Unlike entrepreneurs, the legislator allows legal entities to open their own separate subdivisions (OS), which can be of several types. Most often, branches or representative offices are opened, less often simple OPs. Each of them has similar features, but at the same time, differences.

The purpose of creating structural units is to expand the business, increase sales, open outlets or stores, attracting consumers, and as a result - making a profit. Often, depending on the tasks set by the founder or director of the enterprise, in different regions country or within the same locality it opens different kinds of OP.

Initially, the company's management needs to figure out what each of the OPs is, what powers it can be endowed with, how to register it and pay taxes in the future? If a company, for example, needs to place only one employee remotely from the main office, which of the types should this structural unit be classified as? According to the Tax Code, art. 11 for the purpose of taxation, the legislator recognizes under the OP any unit equipped with stationary jobs that can function for more than a month.

The legislator sets out the concept of a stationary workplace in the Labor Code, in Art. 209. It says that it must be controlled by the employer. To do this, his relationship with employees must be regulated by an agreement (labor, civil law, etc.). In fact, an OP with stationary jobs may arise if the enterprise enters into labor Relations with physical face.

The conclusion of other contracts, for example, for the performance of work or the provision of services is not allowed. The second distinguishing feature of the OP is its territorial remoteness from the location of the main office, i.e. it should be located at a different address. The division is recognized as separate, regardless of whether information about it is displayed in the company's charter or in other internal documents.

Overview of concepts and views

At legal one or more EPs equipped with workplaces can be opened for a person.

In turn, they are divided into:

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

Any of the OPs will be able to fully function as soon as jobs are created at its location. The legislator cites references to this concept in various regulations Tax, Labor and Civil Codes.

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

The difference between a branch and a separate division of a regular or representative office lies in the functions and powers to be performed:

• the branch will have to perform all the functions of the main enterprise or part of them, including representative ones;
• the representative office is obliged to represent the interests of the company and protect them;
• the usual OP is an additional working complex, which is no different from those located at the location of the main office of the enterprise.

None of the types of OP can be a separate legal entity, but is created for the purpose of carrying out activities on behalf of the main enterprise, i.e. its creator. SPs must act on the basis of authority to be approved by management.

A regular (simple) SP may not keep a separate balance sheet, but branches or representative offices may. Therefore, the property that will be separated by the enterprise to a structural unit for the performance of duties is accounted for differently, on the main or its OP.

The body authorized by the constituent documents to manage the branch (representative office) appoints a specific person who must act on the basis of a power of attorney. The actions of the head cannot be based on the instructions set forth only in the Regulations on the branch or representative office, founding documents. When an enterprise opens a branch or representative office, it is obliged to enter information about this EP into the constituent documents.

To create a remote working complex called "simple OP", you need:

• the head of the enterprise to issue an Order on its creation;
• amend the Regulations or Rules work schedule the main enterprise, i.e. to local documents.

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

Enough in domestic normative documents indicate the address of the OP and make other changes. The decision to open a branch or representative office is made by voting of participants or founders with the obligatory making of entries in the constituent documents. An individual is appointed to lead. The remaining issues are resolved on an individual basis in each individual case.

Specificity and features

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

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

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

With regard to branches (representative offices), the Tax Code makes these requirements mandatory. Depending on the type of OP opened for the tax, a special form with information is filled out.

The most common form of OP is a branch, which can be assigned all the functions, roles and activities of the main enterprise, which is very convenient for business development, despite the more complicated process of opening it.

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

The main document on the basis of which any of the OPs must work is the Regulations or Rules on the procedure for working. At the same time, a copy of the charter must be submitted to the tax office at the location of the branch (representative office), this is not necessary for a simple EP.

The main differences between a branch and a separate division

Despite the many differences between various types OP, them common feature is dependent on the main company. She owns not only the property and funds in the accounts, but also the goals and tasks that she sets for her structural unit. Main differences: documenting the discovery, making business transactions, accounting and reporting.

The table can clearly show this:

Other clarifications

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

Registration and registration

It is necessary to register with the territorial office of the National Assembly at the location of any EP. If the OP is on a dedicated balance, then he will need to submit reports in the future.

It is necessary to submit a notification to the tax office about the opening of a simple EP within a month. Documents on a branch (representative office) are submitted immediately after the authorized body makes a decision on opening and writes it down in.

It is necessary to submit an application for the establishment of a branch (representative office), as well as certified copies of:

• minutes of the meeting of founders or participants;
• Regulations on the branch (representative office);
• the charter of the enterprise with entries made about the formation of a new structure, indicating its name and location;
• powers of attorney for the appointed head;
• others on request.

