Sometimes this aspect is forgotten. entrepreneurial activity as the creation of separate divisions. It would seem that he registered a company and work calmly. However, the legislator establishes a lot of different obligations that will need to be fulfilled.

We note right away that for an LLC in which only the founder himself works, no separate divisions (hereinafter also referred to as “OP”, “isolation”) do not need to be opened - only those who hire assistants under employment contracts will have such an obligation.

What is an isolation?

You can also register an LLC at the address of the founder's place of residence. It could be his house or apartment. If not create industrial productions in apartment buildings, then an apartment may well be an acceptable option for registration.

If the activities of the Company will be carried out exclusively at the address of registration, then there will be no need to create a separation. However, not every type of activity can be carried out at only one address.

For example, if you engage in trade, then without opening outlets retail will be problematic.

In this case, the activities of the LLC will be carried out not only at the registered address, but also in places other than it. This sign is the first one to think about creating an OP, but there is no need to rush to discover it. The fact is that legal norms connect the registration of separate settlements with the availability of jobs at their addresses, but if there are no jobs created there, then there is no obligation.

The difference between a separation from branches and representative offices

Many may have confusion in their heads, but what exactly is meant by OP? According to Article 55 of the Civil Code of the Russian Federation, these include representative offices and branches. But they have a completely different procedure for creating, with the introduction of information into the Unified State Register of Legal Entities.

There are other types of isolations, which are mentioned in Article 11 of the Tax Code of the Russian Federation, and it is they that need to be opened if the company's activities are carried out not only at its main address.

According to this norm, the EP is any subdivision that is structurally separate from the organization, where jobs that are stationary have been created for periods of more than one month.

Based on the wording of the norm, the OP should be opened only if the following rules are cumulatively observed:

1. Workplaces are equipped at the place of the EP. Based on the provisions of the norms of Article 209 of the Labor Code of the Russian Federation, workplace is a place controlled by the employer, where, by virtue of the performance of his duties, an employee must arrive, who works for this employer under an employment contract.
2. The workplace is stationary. This means that the work is done not by remote workers who work remotely, but by people who are directly at the places where everything is created. the necessary conditions for their work.
3. The workplace was created for more than a month. Any other jobs that exist for a shorter amount of time do not entail the obligation to open an EP.

Important! If with individuals not an employment contract was concluded, but a GPC, then there are no obligations to open separate compartments, since the failure to provide services for GPC agreements does not create jobs.

Thus, if an LLC has a warehouse on the outskirts of the city where consignments of goods are stored, then, in fact, the company’s activities are also carried out at the address of the warehouse. However, there is no guard or sorter in this warehouse - only goods under alarm. In this case, it is not necessary to register a separation, since the workplace is not equipped.

If a watchman sits in the warehouse every day, and his workplace lasts more than 1 month, then there is a need to open an OP. Likewise, if an LLC opens any outlets around the city - if there is a seller who works for permanent basis, then the separate subdivision opens.

What is the point of opening the OP?

The opening of isolated areas is important for the collection of tax deductions. According to Article 230 of the Tax Code of the Russian Federation, personal income tax for employees must be paid at the location of the EP in which they work.

When expanding a business, an LLC may open several OPs in different cities his presence. Accordingly, it is at the location of each isolation for each employee who works in them that personal income tax must be paid.

If the LLC is registered in Belgorod, and the activity is carried out in Stary Oskol, then there are no questions - different regions, different tax authorities.

But what if the isolation is created literally on the next street and has the same tax office with the parent organization? In this case, you do not need to open the OP?

The wording of the law makes no such exceptions. The law says that it is necessary to open isolation in all cases when the place of activity is not at the place of registration of the LLC. Therefore, in order to avoid problems with the Federal Tax Service, it is better to register all EPs, even if they are located in the same region and will be registered with the same tax office with the head office.

How to open a separate division

Article 84 of the Tax Code of the Russian Federation establishes that the registration of separate registrations is carried out by sending special messages to the tax authorities. If the OP meets all the conditions for the workplace, then within a month from the date of its creation, in accordance with Article 23 of the Tax Code of the Russian Federation, a message of form No. C-09-3-1 must be sent to the Federal Tax Service, where the LLC is registered.

Important! It is necessary to send this document to the inspection at the place of registration of the LLC, and not at the place where the OP was opened - this is a fairly common mistake. If you send a message directly to the tax authority where the separation will be registered, the message will be returned to the applicant.

