letter from the FSS of Russia dated 05.05.2010 No. 02-03-09/08-894p).

Federal Law of July 24, 2009 No. 212-FZ “On insurance contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund.”

The procedure for registration and deregistration in the territorial bodies of the Pension Fund of the Russian Federation of policyholders making payments individuals(approved by Resolution of the Board of the Pension Fund of October 13, 2008 No. 296p).

Administrative regulations of the Social Insurance Fund of the Russian Federation for the provision public services on registration and deregistration of policyholders - legal entities at the location of separate divisions (approved by order of the Ministry of Health and Social Development of Russia dated September 20, 2011 No. 1052n).

Federal Law of November 29, 2010 No. 326-FZ “On Compulsory Health Insurance in the Russian Federation.”

Instruction of the Bank of Russia dated September 14, 2006 No. 28-I “On opening and closing bank accounts, deposit accounts” (hereinafter referred to as the Instruction on opening bank accounts).

The regulations on maintaining accounting records and financial statements in the Russian Federation were approved by Order of the Ministry of Finance of Russia dated July 29, 1998 No. 34n.

Regulations on accounting“Accounting statements of an organization” PBU 4/99 was approved by order of the Ministry of Finance of Russia dated July 6, 1999 No. 43n.