Within 5 days, the Supervisory Board is obliged to make changes to the Unified State Register of Legal Entities and register in its databases information about the new structural unit of the enterprise. After registration, the company will receive a notification of amendments to the charter, an extract from the Unified State Register of Legal Entities, certified.

All necessary information about the new structure will be sent to the tax office in the territorial office of the National Assembly at the place where the branch (representative office) is located, where it will be registered. If the OP maintains a separate balance sheet in the future, then you will have to submit reports, pay taxes at the place where the branch (representative office) is located. Also, the new structural unit is assigned separate codes of the State Statistics Committee.

If in one territory, which is under the jurisdiction of different branches of the National Assembly, several OPs are opened within one municipality, then you can choose one of them for registration.

The main enterprise is obliged to report any changes in relation to the open OP within 3 days, otherwise penalties will be imposed on the head. When a simple OP opens, the tax office is only notified that a complex of places is being remotely created at such and such an address, the work of which will be controlled by the main organization.

When it is assumed that the OP will open a current account, will independently maintain a balance sheet, calculate and pay salaries to employees, this indicates the obligation to submit reports to the Pension Fund and the Social Insurance Fund, other budgetary and off-budget funds. A branch, and in some cases a representative office, will need to register with the Funds within a month from the date of opening. All Required documents Before delivery, they are certified by a notary.

The following is submitted to the territorial office of the Pension Fund at the location of the branch (representative office):

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

Together with the application for registration and a letter from Rosstat, information about:

• state registration of the main enterprise in the tax and FSS;
• registration with the National Assembly;
• the decision of the meeting of founders on the opening of the EP;
• having a checking account.

Comparative characteristics

The concept of types of EP is absent in the Tax Code, because for taxation the very fact of opening and operating a unit is important, and not the powers that the enterprise will entrust to it. The Civil Code cites the differences between the OP in Art. 55, which indicates the functional purpose of each of them. If, for example, a representative office is negotiating with participants in civil transactions to conclude transactions before and after, but it, like a branch, cannot represent the interests of the company in court on its own.

The branch directly concludes transactions, negotiates on behalf of the enterprise, performs actions for execution contractual relations, can conduct any activity in which the legal entity is engaged. face.

With regard to a simple OP, we can say that in fact this is an addition to those jobs that are already organized by the enterprise at its main location. All separately, OPs cannot be independent participants in the turnover, but only enter into labor, civil, tax relations and others on behalf of legal entities. faces. Therefore, the responsibility for the activities of any EP lies with the enterprise that opened it.

For example, the difference between a branch and a separate subdivision is that the former can file a lawsuit on behalf of the enterprise, but it is required to attach a power of attorney to the head confirming his authority. The usual OP cannot even do this, and he does not have a leader at all. Any of the OP cannot be held liable for tax separately from the main enterprise, despite its actions contrary to the law.

The territorial isolation of the OP, which the Civil Code speaks of, implies location in another subject of the Russian Federation, i.e. belonging to a different municipality, and not the presence of a different postal address. But in practice, NCs are guided by NCs and do not attach much importance to this concept, therefore they are allowed to open a OP in any place other than the location of the main enterprise, even, for example, in a neighboring house or entrance.

If the head of a branch (representative office) acts on the basis of a power of attorney, then the person responsible for the work of a simple EP in accordance with the job description. The first are appointed by the founders of the enterprise, and the second CEO. The work of the branch is regulated by a separate Regulation, and the complex of workplaces - by internal local acts.

Important Factors

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

All funds and property for organizing their activities are received from the main enterprise. If the branch does not have a dedicated balance, then accounting is not kept, which means that it is simply transferred to the main office, where it is processed. All CW that the branch will produce will be accounted for by the main enterprise, but on separate balance sheet accounts.

When a branch has a current account and it keeps accounting separately, forms a balance, it means that it independently processes primary documents, calculates salaries, taxes, contributions, submits reports, etc. It is important for business leaders to remember, despite the fact that opening a remote work complex places assumes the beginning of its activities after a while, it is necessary to notify the National Assembly at its location in a month from the date of opening.

Otherwise, when a simple OP starts working, you still have to notify the National Assembly about it for registration, but with a fine. Any OP is required to conduct. The main enterprise will stitch sheets of cash books separately for all OPs.

What is better to choose

An important aspect for taxation is the ban on the use of the simplified tax system by the main enterprise if it has a branch or representative office, which does not apply to the organization of simple OP. Therefore, a taxpayer interested in switching to the simplified tax system should take into account that it is better for him to open remote working places than a branch (representative office).