The message of form No. С-09-3-1 must be signed by the head of the LLC, or by a person authorized by a power of attorney. The power of attorney will need to be attached to the message, no other documents need to be attached.

The message can also be submitted to in electronic format by signing his EDS of the head.

Sometimes it happens that an organization is registered at a certain legal address, and begins to conduct activities at a different address. Does this mean that a separate division has been created legal entity located outside its location? After all, a separate subdivision is subject to separate registration with the tax office at the location (clause 4, article 83 of the Tax Code of the Russian Federation). Let us give the signs of a separate subdivision of a legal entity and determine when it becomes necessary to register a subdivision with the Federal Tax Service.

Signs of a separate division of a legal entity

A subdivision of a legal entity is recognized as separate and subject to registration with the tax office if the following criteria are met (paragraph 2 of article 11, subparagraph 3 of paragraph 2 of article 23, paragraph 4 of article 83 of the Tax Code of the Russian Federation):

• the unit is located at a location other than the location of the organization itself. Read more about this;
• The unit has at least one fixed workplace. We talked about this;
• the workplace has been created for a period of more than one month;
• the specified workplace is controlled by the organization, and not by any other legal entity;
• hired an employee who will work in the unit. Read more about this.

Note that it does not matter whether the creation of a separate subdivision is reflected in the constituent or organizational and administrative documents of the organization. If the above signs of a separate legal entity are met, then the unit is subject to registration (clause 1, article 83 of the Tax Code of the Russian Federation).

Separate subdivisions in the form of a branch or representative office

If an organization opens a branch or representative office, then it indicates information about it in founding documents. After that, information about the branch or representative office will be indicated in a single state register legal entities (EGRLE) (clause 3 of article 55 of the Civil Code of the Russian Federation). And then the tax inspectorate will automatically register a branch or representative office based on information from the Unified State Register of Legal Entities (clause 3 of article 83 of the Tax Code of the Russian Federation).

Other separate divisions: registration

If a separate subdivision of a legal entity is created, located outside its location, which is not a branch or representative office, then it is registered on the basis of a report submitted by the organization itself. We talked about it in detail

The presence of a territorially remote subdivision of an organization raises a number of questions. Is it a branch, representative office or separate subdivision? How and where to pay taxes? Is one remote workplace considered a separate subdivision? These and other questions in this article are answered by A.A. Kulikov, Deputy Head of the Department of Documentary Checks of the Directorate for Tax Crimes of the Main Internal Affairs Directorate for St. Petersburg and the Leningrad Region.

Separate subdivision in the Tax Code of the Russian Federation

In accordance with paragraph 2 of Article 11 of the Tax Code of the Russian Federation, a separate subdivision of an organization is

Based on the definition given in the Tax Code of the Russian Federation, taking into account the requirements of paragraph 4 of Article 83 of the Code, the essential features of a separate subdivision can be distinguished:

• territorial isolation of property owned by the organization by right of ownership from the organization itself, regardless of the fact of documenting the creation of the corresponding unit;
• the availability of jobs (moreover, the legislator indicates a plurality of the latter) created for a period of at least one month (in accordance with the provisions of Article 6.1 of the Tax Code of the Russian Federation, a month is understood to be a calendar month);
• conducting activities by the organization through the relevant unit.

As a matter of priority, when deciding on the creation of a separate subdivision, it is necessary to establish the true meaning of isolation and its essential features.

Location of the organization and its division

In accordance with the provisions of the Tax Code of the Russian Federation, the concept of the location of the organization is not disclosed, as a result of which, taking into account the norms of Article 11 of the Tax Code of the Russian Federation, the conceptual apparatus of civil legislation can be fully involved. In accordance with paragraph 2 of Article 54 of the Civil Code of the Russian Federation, the location of a legal entity is determined by the place of its state registration. State registration of a legal entity is carried out at the location of its permanent executive body, and in the absence of such, another body or person entitled to act on behalf of the legal entity without a power of attorney. Since the relevant norms of the Civil Code of the Russian Federation, as well as the Resolution of the Plenum of the Armed Forces of Russia and the Plenum of the Supreme Arbitration Court of Russia dated July 1, 1996 No. 6/8 "On Certain Issues Related to the Application of Part One Civil Code Russian Federation"use a reference norm to the provisions legislative act governing the issues of state registration of legal entities, let us turn to the text of the latter. Based on the meaning of subparagraph "c" of paragraph 1 of Article 5 federal law dated 08.08.2001 No. 129-FZ "On state registration of legal entities and individual entrepreneurs"The location of the permanent executive body of a legal entity is its address. Additional Information in relation to the concept of "address" is contained in subparagraph "e" of paragraph 2 of the same article, in which the address is understood as a set of details that determine the location of an object in space:

• name of the subject of the Russian Federation;
• name of the district, city, other locality;
• street name;
• house and apartment number.

