If the organization has a separate subdivision. Separate subdivisions

Tax authorities are trying to fit any activity of the company under the concept of a "separate division". Let's take a closer look at what is a separate unit and what is not. And also when you need to register, and what the penalty for violations is.

What is a separate subdivision

Concept "separate subdivision" organization is given in paragraph 2 of Article 11 of the Tax Code of the Russian Federation. So, a separate subdivision of an organization is any subdivision geographically separate from it, at the location of which stationary workplaces are equipped. A workplace is considered stationary if it is created for a period of more than one month.

From this definition, it can be concluded that an integral part of an organization is recognized as a separate subdivision in the presence of the following features:

• territorial location outside the location of the organization. That is, the address of the structural unit must differ from the address of the organization specified in the constituent documents;
• equipment at the location of a separate division of workplaces for a period of more than one month.

There is no concept of a workplace in tax legislation. Therefore, the definition given in other branches of legislation should be used. This is stated in paragraph 1 of Article 11 of the Tax Code of the Russian Federation.

The concept of a workplace is contained in article 209 of the Labor Code. This is the place where the employee must be or where he must arrive in connection with his work and which is directly or indirectly under the control of the employer.

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

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

Articles 15 and 16 of the Labor Code of the Russian Federation say that an employee and an employer are persons who, on the basis of an employment contract concluded between them, entered into labor relations. In other words, the employer can only be the organization with which the employee has entered into an employment contract.

Hence the conclusion follows: stationary jobs, which are referred to in paragraph 2 of Article 11 of the Tax Code of the Russian Federation, are jobs created for a period of more than one month, equipped by an organization for their workers. That is, at the location of a separate subdivision, employees of the organization must perform their labor duties. The equipment of workplaces for employees of another organization does not lead to the formation of a separate unit.

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

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

Example 1

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

In this case, the "Condor" does not have a separate subdivision in Moscow.

Consider the case when an organization rents out of place of its location jobs created by another organization for its employees. In this situation, there is a reason for classifying these jobs as part of the tenant organization. Thus, the entity will have to recognize the emergence of a separate business unit.

And what if individuals work outside the location of the organization, with whom the organization has drawn up not labor, but civil law contracts (for example, a contract for the provision of services)? In this case, for the purposes of the Tax Code of the Russian Federation, one cannot speak of the creation of a separate subdivision. There are no labor relations with individuals, which means that they cannot be called employees.

However, be careful: civil contracts often hide ordinary labor relations. Therefore, such contracts are the object of close scrutiny during inspections carried out by the labor inspectorate.

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

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

However, this does not mean that the above provision of the Code requires the presence of two or more jobs. The condition for the creation of stationary workplaces established by Article 11 of the Code will be met even if only one workplace is equipped.

As a result, if only one workplace is created in a geographically separate structural unit, such a unit is considered created for tax purposes. For example, at the location of currency exchange offices, as a rule, one workplace is created. At the same time, banks recognize these exchange offices as separate divisions.

Example 2

Atlant LLC is registered in Omsk. The company acquired production facilities in the Tomsk region that were unusable and required overhaul. A security guard was hired to guard the facility for the duration of the renovation.

In this case, despite the fact that only one stationary workplace has been created, Atlant has a separate division in the Tomsk region.

When creating a separate division, the company issues such an order.

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

If you carefully read the definition of the concept given in paragraph 2 of Article 11 of the Tax Code of the Russian Federation "Separate subdivisions", you can see one interesting detail. It is defined through the concept of "territorially separate from the organization of the unit." The latter should be interpreted in the same meaning as it is used in other branches of law (clause 1 of article 11 of the Code).

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 of article 55 of the Civil Code of the Russian Federation).

At the same time, highlighting only two types of separate subdivisions of a legal entity, the Civil Code of the Russian Federation does not restrict a legal entity in the creation of separate subdivisions of other types. Thus, the Civil Code of the Russian Federation does not impose on a legal entity that has created separate divisions in forms other 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 from the point of view of tax legislation.

The creation of branches and representative offices is almost always associated with the equipment of stationary workstations. Thus, in the overwhelming majority of cases, branches and representative offices for tax purposes are separate subdivisions. But the opposite is not true: separate divisions are not only branches and representative offices.

