The concept of a separate division of the organization. Separate divisions

Unlike individual entrepreneurs, legal entities (hereinafter - LE) have the right to create their own separate divisions (hereinafter - OP) for various purposes. Russian legislation regulates in detail the conditions and procedure for their creation. In this article, we will answer possible questions that arise when creating the relevant units in practice.

What is a separate division of the organization

To answer this question, we first need to understand the corresponding concept. Definition this concept is given in paragraph 2 of Article 11 of the Tax Code of the Russian Federation.

According to this norm, the main features of OP are:

• difference between the addresses of the locations of legal entities and OPs. The Financial Department of Russia notes that the separation of a branch (representative office) from a legal entity takes place if the addresses of the OP and the legal entity are different (Letter dated August 18, 2015 No. 03-02-07/1/47702);
• availability of stationary workplaces at the location of the EP (hereinafter referred to as the CWP). Organized legal entity workplace should function for at least 1 month.

If a subdivision does not meet the established criteria, it is not recognized as a separate subdivision. What it is in this case is a subject of separate consideration, but such a structure does not fall under the concept of OP in the sense given to it by the legislation. Therefore, there is no need to reflect such a structural formation in the Unified State Register of Legal Entities.

Types of separate divisions

Representation

The activities of the representative office of the legal entity are the representation of the interests of the organization and their protection (). As you can see, the name of the structure fully corresponds to the purpose of the specified OP.

Taking into account the concept of EP and the activities of the representative office, we can formulate its main features:

• location at an address different from the address of the parent organization;
• implementation of functions to represent the interests of legal entities and their protection.

The representative office is not a legal entity, its head acts on the basis of a power of attorney from the parent organization, and the representative office itself - on the basis of the relevant regulatory provision approved by the organization that created it.

A representative office can, for example, carry out an advertising function for legal entities, search for clients for legal entities in various regions, etc.

Branch

Another type of separate structural unit is a branch.

Despite the broader range of powers compared to the representative office, the branch is also not an independent organization.

The legal basis of activity is similar to representation:

• the director of the branch receives an appointment and a power of attorney in the parent organization;
• the branch acts on the basis of the regulations adopted by the head organization.

Important!

The head of the OP receives a power of attorney to act on behalf of the organization, and not on behalf of the OP, because. the legal status of a separate subdivision does not allow its head to be recognized as the sole executive (or other) body legal entity(i.e. parent organization).

Information about branches and representative offices is reflected in the Unified state register legal entities, from where it gets to the tax authorities for the purpose of accounting.

If stationary jobs are not organized, then OP does not arise.

The creation of a stationary workplace is understood as the organization of conditions for the implementation labor function employee, as well as the direct implementation labor activity(Letter of the Ministry of Finance of Russia dated March 01, 2012 No. 03-02-07 / 1-50,).

If a stationary workplace has been created, then it does not matter how much time the employee performs official duties at this place (Letter of the Ministry of Finance of Russia dated January 18, 2012 No. 03-02-07 / 1-20).

Having found out that a separate structural subdivision of a legal entity is a branch or representative office operating on the basis of special provisions and not being a legal entity, we proceed to consider the formalities required when creating a business entity.

In what cases is a separate division opened?

As already noted, the cases that entail the need to create an OP may be different.

For example, a parent organization registered in a federal city carries out wholesale trade in various subjects Russian Federation. To trade in the respective regions, she needs the organization of warehouse space and employment employees who control the safety of goods in the field. If for this stationary jobs are created for a period of more than 1 month, the legal entity has the need to create a EP and, as a result, the obligation to register it with the tax authorities.

The creation of a separate division of the Tax Code of the Russian Federation connects with the need to register it with the Inspectorate of the Tax Service of Russia at the location of each PS (paragraph 1 of Article 83 of the Tax Code of the Russian Federation).

As follows from the Letter of the Financial Department dated December 11, 2015 No. 03-02-07 / 1/72669, if several legal entities are created by a legal entity in one municipality, then registration should be carried out at the location of one of the legal entities at the discretion of the legal entity.

According to paragraph 3 of Article 83 of the Tax Code of the Russian Federation, registration at the location of a branch or representative office of a legal entity is carried out on the basis of the information contained in the Unified State Register of Legal Entities.

In other cases, when the EP is not a branch or representative office, subparagraph 3 of paragraph 2 of Article 23 of the Tax Code of the Russian Federation instructs organizations to notify the IFTS of Russia at the location of the legal entity of the creation of the EP within one month from the date of the creation of the EP.

Separate subdivision

A separate division is always extra hassle for an accountant. Problems begin already at the stage of its creation. What is a separate division? When is it considered created? In which case it is necessary to become tax registered at the place of its location, and in which case it is not?

What is a separate division

The concept of a separate subdivision of an 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 in the presence of the following features:

• 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 the Federal Law of July 17, 1999 N 181-FZ "On the Fundamentals of Labor Protection in the Russian Federation".

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

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, the organization constructed the building and equipped it with office rooms for rent.

From the above definition, it follows that the workplace is directly related to the employee who has concluded an employment contract with the employer who created this workplace.

Articles 15 and 16 of the Labor Code of the Russian Federation state that an employee and an employer are persons who, on the basis of an employment contract concluded between them, entered into 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 by the organization for its employees. 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 confirmed by the definition of the location of a separate subdivision given in paragraph 2 of Article 11 of the Tax Code of the Russian Federation. 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 subdivision 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 agreements are subject to close attention during inspections by the labor inspectorate. If it is proved that the civil law contract was concluded only for the purpose of "masking" labor relations, the penalty can not 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.