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

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

"New accounting", 2005, N 5

When creating a separate subdivision, the organization must fulfill a number of requirements for tax registration. You will learn about the time frame for this, what documents will be required, how to deregister a unit, from this article.

We are accustomed to perceive a separate division as a separate structure created by the organization in the course of its activities. But at the same time, it is important to keep in mind that the definition of a separate subdivision, which is contained in the Tax Code of the Russian Federation, is much broader than the civil law definition of a separate subdivision, and in most cases the organization needs to register the created separate subdivision with the tax authority.

Conditions for the creation of separate divisions of the organization

According to Art. 11 of the Tax Code of the Russian Federation, a separate subdivision of an organization is understood as any subdivision that is territorially isolated from it, at the location of which stationary workplaces are equipped. Separate subdivision organization is recognized as such, 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 it.

From the point of view of the Tax Code of the Russian Federation, a separate subdivision of an organization is characterized by the following features:

• territorial isolation;
• availability of equipped stationary workplaces;
• carrying out the activities of the organization through a separate division.

Let's take a closer look at these signs.

Territorial isolation

Due to the fact that the criterion of territorial isolation is not established by the Tax Code of the Russian Federation, it is necessary to be guided by the explanations of the financial and tax authorities.

According to the opinion of the Ministry of Finance of Russia, set out in Letter N 03-03-01-04/1/184 of December 22, 2004, a territorially separate subdivision of an organization should be considered a subdivision located on a separate territory, different from the territory on which the organization itself is located, i.e. e. to another address not indicated in the constituent documents as the location of the taxpayer himself. A similar opinion is expressed by representatives of the tax authorities.

If an organization is registered with the tax authority at its location and has separate subdivisions in the territories subordinated to other tax authorities, then it is obliged to register in accordance with the established procedure at the location of each of such separate subdivisions with these tax authorities (see Letter of the Ministry of Finance of Russia dated February 16, 2005 N 03-06-05-04/35).

If a separate subdivision is under the jurisdiction of the same tax authority as the parent organization, then the organization is not required to register with the same tax authority in connection with the creation of this separate subdivision (paragraph 39 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation of February 28, 2001 N 5 "On some issues of application of the first part of the Tax Code Russian Federation").

Equipped stationary workstations

The main feature that characterizes a separate subdivision of the organization is the presence of equipped stationary workplaces in it.

The Tax Code of the Russian Federation does not clarify what is meant by a workplace. According to paragraph 1 of Art. 11 of the Tax Code of the Russian Federation, the institutions, terms and concepts of civil, family and other branches of the legislation of the Russian Federation used in the Tax Code of the Russian Federation are applied in the sense in which they are used in these branches of legislation, unless otherwise provided by the Tax Code of the Russian Federation.

In accordance with Art. 1 of the Federal Law of July 17, 1999 N 181-FZ "On the basics of labor protection in the Russian Federation" workplace- a place where the employee must be or to which he needs to arrive in connection with his work and is directly or indirectly under the control of the employer.

A workplace is considered stationary if it is created for a period of more than one month (Article 11 of the Tax Code of the Russian Federation), but the Tax Code of the Russian Federation does not regulate the issue of what is considered workplace equipment.

The judicial authorities consider that the equipment of a stationary workplace means the creation of conditions for the execution job duties, as well as the very performance by employees of such duties (see Resolutions of the Federal Antimonopoly Service of the North-Western District of 07.10.2002 N A26-3503 / 02-02-07 / 160, the Ural District of 09.01.2003 N F09-2799 / 02-AK).

Another controversial issue- whether a separate subdivision of the organization is formed if it has only one stationary workplace outside its location or there should be two or more such workplaces.

Previously, the judicial authorities expressed the opinion that if there is one workplace, a separate subdivision is not formed (see, for example, Decree of the Federal Antimonopoly Service of the Moscow District of 03.10.2001 N KA-A40 / 5441-01).

However, later position arbitration courts changed in this matter. So, for example, in the Decree of the Federal Antimonopoly Service of the Moscow District dated January 23, 2003 N KA-A41 / 9052-02, it is indicated that registration of a separate subdivision is mandatory even if one workplace has been created in it. This position was also taken by the Federal Antimonopoly Service of the Central District (see Decree N A62-1493 / 04 of July 26, 2004). The Federal Antimonopoly Service of the Northwestern District also proceeded from the fact that the creation of one workplace is the basis for registering a separate subdivision (see Resolution No. A26-6342 / 01-02-12 / 178 of May 27, 2002).

The same point of view is stated in the Letter of the Ministry of Taxation of Russia dated April 29, 2004 N 09-3-02 / 1912 "On the recognition of one workplace as a separate subdivision".