A separate subdivision is considered created regardless of the implementation of the registration procedure provided for by paragraph 3 of Article 55 of the Civil Code of the Russian Federation for branches and representative offices. This is stated in paragraph 2 of Article 11 of the Tax Code of the Russian Federation. In particular, in order to be considered created, a separate subdivision does not have to be indicated in the constituent documents.

Thus, in order to be recognized as such from the point of view of tax legislation, a separate subdivision must have the characteristics established by paragraph 2 of Article 11 of the Code. It can be created both in the form of a representative office or a branch, or in another form that does not contradict the legislation of the Russian Federation.

Example 3

Let's use the conditions of example 1. Suppose that LLC "Kondor" has opened a representative office at the location of the acquired office. Employees of the society work in it.

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

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

The creation of a separate subdivision requires the organization to fulfill certain responsibilities. In particular, it must register with the tax authority at the location of each separate subdivision. This requirement is enshrined in paragraph 1 of Article 83 of the Tax Code of the Russian Federation. An application for registration is submitted within a month after the creation of a separate subdivision.

When is a unit considered established? When stationary workplaces are equipped in it. Such a date can be, for example, the day when the employee started his job at the location of the unit.

As you know, in addition to registering at the location of separate divisions, an organization must register with tax inspectorates at the location of its real estate and vehicles that are subject to taxation. Therefore, if the organization is already registered with the tax inspectorate at the location of the separate subdivision, you do not need to re-register.

Likewise, the liquidation of units should be reported. An organization can be registered with several tax offices. In this case, she must inform all tax inspectorates where she is registered about the creation of a separate subdivision.

Example 4

ZAO Topol is registered in Moscow and is registered only with the Moscow tax inspectorate. In 2013, it acquired a store in St. Petersburg and leased it out. Since the real estate was acquired, the company registered with the tax authorities in St. Petersburg. On January 1, 2014, the CJSC terminated the lease agreement and decided to carry out trading activities on its own. For this, workers were recruited to the store.

In this case, a separate subdivision is considered created from January 1, 2014. However, the organization is not obliged to re-register with tax authorities in St. Petersburg. It only has to inform the tax inspectorates in Moscow and St. Petersburg about the creation of a separate subdivision.

Sanctions for violations

If an organization submits an application for tax registration at the location of a separate subdivision in violation of the monthly period allotted for this, it faces a fine. If the organization is late with the submission of the application, then it faces a fine of 10,000 rubles. This is stated in article 116 of the Tax Code of the Russian Federation.

If the organization not only delays the filing of the application, but also starts activities at the location of the separate subdivision, liability will arise in accordance with paragraph 2 of Article 116 of the Code. The fine will be calculated as a share of the income received as a result of such activities (10%). The minimum fine is 40,000 rubles.

Sanctions threaten not only the organization, but also its officials who committed the listed violations. For a delay in filing an application, a fine is charged from 500 to 1000 rubles, and if at this time a separate division was conducting activities - from 2000 to 3000 rubles. This is stated in article 15.3 of the Code of Administrative Offenses of the Russian Federation.

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

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

A separate subdivision is part of a large organization, the main task of which is to represent the legitimate interests of the company in the available territory. It is located far from the main office of the company (for example, in another city).

Full accountability and subordination is carried out the leadership of the central office of the organization, with no exceptions. Work without control from the head office is not allowed, since the responsibility for actions (or inaction) is borne by the central office of the organization.

There are many features, but not all of them will necessarily be present in fact. Main features:

1. Distance from the main office of the company- the first and main distinguishing feature. Distance is defined as being located more than a kilometer from the head office. Most often, such offices are located in other cities or districts of the region.
2. Availability of official jobs- in order for a separate unit to be considered created (open), it is necessary to have official jobs. A workplace is understood as a room (place) in which an employee needs to be in order to carry out production functions. They conclude an employment contract with the employee.
3. Registration with the Federal Tax Service, in all regions in which separate subdivisions are located.
4. Registration with the Pension Fund of the Russian Federation, in all regions.
5. No need to enter data on the created (or planned) regional division in the constituent documents of the company (charter, internal regulations, orders).

From what moment is it considered created

The issue of calculating the creation period is controversial... On the one hand, it is impossible to accurately determine the date, since there is no legislative need to amend the constituent documents. On the other hand, the lease / purchase of office space, in which the main activity will be carried out, is also not a basis for considering it to be created.