<*>Read more about this in the article "Agreement of a civil nature: be careful" // RNA, 2003, N 5. - Note. ed.

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

Separate subdivision of a legal entity: reporting and taxation

A literal interpretation of the definition given in Article 11 of the Tax Code of the Russian Federation may lead to the conclusion that 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 job is created. At the same time, banks recognize these exchange offices as separate units.

Example 2. LLC "Atlant" is registered in Omsk. The Company has acquired industrial premises in the Tomsk region that are unsuitable for operation and require 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.

Branches, representative offices and separate divisions: what is the connection?

If you carefully read the definition of the term "separate subdivision" given in paragraph 2 of Article 11 of the Tax Code of the Russian Federation, you will notice one interesting detail. It is defined through the concept of "territorially separated from the organization 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 constituent documents of the organization (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 overwhelming 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.

A 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 acquired 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 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. The legitimacy of this position was, in particular, confirmed by the Decree of the Federal Arbitration Court of the West Siberian District dated November 11, 2002 in case No. F04 / 4146-855 / A03-2002.

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 vehicles subject to taxation. Therefore, if the organization is already registered with tax office at the location of a separate subdivision, it is not necessary to re-register. This is stated in the Letter of the Ministry of Taxes of Russia dated 08.08.2001 N ShS-6-14 / [email protected]

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

Example 4. CJSC Topol is registered in Moscow and is registered only with the Moscow Tax Inspectorate. In 2002, it acquired a shop in St. Petersburg and leased it out. Since real estate was acquired, the company entered tax records in St. Petersburg. On January 1, 2003 ZAO 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, 2003. However, the organization is not required to re-register with tax 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 by no more than 90 days - 5,000 rubles, more than 90 days - 10,000 rubles. This is stated in Article 116 of the Tax Code of the Russian Federation.

If the organization not only delays the submission of the application, but also starts operating at the location of the separate subdivision, liability will arise in accordance with Article 117 of the Code. The penalty will be calculated as a share of the income received as a result of conducting such activities (10 or 20% depending on the duration of the activity). The minimum fine is 20,000 rubles.

Sanctions threaten not only the organization, but also its officials who committed the listed violations. For delay in filing an application, a fine of 5 to 10 minimum wages (that is, 500 - 1000 rubles) is charged, and if at that time a separate subdivision was operating - from 20 to 30 minimum wages (2000 - 3000 rubles). This is stated in Article 15.3 of the Code of Administrative Offenses of the Russian Federation.

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

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

<**>Read more about this in the reference material "Separate divisions: how to pay taxes and submit reports" // RNA, 2003, N 9. - Note. ed.

S.A. Kumekov

magazine "Russian Tax Courier"

What is a separate division of the organization

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

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

Reasons for creating a separate division

• Business expansion
• Optimization of management of 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
• Separate - 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 Caucasus 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 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 an employment contract are, among other things, the place of work, the labor function, and 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 equipment or programs are installed, 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 the Internet is used to perform a labor function and to interact between the employer and the employee on issues related to its performance, then an agreement on remote work may be concluded between the parties.

According to Art.

312.1 of the Labor Code of the Russian Federation remote work is the performance of a certain employment contract labor function, in particular, outside the stationary workplace. Thereby, remote work does not involve 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, a Russian organization at the place of such activity (the location of a separate subdivision) must be registered with the tax authority (Art.

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 division 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 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

We are glad to see you among our Clients!

Change of address of a separate division ... Or the promised one has been waiting for three years

For several years, the Ministry of Finance has promised to introduce amendments to the tax legislation regulating the procedure for accounting for separate divisions of organizations in the tax authorities in connection with a change in their location. A number of written explanations on this issue serve as confirmation. Currently, the Tax Code has been adjusted, including on tax administration issues. But did the financial department fulfill its promise?

A gap in tax law

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

In this regard (in the absence of any norms of tax legislation regulating the actions of taxpayers when changing the address of a separate subdivision), the Ministry of Finance in its explanations regularly advises taxpayers to be patient and wait for the relevant changes in the Tax Code, and until this happens, insists on implementing the procedure closing and opening of a separate division. This is also stated in his recent Letter dated 06/18/2010 N 03-02-07 / 1-282<1>.

Separate division moves to a new office

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

Note! The Tax Code does not contain instructions on what day to consider the day of the creation of a separate subdivision. There are no clarifications from the regulatory authorities on this issue. Moreover, according to paragraph 2 of Art. 11 of the Tax Code of the Russian Federation, a separate subdivision is considered to be created even if the fact of its creation is not reflected in any organizational and administrative document.

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

Pointing out in Letter N 03-02-07 / 1-282 that there are no norms in the tax legislation regulating the procedure for changing the address of a separate subdivision, officials of the Ministry of Finance recommend that taxpayers in this situation deregister it with the tax authority at the old location and register it in tax authority at a new address (see also Letters of the Ministry of Finance of Russia of December 28, 2009 N 03-02-07 / 1-575, of May 8, 2009 N 03-02-07 / 1-236, of July 14, 2008 N 03-02 -07/1-278).