According to the Ministry of Taxation of Russia, such a criterion for a separate subdivision as the equipment of stationary workplaces, specified in Art. 11 of the Tax Code of the Russian Federation, has also incorporated the concept of one equipped stationary workplace. In addition, the ministry believes, since Art. 11 of the Tax Code of the Russian Federation, the concept of "workplace" is used in the singular, it would be wrong in terms of semantic load if the legislator did not consider a unit consisting of one workplace to be a separate division of the organization.

Consequently, the creation of one workplace by an organization outside its location is the basis for registration with the tax authority of the organization at the location of its separate subdivision.

Registration of a separate division of the organization

Within one month after the creation of a separate subdivision, the organization is obliged to report its creation to the tax authority at its location, as well as register at the location of the corresponding separate subdivision (Article 23, paragraphs 1, 4 of Article 83 of the Tax Code of the Russian Federation ).

Date of creation of a separate division

The moment when a separate subdivision is considered to be created is not defined in the Tax Code of the Russian Federation.

According to the tax authorities, the date of creation of a separate subdivision should be determined according to the earliest document by date, which recorded the presence of all signs of a separate subdivision, established by Art. 11 of the Tax Code of the Russian Federation (see the article "On the tax registration of an organization at the location of separate subdivisions", the journal "Tax Bulletin", 2004, No. 9).

So, the date of creation of a separate subdivision will be considered the date of decision general meeting shareholders to open a branch in another city.

Some judicial bodies express the point of view according to which the date of creation of a separate subdivision in the form of a branch is the date of amendments to the constituent documents of the organization (see Decree of the Federal Antimonopoly Service of the Central District of 19.08.2004 N A35-7602 / 03-C4).

However, in most cases, the position of the judiciary is that the moment of creation of a separate subdivision should be considered the moment the organization equips a territorially separate stationary place for carrying out activities through its separate subdivision (see Resolutions of the FAS of the Far Eastern District of 14.01.2005 N F03-A04 / 04- 2/3923, Moscow District dated 09.09.2004 N КА-А40/7836-04, Volga-Vyatka District dated 08.19.2004 N А29-8668/2003a, West Siberian District dated 05.28.2003 N Ф04/2319-394/А70 -2003).

The creation of a separate subdivision is, for example, the conclusion of a lease agreement for non-residential premises used in production activities this division.

Documents submitted upon registration

The recommended form for reporting on the creation of a separate subdivision located on the territory of the Russian Federation was approved by Order of the Ministry of Taxes and Taxes of Russia dated April 2, 2004 N SAE-3-09 / [email protected]"On the approval of the recommended forms of messages used when taking into account information about legal and individuals Oh".

As the name of this form suggests, it is advisory in nature, i. the organization has the right to submit a message in any form, but this must be done. The deadline for submitting a message on the creation of a separate subdivision of the organization is 1 month from the moment of its creation (Article 23 of the Tax Code of the Russian Federation).

The application form for registration of a legal entity with the tax authority at the location of its separate subdivision on the territory of the Russian Federation (hereinafter referred to as the application) and the procedure for filling it out are contained in the Order of the Ministry of Taxes of Russia dated 03.03.2004 N BG-3-09 / 178 "On approval of the Procedure and conditions for assigning, applying, as well as changing the identification number of the taxpayer and the forms of documents used when registering, deregistering legal entities and individuals.

The deadline for submitting an application is 1 month from the date of creation of a separate subdivision (clause 4, article 83 of the Tax Code of the Russian Federation).

The application is filled out by the organization in one copy and submitted to the tax authority at the location of the separate subdivision simultaneously with a copy of the certificate of registration of the organization with the tax authority and copies of documents confirming the creation of a separate subdivision (if any).

Thus, an organization can be registered with the tax authority at the location of a separate subdivision and in the absence of documents confirming the creation of a separate subdivision.

Documents confirming the creation of a separate subdivision of an organization include: a regulation on a branch (representative office), an order to establish a branch (representative office), a power of attorney issued to the head of a branch (representative office), etc. If a separate subdivision is not registered as a branch or representative office, then its the creation is confirmed by the presence of relevant documents (regulations, orders, powers of attorney for the right to conduct business, other documents of financial and economic activity).

The tax authority is obliged to register the organization at the location of the separate subdivision within five days from the date of submission of all necessary documents.

In this case, a new TIN is not assigned. The registration reason code (KPP) is assigned to the organization in the tax authority both at the location of the organization and at the location of each of its separate divisions.