Thus, the creation of a separate division as legal fact it can be stated when the latter (that is, stationary jobs) is created at a different address than the address state registration(and hence location) of the organization.

A separate division, branch or representative office?

The concept of a separate subdivision must be clearly distinguished from civil law concepts similar in content to "branch" and "representative office". The latter, in accordance with Article 55 of the Civil Code of the Russian Federation, include a separate subdivision of a legal entity located outside its location, which represents the interests of a legal entity and protects them (representation) or performs all or part of its functions, including the functions of a representative office (branch) . By virtue of the direct indication of the Civil Code of the Russian Federation, representative offices and branches must be indicated in the constituent documents of the legal entity that created them. In the absence of such an indication, a representative office or branch cannot be considered established.

This problem, in particular, manifested itself in the application of the provisions of Chapter 26.2 of the Tax Code of the Russian Federation "Simplified Taxation System". In accordance with subparagraph 1 of paragraph 3 of article 346.12 of the Tax Code of the Russian Federation, organizations that have branches and (or) representative offices are not entitled to apply the simplified system. It was precisely this wording that in some cases became the reason for obstructing the use of the simplified tax system by taxpayers.

Creation of a separate division

The creation of a separate subdivision gives rise to a number of consequences for the taxpayer that are directly provided for by the legislation of the Russian Federation - registration with the tax authorities, as well as the calculation and payment of taxes and fees not only at the location of the organization, but also at the location of separate subdivisions (Article 19 of the Tax Code of the Russian Federation ).

The obligation to notify the tax authority of the creation of a separate subdivision is provided for in paragraph 2 of Article 23 of the Tax Code of the Russian Federation, while the obligation to register a taxpayer with the tax authorities at the location of a separate subdivision is provided for in paragraphs 1 and 4 of Article 83 of the Tax Code of the Russian Federation. For non-compliance with the above requirements, Article 116 of the Tax Code of the Russian Federation and 15.3 of the Code of Administrative Offenses of the Russian Federation provide for tax and administrative liability (up to 10,000 rubles and up to 30 minimum wages, respectively). At the same time, it should be taken into account that if the taxpayer is already registered with the tax authority, then there is no obligation to register with the same tax authority, but on a different basis (including in the case of creating a separate subdivision) (paragraph 39 of the resolution of the Plenum of the Supreme Arbitration Court of Russia dated February 28, 2001 No. 5 "On some issues of the application of part one of the Tax Code of the Russian Federation").

The deadlines for filing an application for tax registration at the location of a separate subdivision are given in both Article 23 and Article 83 of the Tax Code of the Russian Federation:

• in accordance with paragraph 2 of Article 23 of the Tax Code of the Russian Federation - within one month from the date of their creation, reorganization or liquidation;
• in accordance with paragraph 4 of Article 83 of the Tax Code of the Russian Federation - within one month after the creation of a separate subdivision (it should be noted that this norm of the Tax Code of the Russian Federation connects the obligation to send an application for tax registration at the location of a separate subdivision with the fact that the organization carries out activities through the specified separate division).

In accordance with Article 9 of the Tax Code of the Russian Federation, when applying the provisions of the Tax Code of the Russian Federation, the tax authorities are understood to mean the Ministry of the Russian Federation for Taxes and Duties and its subdivisions in the Russian Federation. Since the legislator, when deciding on the issue of tax registration of a taxpayer when creating a separate subdivision, focuses on the place of formation of such, it can be concluded that the taxpayer must submit an appropriate application to the tax authority in compliance with the territorial jurisdiction, without taking into account the specifics of accounting for certain groups of taxpayers in specialized tax authorities (tax authorities of an industry or subject orientation - construction, motor transport, banking, etc.). This conclusion is also confirmed by the fact that the need to register with the tax authorities at the place of creation of separate subdivisions is due to the provisions of the Tax Code of the Russian Federation, which provide for the obligation to distribute tax liabilities of the taxpayer, including at the location of these separate subdivisions. Since part of the taxpayer's tax liabilities is subject to distribution to the budgets of other territories, it is logical to assume a mechanism in which the payment of taxes falling on these territories would be controlled territorial bodies at the location of the separate subdivision. At the same time, it is impossible not to recognize the validity of the arguments that a separate subdivision in the framework of tax legal relations should be understood as such a subdivision that leads to the taxpayer becoming obliged to pay taxes to various budgets of the constituent entities of the Russian Federation or municipalities. Otherwise, the isolation of such a subdivision leads only to territorial isolation, in no way affecting the size of the taxpayer's tax liabilities. However, such argumentation, for all its logic, was not evaluated by the courts.