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

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

This approach to changing the address by a separate subdivision was also supported by the judges in the Decree of the Federal Antimonopoly Service of the Higher Military District of September 16, 2008 in case N A82-14769 / 2007-20. As the arbitrators pointed out, the provisions of the Tax Code of the Russian Federation do not provide for the procedure for changing the location of a separate subdivision of a legal entity by making such an entry, but only contain the procedure for deregistration of an organization at the location of a separate subdivision and its registration regardless of the location of the tax authority.

When an organization fails to comply with the recommendations of the controllers and does not close a separate subdivision at the old address, the tax authorities often return without execution a message from the organization about the tax registration of its separate subdivision at a new address, sent in order to fulfill the obligation provided for in paragraphs. 3 p. 2 art. 23 of the Tax Code of the Russian Federation (form N С-09-3 "Report on the creation (closure) in the territory of the Russian Federation of a separate subdivision of the organization", approved by Order of the Federal Tax Service of Russia dated April 21, 2009 N MM-7-6 / [email protected], or a written notice drawn up in any form).

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

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

Address changes - problems remain

Changing the address of a separate subdivision gives taxpayers a lot of trouble. On the one hand, the procedure for closing a separate subdivision (which controllers insist on) is usually associated with reconciliation of mutual settlements (including with the tax authority) or with an on-site tax audit in respect of this subdivision, which is provided for in paragraph 5 of Art. 84 of the Tax Code of the Russian Federation. Also, the closure is associated with significant costs for the execution of a rather large volume of documents. Some of them must be submitted to the tax authority, others are needed to bring internal documents into line (for example, orders to close (open) a separate division, an order to appoint a head, personnel orders, etc.).

On the other hand, the tax authorities make claims against organizations operating at an address other than that specified in the charter. Moreover, not finding a taxpayer by his legal address, tax authorities often go to court with a demand for its liquidation, citing the fact that the indication of a fictitious address during registration is a gross violation of the law (paragraph 2 of article 25 federal law dated 08.08.2001 N 129-FZ "On state registration legal entities and individual entrepreneurs"). However, such a position of the tax authorities, as a rule, does not find support among judges, since in the named norm we are talking about irreparable violations. The mismatch of addresses can hardly be considered as such, as evidenced by the existing arbitration practice (see, for example, the Resolutions of the FAS SZO dated February 27, 2010 in case N A56-25535 / 2009, FAS DVO dated November 13, 2008 N F03-5002 / 2008, FAS PO dated 08.14.2008 in case N A06-187 / 2008-21, FAS ZSO dated 04.01.2008 N F04-1548 / 2008 (1783-A03-24), Determination of the Supreme Arbitration Court of the Russian Federation dated 05.30.2007 N 5933/07).

If the taxpayer is not ready to enter into litigation with the tax inspectorate, in order to avoid problems associated with the address, or rather, with a mismatch between the legal and actual addresses, he sometimes resorts to the most harmless method in this case - he registers a separate subdivision at his actual location, for example, at the address of a rented office.

Note. Arbitration practice shows that the mismatch of addresses is not a violation of a fatal nature.

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

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

However, over the past six months, there have been significant changes regarding separate subdivisions, in particular, in the procedure for registering organizations with tax authorities at the location of their separate subdivisions.

Changes that have already taken place

The first step was the entry into force on March 10, 2010 of the Procedure for registration, deregistration with the tax authorities of Russian organizations at the location of their separate subdivisions<2>(hereinafter - the Order). The named Procedure provides for the possibility of registration with the tax authorities of an organization at the location of its branch (representative office) on the basis of an application for registration, which is submitted by the organization to the registering tax authority simultaneously with an application for amendments to founding documents legal entity in relation to the respective branch (representative office). It should be noted that previously there was no single document regulating the procedure for registration (and deregistration) of separate divisions, there were only scattered regulations that approved the forms of documents used when registering such divisions in certain cases, yes, explanations of officials on this matter.

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

Then in the Letter dated 16.03.2010 N МН-22-6/ [email protected] The Federal Tax Service explained the algorithm and features of the implementation by the tax authorities of certain provisions of the named Procedure, taking into account the currently operating software. In addition, by Order of the Federal Tax Service of Russia dated March 24, 2010 N MM-7-6 / [email protected] a form was approved for reporting an organization on the choice of a tax authority for registration of several of its separate subdivisions located in the same municipality in the territories under the jurisdiction of different tax authorities.

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

What is the difference between a branch and a separate division

3 art. 14.25 of the Code of Administrative Offenses of the Russian Federation).

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

The changes you've been waiting for

Changes to Art.

Art. 23, 83, 84 of the Tax Code of the Russian Federation, introduced by the Federal Law of July 27, 2010 N 229-FZ<3>, should be regarded primarily as the fulfillment by the Ministry of Finance of its promises.

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

<3>The text of the Law and the commentary to it, see the journal "Acts and comments for an accountant", N N 16, 17, 2010.

According to the new wording of para. 3 p. 2 art. 23 of the Tax Code of the Russian Federation, the taxpayer is obliged (as it was before) to report on all separate divisions of the organization created on the territory of the Russian Federation (with the exception of branches and representative offices). This must be done, as before, within a month. The taxpayer is also required to making changes to information previously reported to the tax authority about such divisions. Legislators set aside a three-day period for its implementation.