When registering a separate subdivision of the organization, a notification is issued in the form N 09-1-3, approved by Order of the Ministry of Taxes of Russia dated 03.03.2004 N BG-3-09 / 178.

Tax registration and deregistration are free of charge (clause 6, article 84 of the Tax Code of the Russian Federation).

Responsibility for failure to submit a message on the creation of a unit and violation of the deadlines for registration

For failure to submit a report on the creation of a separate subdivision within the time period established by Art. 23 of the Tax Code of the Russian Federation, the organization may be held liable in the form of a fine of 50 rubles. on the basis of Art. 126 of the Tax Code of the Russian Federation.

Simultaneously executive organization responsible for submitting to the established Art. 23 of the Tax Code of the Russian Federation, the deadline for reporting the creation of a separate subdivision may be subject to an administrative fine on the basis of Art. 15.6 of the Code of Administrative Offenses of the Russian Federation in the amount of 3 to 5 minimum dimensions wages.

In case of violation of the deadline for filing an application, the tax authority may impose a fine on the organization in the amount of 5,000 or 10,000 rubles. (if the delay is more than 90 days) on the basis of Art. 116 of the Tax Code of the Russian Federation. For the same violation, the head of the company may be fined from 500 to 1000 rubles. (Clause 1, Article 15.3 of the Code of Administrative Offenses of the Russian Federation).

If a separate subdivision of the organization created, but not registered, carried out income-generating activities, then the organization may be held liable under Art. 117 of the Tax Code of the Russian Federation, which provides for the collection of 10% of income received, but not less than 20,000 rubles, and when such activities are carried out for more than three months - in the amount of 20% of income received during the period of activity without registration for more than 90 days. The head of the organization can be fined from 2000 to 3000 rubles. (Clause 1, Article 15.3 of the Code of Administrative Offenses of the Russian Federation).

Registration of a separate subdivision with off-budget funds

For separate divisions of the organization that have a separate balance sheet, current account and make payments and other remuneration in favor of individuals, registration is provided with the territorial offices of the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Compulsory Medical Insurance Fund.

The relevant provisions are contained in federal law dated 23.12.2003 N 185-FZ "On amendments to legislative acts of the Russian Federation in terms of improving the procedures for state registration and registration of legal entities and individual entrepreneurs" and in the regulatory legal acts of these extra-budgetary funds adopted in accordance with it.

For registration in pension fund RF organizations must apply to the appropriate territorial body. No written applications are required. The territorial authority makes a request to the tax authority in which the organization has registered its separate subdivision, and, having received the information, registers the organization within a period not later than five days.

After registration, the territorial body of the PFR sends a notice to the organization in two copies. One of them must be transferred within 10 days to the territorial body of the PFR, in which the organization itself is registered (see section II of the Procedure for registration in the territorial bodies of the Pension Fund of the Russian Federation of insurers making payments to individuals, approved by the Decree of the Board of the Pension Fund of the Russian Federation dated 07/19/2004 N 97p).

In order to register with the territorial branch of the Social Insurance Fund of the Russian Federation, an organization must submit an application in the prescribed form. The deadline for submitting an application is no later than 30 days from the date of creation of a separate subdivision.

Simultaneously with the application, duly certified copies of the certificate of state registration of the organization are submitted; certificates of registration of the organization with the tax authority; notification of registration with the tax authority at the location of the separate subdivision; documents confirming the creation of a separate subdivision (regulations on a separate subdivision, a power of attorney issued by the organization to the head of a separate subdivision); notice of registration as an insurer of a legal entity issued by the regional office of the Fund at its location. If a separate subdivision has an open bank account, a certificate from the bank about this account is also submitted.

Registration is carried out within five working days from the date of receipt of documents. When registering an organization at the location of a separate subdivision, an extended registration number, supplemented by the code of a separate subdivision, and the code of subordination.

A notice of registration of an organization at the location of a separate subdivision is issued in triplicate. One copy is sent to the organization, the second - to the branch of the regional branch of the FSS of the Russian Federation, which interacts with the insured organization, the third - to the regional branch of the FSS of the Russian Federation at the place of registration of the organization (see section II of the Procedure for registering legal entities as insurers at the location of separate divisions and individuals in the executive bodies of the Social Insurance Fund of the Russian Federation, approved by the Decree of the FSS of the Russian Federation of March 23, 2004 N 27).

For registration in the territorial office of the Compulsory Medical Insurance Fund of the Russian Federation, the organization also submits an application. The deadline for its submission is no later than 30 days from the date of the creation of a separate subdivision (Article 9.1 of the Law of the Russian Federation of June 28, 1991 N 1499-1 "On health insurance of citizens in the Russian Federation").