According to the Labor Code of the Russian Federation, for the recognition of the fact of the creation of a company, it is necessary to have jobs formed on it. The work contract concluded between the employer and the employee must be of the duration more than one calendar month... Otherwise, the creation is not counted, and the person with whom the contract is concluded is considered not an employee of the organization, but a service provider.

If all the conditions are met, the date of creation is the date from which the first employee was officially hired for a period of more than one calendar month.

Varieties and forms

Separate subdivisions are divided into two categories- independent and dependent. The former have more powers, the latter have less, but it is not clear by what criteria they are divided.

Eligibility - the right to do or not to do an act that should ultimately benefit.

Independent- the type of representation, the staff of the management structure of which is the director. "Independence" means that a number of decisions at the regional level are made by the director without obtaining additional permits from the head office (alone).

Dependent (or less independent)- a representative office, the staff of the regional leadership of which does not provide for the position of director. It solves issues arising in the course of economic activities on the territory of the subject by directly reporting them to the head office. In response to this, he receives concrete action plan, which must be performed to get out of the situation.

A branch means a structure that is geographically remote from the central office, has a number of strict requirements when creating... In terms of functionality, it is engaged in the implementation of the same activities as the head office, with the only difference being in a different location.

Unlike a regional office, the process of creating a branch is much stricter, more requirements are imposed on the creation.

1. The process of organizing a branch is necessarily recorded in the statutory documents, internal acts of the organization.
2. To create a branch of an LLC, the obligatory consent of more than half of the shareholders is required. By the decision of the hired person, a branch is not created in the role of director.
3. In the case of organizing a branch, the appointment of a head at the place of regional base is mandatory. The work of a branch without a manager cannot be carried out, since he is in charge of the process of managing the branch personally through the power of attorney received from the management of the organization.

Jobs issue

A lot of people are employed in the work of the department, respectively, this organization is considered as additional jobs in the area in which it is registered and actually located. List of main positions:

1. HR department- chief, employee - in each department there is a need for testing and hiring additional personnel for work, this requires a personnel department.
2. Accounting department- chief accountant, accountant - it is not necessary to organize a department, since in some cases all financial activities go through the head office, as a result of which the presence of accounting on the spot does not make sense.
3. Client department- managers - is the main one, the task includes servicing the organization's clients, providing services. It is the most numerous.
4. Legal department- a lawyer, a lawyer - often occurs, because, according to the Code of Civil Procedure of the Russian Federation, the plaintiff has the right to file a claim at his place of residence, and not the legal address of the organization. If a claim is filed with the court, it is considered at the location of the plaintiff (in the region where the organization's separate office is located). To protect rights, a full-time local legal department is required.

When does it open

The question of opening arises in case of need to represent interests not at the location of the main office, but remotely.

No less often there is a need to provide services to clients in another region, which is not possible if there is only a central office. Also, the opening of a representative office occurs when the formation of a branch is inappropriate from the point of view of the organization's management.

Example: LLC "RemTorg" is engaged in the repair of refrigerators and appliances operating on a liquid cooler. The central office is located at: Russian Federation, Moscow, Volgogradskiy prospect, building 1, office 111. The address is legal. The company has a need to repair a refrigerator in the city of Volgograd.

A suitable master was found from Moscow using the Internet, a contract for the provision of repair services is concluded with him. After rendering the organization liked the work of the master, they extended the contract with him for six months. During the term, the employee's help was no longer needed, therefore, when the expiration date of the contract approached, he did not receive an extension.

At the end of the calendar year, representatives of the tax inspection arrived in the organization and imposed a fine on the company for opening without registering with the relevant authorities.

Is the tax inspectorate right in this situation? Definitely yes!

According to the Labor Code of the Russian Federation, the main criterion for creating a separate representative office is availability of workplaces remote from the head office... The workplace is created for a period of more than a calendar month. In this case, the agreement was concluded for a period of six months, as a result of which the tax inspectorate discovered a violation of the Tax Code of the Russian Federation in the actions of the organization and imposed a lawful punishment.

The video has an answer to the question when a separate division does not arise.