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

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

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

So, from a literal reading of paragraphs. 3 p. 2 art. 23 of the Tax Code of the Russian Federation (in the new edition) it follows that the list changes to information about a separate subdivision, not specified. At the same time, the change of its location (or change of address), in the opinion of the author, fully corresponds to the sign changes, especially since paragraph 4 of Art. 84 of the Tax Code of the Russian Federation (in the new edition) directly states: in the case of change of location separate division of the organization deregistration is carried out by the tax authority in which the organization was registered. And the tax authorities are obliged to do this within five days from the date of receipt of the message submitted (sent) by the Russian organization in accordance with paragraph 2 of Art. 23 of the Tax Code of the Russian Federation (which corresponds to paragraph 7 of the named article). Registration organizations in the tax authority at the new location of the separate subdivision is carried out on the basis of documents received from the tax authority at the former location of the separate subdivision of the organization.

* * *

Thus, taking into account the amendments made to the Tax Code, we can conclude that the procedure for submitting to the tax authority information about the change of address of a separate subdivision is regulated. True, it will be valid from the moment the above changes come into force, that is, from 09/02/2010<4>. It can be argued that the need to close and open a separate subdivision in connection with the change of its location, which the controllers had previously insisted on, has disappeared.

<4>In accordance with Art. 10 of Federal Law N 229-FZ, this document enters into force one month after the date of official publication (with the exception of certain provisions that enter into force on other dates). The document was published in Russian newspaper", N 169, 08/02/2010.

O.P. Grishina

Journal Expert

"Actual issues of accounting

and taxation"

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

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

Moreover, the subdivision will be recognized as separate, regardless of whether its creation is reflected or not reflected in the constituent or other organizational and administrative documents of the organization, and on the powers vested in the specified subdivision (clause 2, article 11 of the Tax Code of the Russian Federation).

When a separate division is considered created

A separate subdivision characterizes two features:

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

Let's analyze these signs in more detail.

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

Workplace - a place where an employee must be or where he needs to arrive in connection with his work, and which is directly or indirectly under the control of the employer (Article 209 of the Labor Code of the Russian Federation).
For example, in recent times so-called “virtual offices” are becoming increasingly popular, when employees of an organization work remotely, that is, at home, on home computers, etc. Accordingly, the employee's apartment, his home computer are not under the control of the employer, whether direct or indirect, and therefore the creation of a separate division does not occur.

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

According to the Ministry of Finance, each case of the potential creation of a separate subdivision must be considered separately. Thus, the specialists of the financial department explained that in order to resolve the issue of the presence or absence of signs of a separate division of the organization, the essential terms of the contracts (rent, contract, provision of services or others) concluded between the organization and its counterparty, the nature of the relationship between the organization and its employees should be taken into account , as well as other actual circumstances of the organization's activities outside its location (letter of the Ministry of Finance of Russia dated February 18, 2010 N 03-02-07 / 1-67).

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

Sign two. The Tax Code does not define territorial isolation. However, in our opinion, a subdivision will be considered territorially isolated if the address of its location differs from the address of the parent organization's location specified in the founding documents.

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

Separate subdivision, branch, representative office

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

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

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

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

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

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

Registration or notice?

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

And if a separate subdivision is created, but no activity is carried out through it? If we interpret this norm literally, then while activities are not carried out through a separate subdivision, it is not necessary to apply for registration. However, if, for example, two months after the creation of a separate subdivision, the organization begins to conduct business through it, then it will need to be registered. It will be impossible to do this without violating the established deadline in the case under consideration. So right decision will apply for registration within a month from the date of creation of a separate subdivision, even if activities through it are not yet carried out.

In addition to filing an application for registration, the organization is obliged in all cases, within a month from the date of the creation of a separate subdivision, to report this to the tax authority at the location of the organization. The closure of a separate subdivision must also be reported to the tax authority within a month (subclause 3, clause 2, article 23 of the Tax Code of the Russian Federation). The message is submitted to the tax authority in the form N C-09-3, approved by order of the Federal Tax Service of Russia dated 21.04.2009 N MM-7-6 / [email protected](clause 7, article 23 of the Tax Code of the Russian Federation).

If the organization has created a separate subdivision in the territory municipality, on which the organization itself is located, then it is not necessary to re-register (clause 1 of article 83 of the Tax Code of the Russian Federation). In this case, it will only be necessary to submit a notification about the opening of a separate subdivision in the manner prescribed by subparagraph 3 of paragraph 2 of Article 23 of the Tax Code of the Russian Federation.

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

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

"Legal" and "actual" addresses

Now such a philistine concept as the legal address of an organization is quite common. Speaking of the legal address, they mean the address of the location of the organization.

The location of the organization is determined by the place of its state registration. And the state registration of an organization is carried out at the location of its permanent executive body, and in the absence of a permanent executive body, another body or person entitled to act on behalf of the organization without a power of attorney (clause 2, article 54 of the Civil Code of the Russian Federation).

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

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

What is the responsibility under?

There are two articles in the Tax Code of the Russian Federation related to registration.
Article 116 of the Tax Code of the Russian Federation provides for a fine of 5,000 rubles for violation of the deadline for filing an application for tax registration. If the deadline is violated by more than 90 days, then the fine will double and amount to 10,000 rubles.
Let us make a reservation right away that the Tax Code does not establish liability for failure to notify the tax authority of the creation or closure of a separate subdivision.
Article 117 of the Tax Code of the Russian Federation provides for liability for conducting activities without registration with a tax authority.