The procedure for registration of organizations-insurers in the territorial fund of compulsory medical insurance and the form of the certificate of registration of the insured are established by the Government of the Russian Federation. To date, no such procedure has been established.

Liquidation of a separate division of the organization

Upon liquidation of a separate subdivision, the organization is obliged to report this to the tax authority at its location (clause 2, article 23 of the Tax Code of the Russian Federation). The form of the message is not set, so it is submitted in any form.

At the location of the separate subdivision, the organization must submit an application for its deregistration (clause 5, article 84 of the Tax Code of the Russian Federation). The application form for deregistration of an organization with the tax authority at the location of its separate subdivision and the procedure for filling it out were approved by Order of the Ministry of Taxation of Russia dated 03.03.2004 N BG-3-09 / 178. The application for deregistration is submitted in one copy.

The removal of a separate subdivision from the register is carried out by the tax authority within 14 days from the date of filing by the organization of the application.

In the event of liquidation of a separate subdivision of an organization, there is no mandatory on-site tax audit. By general rule such a check is carried out during the liquidation of the organization (Article 89 of the Tax Code of the Russian Federation). In private clarifications, the tax authorities express the opinion that an on-site tax audit of a liquidated separate subdivision can be carried out, but within the 14-day period established for deregistration of the subdivision.

S. Rogotskaya

ACDI "Economics and Life"

A separate subdivision of a legal entity - 2018 - 2019 can be organized as a branch, representative office or in another form. We will tell you what a separate division of a legal entity is, what are its main features, how it is registered.

What is a separate division

The question of organizing a separate subdivision (hereinafter - OP) of a legal entity arises when the place of actual conduct of activities differs from the legal address of the named person.

Civil legislation distinguishes only 2 types of OP organizations - this is a representative office and a branch (Article 55 part 1 Civil Code RF dated November 30, 1994 No. 51-FZ).

At the same time, Art. 11 part 1 of the Tax Code of the Russian Federation of July 31, 1998 No. 146-FZ gives a transcript of the very definition of "OP legal entity", while the main criteria are:

• territorial isolation of such a unit from the organization itself;
• the existence of equipped stationary jobs in such a unit.

The tax legislation does not offer a list of types of OP.

This concept is also used in Art. 40 Labor Code RF dated December 30, 2001 No. 197-FZ, where, in addition to branches and representative offices of the organization, “other separate divisions” are named.

Based on a systematic analysis of the legislation, it can be concluded that the creation of other EPs that are neither a representative office nor a branch is possible.

The EP is recognized as such regardless of whether or not there is information about it in the statutory or other internal documents of the legal entity. When creating an EP, the parent organization should not make changes to the named documentation, in contrast to the data on the creation of branches and representative offices, which are necessarily displayed in the Unified State Register of Legal Entities (paragraph 3, clause 3, article 55 of the Civil Code).

Stationary workplace as a sign of OP

The workplace is considered stationary if:

• It is organized for a period of more than 1 month (Article 11 of the Tax Code).
• The employee is on it or must arrive there in connection with work (Article 209 of the Labor Code). The fact of the frequency of the employee’s stay at such a place, the duration of the stay directly at the equipped place, the method of organizing work (for example, to perform labor functions for the period of a business trip - see letter of the Ministry of Finance of the Russian Federation of 10.04.2009 No. 03-02-07 / 1) are not taken into account. -176, dated December 19, 2008 No. 03-02-07 / 1-522).
• The employer exercises control over him to one degree or another (this may be evidenced, for example, by the fact that the employer has the rights to own, use and dispose of the relevant real estate - resolution of the Federal Antimonopoly Service of the Moscow Region dated 02.03.2009 No. KA-A40 / 817-09).
• It serves for the actual performance by the employee of his official duties (for example, Resolution 9 of the AAS dated 08.10.2007 No. 09AP-10255 / 07-AK in case No. A40-10267 / 07-141-57).
• An employment relationship has been established with the employee (Article 20 of the Labor Code). For example, the decision of the Federal Antimonopoly Service of the Moscow Region. No. KA-A40/14894-07 dated January 29, 2008 in case No. A40-10267/07-141-57.

Thus, they cannot be recognized as a stationary workplace, for example, warehouses for work in which there is no permanent staff unit. Also, the fact of organizing a remote workplace is not a basis for organizing an EP.

Regulations for the creation of OP

The legislation does not contain direct instructions on the specific order in which the organization's OP should be created.