Liability measures

Speaking of responsibility and legal status, a separate division is not in the same place with the main organization. This is, first of all, a "support" department, which is charged with the responsibility of representing the interests of the organization, but not creating one's own interests and promoting them.

Only a branch has the right to duplicate the activities of a representative office.

In the event of a disputable situation, all correspondence and other law enforcement acts must be reported exclusively to the "top" management of the organization. Notification occurs by sending a letter not to the actual address, but to the legal address specified in the documents of the representative office.

A separate subdivision is not responsible, including property, except in cases where the property located in it belongs to an LLC. Due to bankruptcy, it can be confiscated and later sold.

All actions take place exclusively by power of attorney or by direct instructions from the head office, since the position of the head (director), as unnecessary, is not even created.

Taxes and reporting

After creation, sooner or later there is tax issue... Often, the management of a company cannot determine on whose behalf tax fees are paid - on behalf of the head office, from its legal address, or from a representative office, from the place of actual address.

The work of separate divisions is allowed without hiring accountants and keeping accounting records. In this case, all financial and other transactions are obligatory carried out through the main office, which at the end of the tax period is obliged to pay tax on its operations and on those that were carried out through it from the regional office.

If the tasks include a large volume of calculations and payments, then an accountant is hired to the staff, who maintains necessary documentation... At the end of the tax period, the accountant submits a declaration to the tax authority of the region in which the representative office is based.

Regardless of whether the head office pays taxes or a separate subdivision, tax registration is mandatory in the region in which it is actually located.

The procedure for registering a separate subdivision is presented in the video.

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 unit of a legal entity is an enterprise opened by the main organization and complying with a number of requirements established by law. 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 should be noted 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 started work, then the requirements of the law must be observed. For recognition, the powers of and will not matter.

Workplace

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

The living space of these citizens, of course, cannot be controlled by the employer either directly or even indirectly. Accordingly, in this case, about separate subdivision of a legal entity is not created. One more very important fact should be taken into account. 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 a client's office to perform daily cleaning for two months. In this case, there will be no creation of a subdivision, since the premises or even a separate part of it do not belong to the tenant. In this situation, the employee is considered a business trip.

Ministry of Finance opinion

The Ministry believes that consideration of each case of potential creation of a unit should 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 contracts (provision of services, contracts, leases, etc.) that were concluded between the organization and the counterparty. All factual circumstances associated with the activities carried out should be taken into account. Russian legal entities. Separate subdivisions an organization can have a lot. Legislative norms do not contain any restrictions in this regard.

Territorial isolation

This is the second characteristic that an enterprise opened by a parent organization must comply with. There is no clear definition of it in the legislation. According to experts, territorial isolation presupposes 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 subdivisions? 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 indicated in the constituent documents of the parent organization, expresses its interests and ensures their protection. The concept is disclosed 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 clause 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 the separate subdivisions of a legal entity. Form of this normative act, accordingly, is not included in the number of unified ones. However, in practice, standard provisions have been developed by which the organization can be guided. It should also be noted that information about the created separate divisions must be present in the constituent documents of the parent enterprise. The corresponding requirement is established in clause 3 of the 55th article of the Civil Code. The norms allow the activities of units without a leader.

An important point

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

Registration

The law provides for a procedure, the implementation of which ensures the recognition of the legality of the activities carried out separate subdivision of a legal entity. registration is carried out in the tax authority at the address of the location of the created enterprise. In this case, registration must be carried out within a month from the date of establishment of the enterprise. The corresponding prescription is contained in the 83rd article of the Tax Code (clause 4).

Features of the procedure

In practice, it happens that separate subdivision of a legal entity located out of place activities of the parent organization, did not start work within the first month from the date of its creation. In this case, there is no need to submit an application to the Federal Tax Service. If, however, after 2 months the enterprise nevertheless began to work, then it is imperative to register. At the same time, accordingly, it will not be possible to do this without violating the instructions of the Tax Code. Experts still recommend registering the subdivision within the time limit established by law, even if it will not work for the first month. Formal adherence to the procedure will avoid many problems in the future.

Notification

In addition to registering a subdivision at its location, the parent organization is obliged to notify the tax inspectorate at its location about the establishment of the enterprise. A similar notification is required in the event of a company closure. In the latter case, the notification must be sent within a month. The message is drawn up by f. S-09-3.