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

There is an opinion that the objective side of Article 117 of the Tax Code of the Russian Federation covers only the conduct of activities without registration in general, and not a separate division. That is, if an organization is registered with the tax authority, then it is impossible to hold it accountable for conducting activities through a separate subdivision without registering with the tax authority at its location (Decree of the Federal Antimonopoly Service of the Moscow District dated June 20, 2007 N KA-A40 / 5386 -07, dated 05.10.2007 N KA-A40 / 10377-07, FAS of the North-Western District dated 04.29.2004 N A66-6713-03).

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

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

As strange as it may sound, you can create it unintentionally. Such cases are quite common in practice. Often this "unintentional" action entails a number of negative consequences. Let's consider further what it is.

Definition

A separate structural subdivision of a legal entity is an enterprise opened by the main organization and meeting a number of requirements enshrined in legislation. In order for a company to be recognized in this status, a number of conditions must be met. First of all, such an enterprise should have stationary-type workplaces, properly equipped. They will be considered created if they are formed for a period exceeding a month. Another requirement is territorial isolation from the main organization.

Nuances

It is worth noting that it will be considered as such, regardless of whether the process of its formation is reflected in the constituent or other organizational and administrative documentation or not. If it has started work, then the requirements of the law must be observed. For recognition, powers and will not matter.

Workplace

Its concept is revealed in the 209th article of the Labor Code. A worker is a place where a citizen arrives to carry out his production activities. At the same time, it should be indirectly or directly controlled by the employer. Recently, the so-called "remote (virtual) offices" have become very common. Employees of many enterprises work at home, using their technical means (computers in particular).

The living space of these citizens, of course, cannot be controlled by the tenant either directly or even indirectly. Accordingly, in this case, separate subdivision of a legal entity is not created. Another very important thing to consider important fact. The workplace must be created by the legal entity itself. It does not matter whether the premises in which it will be formed will be rented or owned. For example, a cleaning company sends an employee to the client's office for daily cleaning for two months. In this case, there will be no division, since the premises or even a separate part of it do not belong to the tenant. In this situation, the employee is considered to be on a business trip.

Opinion of the Ministry of Finance

The Ministry believes that consideration of each case of the potential establishment of a unit must be carried out taking into account specific circumstances and factors. Experts explain that the decision on the absence or presence of signs of such an enterprise should be carried out taking into account the essential terms of the contracts (provision of services, contracts, leases, etc.) that were concluded between the organization and the counterparty. All actual circumstances related to the activities carried out should be taken into account. Russian legal entities. Separate divisions an organization can have many. Legislation do not contain any restrictions in this regard.

Territorial isolation

This is the second sign that an enterprise opened by the main organization must comply with. There is no clear definition in the legislation. According to experts, territorial isolation implies the location of a legal entity outside the place of the main organization. In this case, the main address of the latter must be indicated in the constituent documentation.

Classification

What can be separate divisions? Branches and representative offices of legal entities- two main types of enterprises opened by the main organization. Each of them has a number of features. A representative office is a separate subdivision of a legal entity, which operates in a territory other than that specified in the founding documents of the parent organization, expresses its interests and ensures their protection. The concept is revealed in the 55th article of the Civil Code (clause 1). A branch is a separate subdivision of a legal entity, which operates in a territory different from that which, again, is indicated in the constituent documents of the parent organization and implements all of its tasks or some specific part of them. The definition is present in the above article in paragraph 2. Thus, a branch is a separate subdivision of a legal entity that performs a fairly large amount of tasks.

Requirements

The legislation does not prescribe the mandatory development of provisions on the basis of which separate subdivisions of a legal entity. The form of this normative act, respectively, is not included in the number of unified ones. However, in practice, developed model provisions that the organization can follow. It should also be noted that information about the created separate divisions must be present in the constituent documentation of the parent company. The corresponding requirement is established in paragraph 3 of the 55th article of the Civil Code. The norms allow the operation of units without a leader.

Important point

It should be emphasized that the activities of the parent organization cannot be an independent subject of tax and civil law relations. They are responsible for making mandatory budget allocations. But in this case we are talking about the activities of the parent organization through its separate division.

Registration

The law provides for a procedure, the implementation of which ensures the recognition of the legitimacy of the activities carried out by separate subdivision of a legal entity. Registration is made in the tax authority at the address of the established enterprise. In this case, registration must be carried out within a month from the date of formation of the enterprise. The corresponding instruction is contained in Article 83 of the Tax Code (clause 4).

Features of the procedure

In practice, it happens that a separate subdivision of a legal entity located outside the place activities of the parent organization, did not start work within the first month from the moment of its creation. In this case, there is no need to file an application with the FTS. If, after 2 months, the enterprise nevertheless began work, then it is necessary to register without fail. At the same time, accordingly, it will not work to do this without violating the instructions of the Tax Code. Experts still recommend registering the unit within the legal period, even if it does not work in the first month. Formal compliance with the procedure will avoid many problems in the future.

Notification

In addition to registering a unit at its location, the parent organization is obliged to notify the tax office at its location about the establishment of the enterprise. A similar notification is required in the event of the closing of the company. In the latter case, the notice must be sent within a month. The message is formatted according to f. C-09-3.

Compliance with Multiple Businesses

If an organization creates several subdivisions within the municipality in which it operates, then there is no need to re-register. The corresponding provision is enshrined in Article 83 in paragraph 1. In such a situation, the parent company is only obliged to send a message to the Federal Tax Service about the creation of a unit. Notification is carried out according to the rules of the 23rd article (clause 3).