Stationary workplaces

A necessary sign of the creation of a separate subdivision is the presence of stationary jobs, that is, created for a period of at least one month. In accordance with Article 209 of the Labor Code of the Russian Federation, 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. Both labor and civil law contracts can be concluded between an organization and an individual, 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 labor relations(regulated by the Labor Code of the Russian Federation), it should be recognized that jobs, in principle, can only arise 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 creation of jobs and, consequently, to the formation of a separate division. This approach was fully supported by the Federal arbitration court of the Far Eastern District when the resolution dated February 14, 2001 No. F03-A59 / 01-2 / 96 was issued. With regard to the issue of the number of stationary jobs, it is necessary to draw the attention of taxpayers to individual arbitration cases, the resolution of which did not take place in favor of the latter - the court stated the possibility of creating a separate subdivision even if there is one stationary workplace (Decree of the FAS MO dated 23.01.2003 No. KA-A41 / 9052-02, resolution of the FAS VSO dated 09.01.2001 No. A33-8564 / 00-C3-F02-2926 / 00-C1).

Thus, it can be stated that the taxpayer's obligations arising from the fact of the formation of a separate subdivision arise from the moment of equipping stationary workplaces controlled by the employer, provided that activities are carried out through the specified separate subdivision.

This position has been confirmed in many judicial acts.

Obligations to pay taxes

The emergence of a separate subdivision for a taxpayer, by virtue of the provisions of Article 19 of the Tax Code of the Russian Federation and the special norms of part two of the Tax Code of the Russian Federation, gives rise to additional obligations related to determining the proper place for paying the relevant taxes.

Personal income tax (clause 7, article 226 of the Tax Code of the Russian Federation).

Tax agents - Russian organizations specified in paragraph 1 of Article 226 of the Tax Code of the Russian Federation, which have separate subdivisions, are obliged to transfer the calculated and withheld tax amounts both at their location and at the location of each of their separate subdivisions.

The amount of tax payable to the budget at the location of a separate subdivision is determined on the basis of the amount of taxable income accrued and paid to employees of this separate subdivision.

Unified social tax (clause 8, article 243 of the Tax Code of the Russian Federation).

Separate subdivisions that have a separate balance sheet, current account and accrue payments and other remuneration in favor of individuals, fulfill the obligations of the organization to pay tax (advance tax payments), as well as the obligation to submit tax calculations and tax returns at its location.

The amount of tax (advance tax payment) payable at the location of a separate subdivision is determined on the basis of the value of the tax base relating to this separate subdivision.

The amount of tax payable at the location of the organization, which includes separate subdivisions, is determined as the difference between the total amount tax payable by the organization as a whole, and the total amount of tax payable at the location of separate divisions of the organization.

Insurance contributions for compulsory pension insurance (clause 8, article 24 of the Federal Law of December 15, 2001 No. 167-FZ).

Insurers - organizations that include separate divisions, pay insurance premiums at its location, as well as at the location of each of the separate divisions through which these insurers pay remuneration to individuals.

Tax on property of organizations (Article 384 of the Tax Code of the Russian Federation).

An organization that includes separate subdivisions with a separate balance sheet pays tax (advance tax payments) to the budget at the location of each of the separate subdivisions in respect of property recognized as an object of taxation in accordance with Article 374 of the Tax Code of the Russian Federation, which is on a separate balance sheet of each of the them, in an amount determined as the product of the tax rate in force in the territory of the corresponding subject of the Russian Federation, where these separate subdivisions are located, and the tax base ( average cost property) determined for the tax (reporting) period in accordance with Article 376 of the Tax Code of the Russian Federation in respect of each separate subdivision.

Corporate income tax (Article 288 of the Tax Code of the Russian Federation).

Taxpayers - Russian organizations with separate subdivisions, calculate and pay the amounts of advance payments to the federal budget, as well as the amounts of tax calculated at the end of the tax period, at their location without distributing the said amounts among separate subdivisions. Payment of advance payments, as well as tax amounts to be credited to the revenue side of the budgets of the constituent entities of the Russian Federation and the budgets of municipalities, is made by taxpayers - Russian organizations at the location of the organization, as well as at the location of each of its separate divisions based on the share of profit attributable to these separate divisions.