Compliance with requirements when opening multiple businesses

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

If several subdivisions are located in one MO, but in territories subordinate to various inspections, registration can be carried out by a control body at the address 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 inspectorate located at the location of the selected enterprise. The notification is drawn up by f. KND No. 1111051.

Actual and legal address

Quite often, in practice, these two concepts are identified. The legal address means 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 location of the enterprise corresponds to the address of registration. This procedure is carried out on the territory where the executive permanent body of the company is located. If it is absent, the registration address coincides with that of another person or structure that has the right to act on behalf of the company 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 operates at the actual address, and the parent organization is located at the legal address.

Many experts consider this approach to be incorrect. As the legislation indicates, one of the key features of a subdivision is its territorial isolation. If an enterprise operates at an address that differs from what is recorded in the constituent documents, it does not meet this criterion. The fact is that in this case there is no one at the legal address, respectively, the parent organization is absent. And its presence is a prerequisite by default.

A responsibility

If about a separate subdivision of a legal entity located at an address different from the one at which the parent company operates is not registered in the prescribed manner, the Tax Code provides for different types of sanctions. First of all, for violation of the terms, the perpetrators face a fine of up to 5 thousand rubles. (Art. 116). A doubling of the collection will occur if the delay is more than 90 days. At the same time, it should be said that there are no sanctions for failure to notify the Federal Tax Service about the closure or creation of a Tax Code unit.

Article 117 establishes responsibility for work without registration. The amount of monetary penalties at this rate is significantly higher. So, the 117th article establishes that for conducting activities in violation of registration rules, a fine of 10% of the profit received in the course of such work is charged. 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. The 116th article applies if the parent organization has not sent an application for registration within the prescribed period, and 117th norm - if the control body has identified the fact of carrying out activities without registration.

Specificity of judicial practice

There is an opinion that the 117th article applies to the conduct of activities without registration in general, and not specifically a unit. In other words, if the company is registered, then it is impossible to impose sanctions on it for working through another company opened by it. Meanwhile, not all courts share this opinion. In order to avoid problems when expanding a business, experts recommend following all the requirements of the legislation.

FIU

Subdivisions that have a dedicated balance sheet, p / s and pay salaries to employees are subject to registration in the fund. Registration is carried out on the basis of the data 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 management at the location of the OP. The fund, in turn, transfers 2 copies of the notification to the policyholder. One of them, within ten days, must be transferred to the FIU at the address of the parent organization.

FSS

To register in this fund, the unit must also have an independent balance sheet, employees to whom it calculates salaries, and a current account. Registration is carried out at the territorial office 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:

1. Holy Island about 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 the charter, which contains the relevant information, a power of attorney given to the head of the EP.
4. Information letter from the statistics body.
5. Notifications of registration with the FSS of the main organization.
6. Certificates from the bank about r / s, if they were open at the time of contacting the fund.

Personal income tax

The tax is calculated based on the amounts paid to the employees of the respective divisions. Personal income tax is deducted to the address of the location of each enterprise opened by the parent organization. It is necessary to submit reports to the inspection at the registration address of the OP. In some cases, the employee enters into an agreement with the parent organization, and conducts his labor activity in the unit. In such situations, the payment of personal income tax is made to the IFTS at the address of the OP. If the registration of the unit with the tax authority was made not at the beginning of the month, the tax is transferred in proportion to the share of the salary given to the employee during his employment. It is necessary to take into account that the payment of personal income tax, as well as the submission of reports, is made only when the EP has an independent balance and a bank account. Otherwise, this responsibility rests with the parent company. She carries out the deduction of personal income tax and the submission of tax returns to the inspectorate in which it is registered.

Insurance premiums

They are calculated based on the salaries of the department's employees. Payment of contributions is made to the budget of the region in which the OP is located. Reporting must be submitted to the branch of the FSS or the Pension Fund of the Russian Federation, where the separate subdivision was registered. When expanding a business, it is necessary to take into account the obligations that legislation imposes on the enterprise. These include the timely deduction of taxes and contributions to funds. Violation of the instructions will result in liability.

While mastering new market niches, companies often have to ensure their presence in “foreign” territories. Since separate subdivisions in many cases affect the calculation and payment of taxes, accountants often have a question: what, in fact, is considered a separate subdivision? Today we will talk about the signs of separate divisions, as well as about who, when and how to notify about their creation.