If several subdivisions are located in one MO, but in the territories under the jurisdiction of different inspectorates, registration can be carried out by the control body at the location of one of them. It is determined by the parent company. Having made a decision, the organization sends a letter to the inspection. Accordingly, it is sent to the inspection, which is located at the address of the selected enterprise. The notice is issued according to f. KND No. 1111051.

Actual and legal address

Quite often, in practice, these two concepts are identified. Legal address refers to the location of the organization. Its definition is regulated by the Civil Code, article 54 (clause 2): it is established that the address of the enterprise location corresponds to the registration address. This procedure is carried out on the territory where the permanent executive body of the company is located. If it is missing, the registration address is the same as that of another person or structure that has the right to act on behalf of the enterprise without a power of attorney.

The actual address is the address where the company conducts its business. Some territorial tax inspectorates express the following opinion on this issue. They believe that the subdivision works at the actual address, and the head organization is located at the legal address.

Many experts believe this approach is wrong. As the legislation indicates, one of the key features of a subdivision is its territorial isolation. If the enterprise operates at an address that differs from that recorded in the founding documents, it does not meet this criterion. The fact is that in this case there is no one at the legal address, respectively, there is no parent organization. And her presence required condition default.

Responsibility

If about a separate subdivision of a legal entity located at an address different from that at which the head enterprise operates, is not registered in the prescribed manner, the Tax Code provides different types sanctions. First of all, for violating the deadlines, the perpetrators face a fine of up to 5 thousand rubles. (Art. 116). The penalty will be doubled if the delay is more than 90 days. At the same time, it should be said that sanctions for failure to notify the Federal Tax Service of the closure or creation of an NK unit are not provided.

Article 117 establishes responsibility for work without registration. The amount of monetary penalties under this norm is much larger. Thus, Article 117 establishes that a fine of 10% of the profits received in the course of such work is charged for conducting activities in violation of the registration rules. In this case, the amount of recovery cannot be less than 20 thousand rubles. If the activity was carried out for more than 3 months, then the amount of the fine is doubled. Article 116 is applied if the parent organization did not send an application for registration within the prescribed period, and the 117th norm - if the control body revealed the fact of carrying out activities without registration.

The specifics of judicial practice

There is an opinion that Article 117 applies to conducting activities without registration in general, and not specifically to subdivisions. In other words, if an enterprise is registered, then it is impossible to impose sanctions on it for working through another company opened by it. Meanwhile, not all court instances share this opinion. In order to avoid problems when expanding a business, experts recommend that you comply with all legal requirements.

FIU

Registration in the fund is subject to units that have a dedicated balance, settlement account and pay salaries to employees. Registration is carried out on the basis of the Unified State Register of Legal Entities. The tax inspectorate, within five days from the date of receipt of the notification of the formation of the unit, sends them to the PFR department at the location of the OP. The Fund, in turn, sends 2 copies of the notice to the insured. One of them must be transferred to the FIU at the address of the parent organization within ten days.

FSS

To register in this fund, the unit must also have an independent balance sheet, employees to whom it pays salaries, as well as a current account. Registration is carried out at the territorial branch of the FSS at the address of the OP. From the date of creation of the subdivision, the parent company, within thirty days, submits an application and copies of:

1. Holy Island on state registration.
2. Notifications of registration with the Federal Tax Service (separately for the OP and the parent organization).
3. Documents confirming the creation of the unit. This may be a charter, which contains the relevant information, a power of attorney provided to the head of the EP.
4. Information letter of the statistics authority.
5. Notifications of registration with the FSS of the main organization.
6. Certificates from the bank about the account, if they were open at the time of applying to the fund.

personal income tax

The tax is calculated on the basis of the amounts paid to employees of the relevant departments. Personal income tax is deducted at the address of the location of each enterprise opened by the parent organization. It is necessary to submit reports to the inspection at the accounting address of the EP. In some cases, an employee enters into an agreement with the parent organization, and conducts labor activity in a subdivision. In such situations, personal income tax is paid to the IFTS at the location of the OP. If the registration of the unit with the tax authority was not made at the beginning of the month, the transfer of tax is carried out in proportion to the share of the salary issued to the employee during the period of employment. It should be noted that the payment of personal income tax, as well as the submission of reports, is made only when the OP has an independent balance sheet and a bank account. Otherwise, this responsibility rests with the parent company. It carries out the deduction of personal income tax and filing tax reporting to the inspectorate in which it is registered.

Insurance premiums

They are calculated based on the salaries of employees of the department. Payment of contributions is made to the budget of the region in which the EP is located. Reporting must be submitted to the FSS branch or the PFR department, where the separate subdivision was registered. When expanding a business, it is necessary to take into account the obligations that the legislation imposes on the enterprise. Among them is the timely deduction of taxes and contributions to funds. Violation of the regulations will result in liability.

In civil law, representative offices and branches are classified as separate subdivisions (Article 55 of the Civil Code of the Russian Federation). At the same time, the former represent the interests of the legal entity and protect them. But the branches perform the functions (or part of them) of a legal entity, including the functions of representation. Moreover, neither one nor the other is actually a legal entity. At the same time, they are endowed with property by the legal entity that created them and act on the basis of approved provisions. Keep in mind that representative offices and branches must be indicated in the constituent documents of the legal entity that created them.

If we consider tax legislation, then a separate subdivision of an organization is any subdivision territorially isolated from it, at the location of which stationary workplaces are equipped (clause 2, article 11 of the Tax Code of the Russian Federation). In this case, the recognition of a separate subdivision of the organization is carried out regardless of whether its creation is reflected or not reflected in the constituent or other documents of the organization. In turn, the workplace is considered stationary if it is created for a period of more than one month.