This profit share is defined as the arithmetic average of the share average headcount employees (labor costs) and the share of the residual value of the depreciable property of this separate subdivision, respectively, in the average number of employees (labor costs) and the residual value of depreciable property, determined in accordance with paragraph 1 of Article 257 of the Tax Code of the Russian Federation, in general for the taxpayer.

The share of the average number of employees and specific gravity the residual value of depreciable property is determined based on the actual indicators of the average number of employees (labor costs) and the residual value of fixed assets of these organizations and their separate divisions at the end of the reporting period.

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 subdivisions are located. Calculation of the amounts of advance tax payments, as well as the amounts of tax payable to the budgets of the constituent entities of the Russian Federation and the budgets of municipalities at the location of separate subdivisions, is carried out by the taxpayer independently.

Information about the amounts of advance tax payments, as well as the amounts of tax calculated at the end of the tax period, the taxpayer shall notify his separate subdivisions, as well as tax authorities at the location of separate subdivisions no later than the deadline established by this Article for filing tax returns for the corresponding reporting or tax period.

The tax authorities are trying to fit under the concept of "separate subdivision" any activity of the company. 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 a fine for violations threatens.

What is a separate division

concept "separate division" 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 that is territorially isolated from it, at the location of which stationary workplaces are equipped. The workplace is considered stationary if it is created for a period of more than one month.

From this 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 be different from the address of the organization specified in the constituent documents;
• equipment at the location of a separate subdivision of workplaces for a period of more than one month.

The concept of a workplace in the tax legislation is absent. 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 Labor Code. This is the place where the worker must be or to which he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer.

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

It follows from the above definition that a workplace is directly related to an 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, have entered into an employment relationship. In other words, only the organization with which the employee has concluded an employment contract can be an employer.

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 with an organization for their workers. That is, at the location of a separate subdivision, the employees of the organization must perform their labor duties. Equipping workplaces for employees of another organization does not lead to the formation of a separate subdivision.

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

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

Example 1

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

In this case, Condor does not have a separate division in Moscow.

Consider the case when an organization rents jobs created by another organization for its employees outside its location. In this situation, there is a basis for attributing these jobs to an integral part of the tenant organization. Thus, the organization will have to recognize the emergence of a separate unit.

But 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 work contract or a service contract)? 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 law contracts often hide ordinary labor relations. Therefore, such contracts are the object of close attention during the inspections carried out by the labor inspectorate.

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

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

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 has been created in a territorially separate structural unit, such a unit is considered to be 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 units.

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 object during the repair, a security guard was hired under an employment contract.

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 divisions", you can see one interesting detail. It is defined through the concept of "territorially isolated from the organization of the unit." The latter should be interpreted in the sense in which it is used in other branches of law (clause 1, 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 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 organization's constituent documents (clause 3, article 55 of the Civil Code of the Russian Federation).

At the same time, while distinguishing only two types of separate subdivisions of a legal entity, the Civil Code of the Russian Federation does not restrict a legal entity in creating separate subdivisions of other types. Thus, the Civil Code of the Russian Federation does not impose on a legal entity that has created separate subdivisions 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 workplaces. Thus, in the vast majority of cases, branches and representative offices are separate subdivisions for tax purposes. But the opposite is not true: separate divisions are not only branches and representative offices.

Separate subdivision is considered to be created regardless of the implementation of the registration procedure provided for in 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, a separate subdivision, in order to be recognized as such from the point of view of tax legislation, must have the features established by paragraph 2 of Article 11 of the Code. It can be created both in the form of a representative office or 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 Condor LLC opened a representative office at the location of the purchased office. It employs community workers.

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

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

The creation of a separate unit requires the organization to fulfill certain responsibilities. In particular, it must be registered 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 created? When stationary workplaces are equipped in it. Such a date may be, for example, the day when the employee began his labor duties at the location of the unit.

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

In addition to registering at the location of a separate subdivision, the organization is also obliged to report its creation at the place of its registration. A month is allotted for this from the day the unit was created (clause 2, article 23 of the Tax Code of the Russian Federation). How to report on insurance premiums, if there are separations, see the article "Insurance premiums 2017: separate divisions".

The liquidation of units should be reported in the same way. An organization may be registered with several tax inspectorates. In this case, it must inform everyone about the creation of a separate subdivision. tax inspections where she is registered.