Codex codex strife

Unfortunately, lawyers are not always involved in organizing new divisions of the company. Often this work is entrusted to the sales department, for which the most important task is to quickly increase its presence in the region. And how it will be documented is the tenth thing for the "salesmen". Accordingly, if the company does not have lawyers, it is up to the accountant to study the registration procedure and monitor compliance with it.

The Civil Code, when it speaks of separate divisions, means branches and representative offices (Article 5 of the Civil Code of the Russian Federation). Their opening entails significant consequences for participants in civil turnover and therefore is associated with the commission of a number of legally significant actions, namely: making a decision on opening, amending the charter, making a branch seal, registration, etc.

The Tax Code proceeds from the needs of the budgets, therefore, for it the criteria for a separate division are completely different: the creation of a stationary workplace outside the location of the organization (clause 2 of article 11 of the Tax Code of the Russian Federation). And for tax purposes, it does not matter at all whether the company has carried out legal procedures in this regard. It would seem that everything is simple: if there is a job in another city - give a notification. No - don't serve it. But this simplicity is fraught with many problems.

Workplace signs

The first question that arises immediately after reading the above definition from the Tax Code of the Russian Federation sounds like this: what is a workplace outside the location of the organization? The Tax Code does not provide a corresponding explanation. Therefore, by virtue of the provisions of paragraph 1 of Art. 11 of the Tax Code of the Russian Federation applies the terminology of labor law. According to Art. 209 of the Labor Code, a workplace is a place where an employee must be or where he must arrive in connection with his work and which is directly or indirectly under the control of the employer.

With this in mind, there are three main features of a workplace outside the location of the organization:

1. The existence of an employment relationship between the organization and the employee.
2. The presence of the employee himself outside the location of the organization.
3. Organization's control over the workplace.

From this, we can draw the first conclusions on situations when a separate subdivision in the sense given to this term by the RF Tax Code does not appear.

Situation one

Individuals with whom the organization has a civil law contract (work contract, provision of services) do not form a separate division, even if they work in another region, and the contract is concluded for a long time. The reason is the lack of labor relations and, as a result, the lack of a job.

Situation two

The location of the company's property in a place other than the place of registration does not in itself form a separate subdivision. Therefore, for example, there will be no separate subdivision for a company that has bought real estate in another region and rents it out (resolution of the Federal Antimonopoly Service of the West Siberian District of 07.07.14 No. A81-4077 / 2013).

Situation three

The homeworker does not form a separate subdivision, because in this case, the condition that the workplace is under the control of the employer is not met. For the same reason, there will be no separate subdivision when sending an employee on a business trip. After all, the organization does not have the ability to control the workplace of a posted employee. Moreover, the traveler is subject to the internal labor regulations in force at the place of the trip (decision of the Supreme Court of the Russian Federation of 20.06.02 No. GKPI 2002-663, ruling of the Supreme Court of the Russian Federation of 27.08.02 No. KAS 02-441).

"Stationary" or not?

The next point that needs to be taken into account when deciding on the presence of a separate unit is the stationarity of the workplace. The situation is more complicated here.

On the one hand, the Tax Code of the Russian Federation seems to give a definition of "stationarity": a job created for a period of more than a month is considered to be such. But, on the other hand, in a number of cases the courts also apply additional signs of stationarity. Thus, the Federal Antimonopoly Service of the Central District in its resolution dated 03.06.14 No. A64-5102 / 2013 indicated: the organization did not have a separate division, since the technical equipment of the workplace was mobile and office premises were not rented. (In parentheses, we note that the case was about construction work and the court referred to the Code of Rules "Labor Safety in Construction. Regulations on the Procedure for Attestation of Workplaces for Working Conditions in Construction and Housing and Communal Services" 03/31/2000 No. 26, according to which such jobs are not recognized as stationary. Therefore, in normal situations it is still better to focus on the term of creation of a job and not bring the matter to a dispute regarding other signs of “stationarity”).