As you can see, the Tax Code contains two necessary criteria that distinguish a separate division of an organization:

• territorial isolation;
• availability of permanent jobs.

Stationary workplaces

If the organization does not create equipped workplaces for its employees or the duration of work in one locality lasts no more than one month, then the company's activities do not lead to the creation of separate divisions.

The financiers, in a letter dated 11.12.2007 No. 03-02-07 / 1-478, said that under the equipment of a stationary workplace they mean the creation of conditions for the performance of labor duties, as well as the very performance of such duties. In this case, officials referred to arbitration. Another clarification of officials states that the timing of business trips of specific employees sent to carry out electrical work does not change the time the company operates in the region where the relevant facility is located (letter of the Ministry of Finance dated 04.05.2007 No. 03-02-07 / 1-216 ).

Quite indicative is the example of enterprises providing security services. In this case, in order to resolve the issue of the presence or absence of a separate subdivision, financiers advise taking into account the content of the contract for the provision of such services, the actual nature of the relationship between the private security company and its customer, and other circumstances of the company's activities (letter of the Ministry of Finance dated 04.05.2007 No. 03- 02-07/1-214). At the same time, officials previously believed that if security posts were created at the place of provision of services that have the characteristics established by Article 11 of the Tax Code, then the company is obliged to register as a taxpayer with the tax authority at each location (letters of the Ministry of Finance dated 18.01.2002 . No. 04-01-10 / 1-5 and UMNS for the city of Moscow dated January 29, 2003 No. 11-14 / 5523).

In our opinion, an organization that sends its employees to perform work, in principle, does not equip stationary workplaces. The fact is that the workplace is the place where the employee must be or where he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer (Article 209 of the Labor Code of the Russian Federation). At the same time, employees on a business trip are subject to the working hours and rest time of those enterprises to which they are seconded (clause 8 of the Instruction of the USSR Ministry of Finance, the USSR State Labor Committee and the All-Union Central Council of Trade Unions dated April 7, 1988 No. 62 “On business trips within THE USSR"). It turns out that a company that sends its employees on a business trip is not able to control the workplaces equipped by the counterparty. The creation of a workplace is possible only when the organization has the appropriate rights (ownership or use right) to the object. Moreover, the lease agreement is not evidence that unconditionally confirms the fact of the creation of stationary jobs (Resolution of the Federal Antimonopoly Service of the North-Western District of October 15, 2007 No. A56-40913 / 2006).

Territorial isolation

Back in 2004, financiers answered the question of what constitutes territorial isolation. So, a unit located on a separate territory, different from the one on which the organization itself is located, should be considered territorially isolated. We are talking about a different address that is not indicated in the constituent documents as the location of the taxpayer himself (letters of the Ministry of Finance dated December 22, 2004 No. 03-03-01-04 / 1/184 and dated September 22, 2004 No. 03-03-01 -04/1/55). In turn, in the letter of the Ministry of Finance dated April 21, 2008 No. 03-02-07 / 2-73, it is specified that the unit is territorially isolated from the parent organization if it is located in the territory where tax accounting and tax control is carried out inspection other than the one in which the organization is registered as a taxpayer.

We remind you that, in accordance with paragraph 9 of Article 83 of the Tax Code, if organizations have difficulties in determining the place of registration, the decision based on the data provided by the company is taken by the Federal Tax Service (letter of the Ministry of Finance of July 10, 2008 No. 03-02-07 / 1-271) .

Registration with the tax office

The organization is obliged to register with the tax authority at the location of each of its separate subdivisions (clause 1, article 83 of the Tax Code of the Russian Federation). However, there is an exception to this rule. Here we are talking about a situation where the specified company is already registered with the tax authority, on the territory of the municipality of which this separate subdivision was created (clause 4, article 83 of the Tax Code of the Russian Federation).

An application for registration must be submitted within one month from the date of creation of a separate subdivision to the tax authority at its location (clause 4, article 83 of the Tax Code of the Russian Federation). In this case, you should use the form No. 1-2-Accounting "Application for registration Russian organization in the tax authority at the location of its separate subdivision on the territory of the Russian Federation”, approved by order of the Federal Tax Service of Russia dated December 01, 2006 No. SAE-3-09 / [email protected](hereinafter - Order No. SAE-3-09/ [email protected]). Moreover, the tax authorities finally agreed to accept applications signed by authorized representatives of organizations. True, in this case, you will have to attach a copy of a properly executed power of attorney, according to which this person acts on behalf of the organization (letter of the Federal Tax Service of Russia dated November 20, 2007 No. SK-6-09 / [email protected]). Simultaneously with the application, the organization submits copies (duly certified) of the certificate of registration with the tax authority of the organization at its location and documents confirming the creation of a separate subdivision (clause 1, article 84 of the Tax Code of the Russian Federation).