Example 4

CJSC 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 real estate was acquired, the company entered tax records in St. Petersburg. On January 1, 2014 CJSC terminated the lease agreement and decided to carry out trading activity on one's own. For this, workers were recruited into the store.

In this case, a separate subdivision is considered to be created from January 1, 2014. However, the organization is not required to re-register for tax purposes in St. Petersburg. It should only inform the tax inspectorates in Moscow and St. Petersburg about the creation of a separate division.

Sanctions for violations

If an organization files an application for tax registration at the location of a separate subdivision in violation of the one-month period allotted for this, it will face a fine. If the organization is late in submitting 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 filing an application, but also starts operating at the location of a 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 conducting such activities (10%). The minimum fine is 40,000 rubles.

Sanctions threaten not only the organization, but also its officials who committed the above violations. For delay in filing an application, a fine of 500 to 1000 rubles is charged, and if at that time a separate subdivision was operating, 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 separate subdivisions, you need to pay some taxes and submit reports. An organization that violates these responsibilities risks facing serious problems:

• Firstly, 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 a separate subdivision, an arrears are formed, on which penalties will be charged.

Overview of the latest changes in taxes, contributions and wages

You have to restructure your work due to numerous amendments to the Tax Code. They affected all major taxes, including income tax, VAT and personal income tax.

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

Reasons for creating a separate division

• Business expansion
• Control optimization structural divisions in other regions
• The desire of the organization to bring production closer to the sources of raw materials the requirements of environmental legislation on the location of hazardous and hazardous industries away from settlements

Signs of a separate division

• Territorial isolation - located outside the location of the legal entity
• Stationary workplace - implies the presence of workers
• Separated - have their own structure of governing 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 necessary job duties conditions, as well as the fulfillment by the employee of such duties (letter of the Ministry of Finance of July 28, 2011 N 03-02-07 / 1-265, resolutions of the Federal Antimonopoly Service of the North Caucasian District of June 20, 2007 N F08-3590 / 2007-1449A, Federal Antimonopoly Service of the North-Western District dated 02.11.2007 in case A26-11293/2005).

Separate divisions are divided into

• Branches
• Representations
• OP in tax law

The Company may create branches and open representative offices by decision general meeting members of the society. Branches and representative offices are separate subdivisions 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 the Tax Code of the Russian Federation and other branches of legislation do not contain the concept of “structural subdivision of an organization”, paragraph 16 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2 should be followed, according to which structural subdivisions of an organization should be understood as branches, representative offices, and departments , shops, sections, 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 the 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 the employment contract are, among other things, the place of work, the labor function, the conditions that determine the nature of the work. When carrying out activities of a traveling nature, there are no grounds for registering the organization with the tax authority at the place of such activities (letters of the Ministry of Finance of Russia dated 03/01/2012 N 03-02-07 / 1-50, dated 07/28/2011 N 03-02 -07/1-265). For example, when employees visit various organizations, when installing equipment or programs, these employees do not operate in the office of the organization (own or rented).

The same applies to workers who work directly at home.

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

When an organization carries out activities using the labor of a homeworker without stationary jobs, there are no grounds for registering the organization with the tax authority at the place of residence of the employee.

If for execution labor function and for the implementation of interaction between the employer and the employee on issues related to its implementation, the Internet is used, then an agreement on remote work can 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 certain employment contract labor function, in particular, outside the stationary workplace. Thus, remote work does not imply the equipment of a stationary workplace. Therefore, regardless of how long a remote worker is involved, a separate subdivision is not formed.

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

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

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

The above signs in the aggregate mean that the organization operates through its separate division. For the purposes of tax control Russian organization at the place of such activity (the location of a separate subdivision) must be registered with the tax authority (Article 83 of the Tax Code of the Russian Federation).

Date of creation of a separate division

The creation of a stationary workplace can be confirmed

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

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

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

USN when registering a separate subdivision

If an organization has created a separate subdivision that 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 CCP used by the OP is registered with the Federal Tax Service at the location of this unit.

If the EP 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 PFR and the FSS of the Russian Federation at its location.

The organization, which includes the EP, 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/IP; PJSC/JSC)
• Registration of non-profit organizations
• Registration of changes
• Purchase and sale of a share
• Changes in the Criminal Code
• Changes in the types of activities of the company (OKVED)
• Bringing the charter in line with Federal Law N 312-FZ
• Change of name, legal address
• Liquidation and reorganization of LLC/PJSC/JSC (CJSC)
• Termination of activities as an individual entrepreneur
• Other services
• Entry into the register of small businesses in Moscow

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