In this case, the following algorithm can be used:

1. Deciding on the organization of the OP. It is necessary to determine whether, by all indications, the created EP is a branch or representative office, since a different registration procedure is provided for them.
2. Analysis of the characteristics of the created workplace.
3. Issuance of an order on the formation of the OP.
4. Implementation of adjustments in the rules of the internal labor regulations of the organization.
5. Submission to the bodies of the Federal Tax Service of the Russian Federation of information on the creation of the OP - within 1 month from the date of the organization of the OP (paragraph 2, subparagraph 3, paragraph 2, article 23 of the Tax Code). Informing the bodies of the Federal Tax Service is carried out by sending a notice by the legal entity in the form No. C-09-3-1, approved. by order of the Federal Tax Service of Russia dated 09.06.2011 No. ММВ-7-6/ [email protected]
6. From 01/01/2017, it is necessary to inform the tax authority about empowering the EP with the authority to make payments to individuals (clause 7, clause 3.4, article 23 of the Tax Code of the Russian Federation). The form of such a message was approved by the Order of the Federal Tax Service dated January 10, 2017 No. MMV-7-14 / [email protected] In this case, the payment of insurance premiums and reporting on payments made by the EP is made at its location (clauses 7, 11, article 431 of the Tax Code of the Russian Federation).

Signs indicating the creation of a branch or representative office

When creating an EP, the parent organization may take actions in which the regulatory authorities may see signs of the creation of a branch or representative office, which may cause the organization to be held liable for violation of the tax registration rules or lead to unplanned tax consequences.

In the regulation on the EP, it is necessary to state that this EP is not a branch or representative office, and also does not conduct the economic activities of the organization in full - for this, you can make a list of functions that the OP can perform.

Even if the charter of the organization contains an indication of the possibility of creating branches and representative offices, this does not mean that all created EPs will certainly be branches or representative offices.

Signs of a branch or representative office are also:

• the presence in the EP of its own leader, acting on the basis of a power of attorney;
• performance by the EP of representative functions and functions to protect the interests of a legal entity (Article 55 of the Civil Code).

Registration of OP

Legal entities must be registered with the departments of the Federal Tax Service at the location of all their OPs (paragraph 2, clause 1, article 83 of the Tax Code).

The Federal Tax Service independently registers Russian legal entities at the place of business by such a legal entity through its OP (except for branches and representative offices) on the basis of reports provided by such legal entities in the form No. C-09-3-1 on the creation of an OP (clause 4 of article 83 of the Tax Code ).

The period allotted for the implementation of this procedure is 5 working (subclause 6, article 6.1 of the Tax Code) days from the date of acceptance of the said message by the Federal Tax Service (paragraph 2, clause 2, article 84 of the Tax Code).

Upon completion of the said procedure, an appropriate notification and certificate is issued.

Thus, the organization needs to timely submit a message about the creation of the EP at its location, and this information will be transferred to the relevant tax authorities, to which the organized OP belongs. According to a similar scheme, registration of subsequent EPs opened by the organization will be carried out.

Notification of the tax authority of any changes that have occurred in the data on the EP previously submitted to the Federal Tax Service must be made within 3 business days from the date of the change in the relevant parameters (paragraph 2, clause 3, article 84 of the Tax Code). The specified notification is sent by the parent organization to the Federal Tax Service at the place of registration of such a legal entity (paragraph 3, subparagraph 3, paragraph 2, article 23 of the Tax Code). Form No. C-09-3-1 is also used for this.

Untimely transfer of the said documentation to the Federal Tax Service authorities entails a fine on the taxpayer in the amount of 200 rubles. for each document submitted with the specified violation (clause 1 of article 126 of the Tax Code).

So, the legislation does not limit the ability of a legal entity to create, in addition to branches and representative offices, other EPs. An organized EP must be registered with the Federal Tax Service at the location of such an OP. Signs of OP are indicated by civil, tax and labor legislation.

It happens that a newly formed LLC does not have an office that is not its own or rented. In this case, it is registered only at the 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 the correspondence, including from official authorities, arrives on time, this is not a problem. However, when an LLC begins to operate, there is a need for a physical location.

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

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

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

Separate division: implies the presence of at least one "stationary" workplace. The workplace means the conclusion of an employment contract with an employee for at least one month. Work should be controlled by the employer, and the employee himself, is at his workplace, according to his official duties. (Reason: article. 209 of the Labor Code)

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

Hired workers with whom cooperation is carried out remotely are also not considered “stationary”. Therefore, in order to conclude contracts with them, it is not at all necessary to register a separate division.

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

How to open a separate division for an LLC, 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 a separate enterprise be registered so that it retains the right to the simplified tax system?