In turn, 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 documents (clause 2, article 84 of the Tax Code of the Russian Federation). The result will be a notification - form No. 1-3-Accounting "Notice of registration of a Russian organization with a tax authority on the territory of the Russian Federation", approved by order No. SAE-3-09 of 01.12.2006 / [email protected]

Keep in mind that organizations are required to report in writing to the tax authority at their location about all separate subdivisions created in the territory of the Russian Federation within a month (subclause 3, clause 2, article 23 of the Tax Code of the Russian Federation). In this case, we are talking about form No. C-09-3 “Notice on the creation (closing) of a separate subdivision on the territory of the Russian Federation”, approved by order of the Federal Tax Service of the Russian Federation dated January 17, 2008 No. MM-3-09 / [email protected]"On approval of the forms for reporting by taxpayers of information provided for in paragraphs 2, 3 of Article 23 of the Tax Code of the Russian Federation." And this rule concerns those companies that were already registered with the tax authority, on the territory of the municipality of which a separate subdivision was created (letters of the Ministry of Finance dated 11.06.2008 No. 03-01-15 / 7-227, dated 07.03.2008 No. 03 -02-07/1-90, dated March 6, 2008 No. 03-02-07/1-84). Thus, the registration of an organization at the location of such a separate subdivision will be carried out by the tax inspectorate on the basis of a message about its creation sent by the organization to the inspectorate at its location (letters of the Ministry of Finance dated May 24, 2007 No. 03-02-07 / 1- 253, dated April 18, 2007 No. 03-02-07 / 1-187).

Keep in mind that if the location of a separate unit changes, the organization must follow the procedure for closing and opening a separate unit. Officials explain this by the fact that the legislation does not establish a procedure for accounting for separate divisions of organizations in tax authorities due to a change in their location (letter of the Ministry of Finance of the Russian Federation dated July 14, 2008 No. 03-02-07 / 1-278).

Registration in funds

Pension Fund

Separate subdivisions that have a separate balance sheet, current account and accrue payments and other remuneration in favor of individuals(Clause 6 of the Procedure for Registration with Territorial Authorities pension fund RF of policyholders making payments to individuals, approved by the Resolution of the Board of the Pension Fund of the Russian Federation dated July 19, 2004 No. 97p, hereinafter referred to as the Registration Procedure in the Pension Fund).

To do this, the company must contact the territorial body of the Pension Fund of the Russian Federation at the location of the separate subdivision. Registration is carried out on the basis of information contained in the Unified State Register of Taxpayers and submitted by tax authorities to the insurer's body (PFR department) at the location of the separate subdivision no later than 5 days from the date of receipt of the specified information. Further, the organization is sent a corresponding notice in 2 copies, one of which must be submitted within 10 days to the territorial body of the PFR at the location of the enterprise (clause 11 of the Procedure for registration with the PFR).

Social Insurance Fund

Registration as insurers is subject to legal entities at the location of their separate divisions, having a separate balance sheet, current account and accruing payments and other remuneration in favor of individuals (subclause 1, clause 1 of the Procedure for registration as insurers of legal entities at the location of separate divisions and individuals in the executive bodies of the FSS of Russia, approved by the resolution of the FSS of March 23, 2004 No. 27, hereinafter referred to as the Procedure for registration with the FSS).

In this case, registration takes place at the regional branch of the Fund (branch of the regional branch of the Fund) at the location of the separate subdivision (clause 3 of the Registration Procedure with the FSS). The basis is an application for registration as an insurer, submitted within 30 days from the date of creation of a separate subdivision (Article 6 of the Federal Law of July 24, 1998 No. 125-ФЗ “On Compulsory Social Insurance against Industrial Accidents and Occupational Diseases” ). The application form can be viewed in Appendix No. 1 to the Procedure for Registration with the FSS.

Also, for registration, you will need copies of the following documents (clause 9 of the Registration Procedure with the FSS):

• certificate of state registration of a legal entity;
• certificate of registration of the legal entity with the tax office;
• notification of registration with the tax authority at the location of the separate subdivision;
• documents confirming the creation of a separate subdivision (charter of a legal entity containing information about this subdivision; regulation on a separate subdivision; powers 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 branch of the Fund at its location;
• information mail state statistics service, containing information about the types economic activity carried out by a legal entity at the location of a separate subdivision.

If at the time of filing the application for registration, bank accounts have already been opened with a separate division, then you will also have to submit a certificate from a credit institution about the specified account (clause 11 of the Registration Procedure for the FSS).

When registering in the regional branches of the Fund, the branch sends the documents submitted by the insured to the regional branch of the Fund within two days. In turn, the structural subdivision of the regional branch of the Fund, within no more than five working days from the date of receipt of the documents, registers the legal entity at the location of the separate subdivision (clause 14 of the Registration Procedure for the FSS). The insured shall be sent an appropriate notice of registration and a notice of the amount of insurance premiums for compulsory social insurance against accidents at work and occupational diseases.

Compulsory Medical Insurance Fund

The organization is also obliged to register as an insurer in the territorial fund at the location of each separate subdivision (clause 5 of the Rules for the registration of policyholders in the territorial fund of compulsory health insurance with compulsory health insurance, approved by Government Decree No. 570 of September 15, 2005, hereinafter referred to as the Registration Rules in the TFOMS).

The basis for registration is an application drawn up in the form specified in Appendix No. 1 to the Registration Rules in the TFOMS. This application is submitted to the territorial fund within 30 days from the date of creation of a separate subdivision.

Also, for registration, simultaneously with the application, copies (certified by a notary) of the following documents are submitted:

• documents confirming the creation of a separate subdivision (constituent documents containing information on the creation of a separate subdivision, or an order (order) on the creation of a separate subdivision and a regulation on a separate subdivision);
• documents confirming the fulfillment by the organization of the obligation to pay tax credited to the compulsory health insurance funds;
• certificate of registration of the organization as an insurer in the territorial fund at its location.