Here is what the Tax, Labor and Civil Codes say:

• According to Art. 11, NC, A separate subdivision of an organization is any subdivision that is territorially separate from this organization and has stationary workplaces.
• 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, apart from representative offices and branches, separate subdivisions can have.)
• According to Art. 40, TK Collective agreements, may be in the organization as a whole, in branches, representative offices and other separate structures.

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

The following characteristics of branches and representative offices are prescribed in the legislation:

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

Such details are necessary, because if you do not understand this issue, the head, without realizing it, may register a separate subdivision as a branch or representative office, which will deprive him of the opportunity to carry out the activities of the organization under the simplified tax system.

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

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.

1. The charter of an LLC states that the actual creation of a branch or representative office. (In itself, the ability to create a branch or representative office, which can also be spelled out in the charter, does not affect the taxation system)
2. The parent organization approved the regulations on branches and representative offices.
3. Branches and representative offices have a designated manager acting by proxy.
4. Internal regulatory documentation has been developed to regulate the activities of a branch or representative office.
5. Both branches and representative offices act in the interests of the parent organization before third parties, in courts and other instances.

We conclude: that in order to be eligible for the simplified tax system, it is necessary to check that the separate subdivision being created does not have the above signs of a branch or representative office. Also, in the Regulations on separate subdivisions, it should be indicated that it is not a branch and representative office, and does not have such signs, does not 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 in the tax office

In Art. 83.1 of the Tax Code of the Russian Federation, the Organization must register at the location of separate subdivisions. In addition, it is necessary to report to the tax authority about each new separate subdivision within a month and about changes in these subdivisions 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:

• Notify the tax authority in which the parent organization is registered (form No. С-09-3-1);
• Carry out a statement to the tax office, at the address of the unit being opened, if the address of the tax service differs from that at which the head organization is registered.

In the event that several separate divisions are registered at once, located on the territory of one municipality, but on 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, in one city there are several tax services, and the organization in this city plans to open four stores that are located on the territory of different NS, in this case, all four stores can be registered as separate divisions in one tax service.

If a separate subdivision changes its location address, you should report this with the indication of the new address to the National Research Institute (form No. С-09-3-1) at the place of registration of the subdivision.

Registration of separate divisions of LLC

It is necessary to register a separate subdivision in the funds at the location if it maintains a separate balance sheet, opens a current account and plans 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 the registration of an LLC on the territory of the Pension Fund of the Russian Federation;
• A package of documents confirming the opening of a separate subdivision, as well as a current account and balance sheet.
• application for registration (original)

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

• Certificate of tax registration;
• Certificate of GRUL;
• An order to open a separate subdivision, documents confirming the existence of a current account and opening a balance sheet;
• Letter from the state statistics of Rosstat;
• Notice of tax registration;
• The only original is the application for registration;

It is noteworthy that the simplified tax and insurance premium for employees of a separate subdivision is 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 a separate subdivision.

Responsibility for violations when opening a separate subdivision

The following violations of the registration period for separate subdivisions entail penalties:

• The deadline for filing a report on tax registration has been violated - 10,000 rubles. (Art. 116 NKRF);
• A separate subdivision is functioning, but 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);
• Violated terms of registration in the Pension Fund - 5000 rubles. and 10,000 rubles. (in case the registration delay lasts more than 90 calendar days); (Article 27 No. 167-FZ of 12/15/2001);
• Similar fines are provided for violations of the terms of registration in the Social Insurance Fund 5000 rubles. and 10000 rub. respectively (Article 19 No. 125-FZ of 07/24/98).

Procedure for opening a separate division

1. Make sure that you are registering a separate division, and not a branch or representative office. (Another registration algorithm)
2. Check whether the workplaces are stationary (created for a period of more than a month, employees are present there according to the labor schedule).
3. Within 30 calendar days, inform the tax authority of the parent company about the registration of a separate subdivision (form No. С-09-3-1)
4. Within 30 calendar days, register with the FPR and the FSS, if the separate subdivision has its own current account and maintains a balance.
5. Report all changes (address, name) within 3 days to the Tax Service, in the territory of registration of a separate subdivision (form No. С-09-3-1)

Let's summarize. Most often, the registration of a branch or representative office may not be justified at all. It is much easier and faster to register a separate subdivision 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 application process can take as little as a week.

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 conditions necessary for the performance of labor duties, 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 Caucasus District of June 20, 2007 N F08-3590 / 2007-1449A, Federal Antimonopoly Service of the North-Western District of November 2, 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 of the general meeting of participants in the company. 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 employees engaged 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 territorial bodies PFR and FSS RF at their 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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