Where Territory Ends

Another criterion for determining whether an organization has a separate subdivision is a territorial one. As stated in Art. 11 of the Tax Code of the Russian Federation, the subdivision must be geographically separate from the organization. At the same time, the territory is usually understood as the municipality in which the organization is located. Accordingly, if a job appears in another municipality, then if other conditions are met, we can talk about the presence of a separate subdivision.

A little about responsibility

And what will happen if you do not inform about the creation of a separate subdivision? According to the Ministry of Finance, responsibility for failure to inform the inspection within the prescribed period of information on the creation of a separate subdivision is established by paragraph 1 of Art. 126 of the Tax Code of the Russian Federation, according to which the fine is 200 rubles. for each non-submitted document (letter of the Ministry of Finance of Russia dated 04.17.13 No. 03-02-07 / 1/12946; see "").

However, practice shows that in a number of cases inspectors try to establish more severe liability by applying the provisions of paragraph 2 of Art. 116 of the Tax Code of the Russian Federation, which provides for a fine of 10% of income received during the implementation of activities without registration. Such actions of inspectors can and should be appealed, since the named paragraph of Art. 116 of the Tax Code of the Russian Federation provides for a fine for conducting activities without registering with the tax authority at all, since this deprives inspectors of the opportunity to receive information about the payer and conduct control activities. Responsibility for the conduct of activities without registration only on one of the grounds given in Article 83 of the Tax Code of the Russian Federation is not established by this norm (resolution of the FAS of the North-Western District of April 29, 2004 No. A66-6713-03).

In this case, it will not be possible to collect from the taxpayer the fine provided for in paragraph 1 of Art. 116 of the Tax Code of the Russian Federation for violation of the deadlines for filing an application for registration. This is due to the fact that in this case the inspectors are obliged to register the organization at the location of its separate subdivision on the basis of the relevant message that the organization submits by virtue of paragraph 2 of Art. 23 of the Tax Code of the Russian Federation. And in this case, there is no statement as such at all.

No need to notify funds

From January 1, 2015, the obligation to report on the creation of a separate subdivision to the bodies of the Pension Fund and the Social Insurance Fund at the location of the organization has been canceled (Federal Law

The concept of a “separate subdivision” is used both in the Civil Code and in the Tax Code.

In order to avoid mistakes when applying this concept for tax purposes (in particular, when calculating income tax), it is advisable to identify the differences between the concept of a separate subdivision of a legal entity used in the Civil Code of the Russian Federation and the concept of a separate subdivision of an organization used in the Tax Code of the Russian Federation.

Civil law

In accordance with paragraph 1 of Art. 55 of the Civil Code of the Russian Federation representation is a separate subdivision of a legal entity located outside its location, which represents the interests of a legal entity and protects them. Branch is a separate subdivision of a legal entity located outside its location and performing all of its functions or part of them, including the functions of a representative office (clause 2 of article 55 of the Civil Code of the Russian Federation). Thus, representative offices and branches are two different types (varieties) of separate divisions of a legal entity located outside of its location and either representing the interests of the legal entity and protecting them, or performing all or part of its functions, including the functions of a representative office. Other types of separate subdivisions of a legal entity are not defined in the Civil Code of the Russian Federation, that is, their list is closed.

Note!

The concepts of "subdivision" and "separate subdivisiondivision "in the Civil Code of the Russian Federation are not defined.

Taking into account the provisions of paragraphs 1 and 2 of Art. 55 of the Civil Code of the Russian Federation, two signs of representation can be distinguished:

1. location outside the location of the legal entity;
2. implementation of the functions of the organization.

The difference between a dealership and a branch is that they carry out various functionsorganizations. The branch can carry out all its functions, and the representation is only some(represents the interests of the organization and protects them). This means that a dealership is essentially a type of branch.

A common feature of both types of separate divisions of a legal entity is their isolation. Obviously, the isolation of a division of a legal entity means its location outside the location of this legal entity. From paragraphs 1 and 2 of Art. 55 of the Civil Code of the Russian Federation, it can be concluded that the main

a sign of a separate division of an organization is its location outside the location of the organization itself.

What is the status of these separate subdivisions? In accordance with paragraph 3 of Art. 55 of the Civil Code of the Russian Federation, representative offices and branches are not legal entities. They are endowed with property by the legal entity that created them, and act on the basis of its own approved provisions. Heads of representative offices and branches are appointed by the management of the legal entity and act on the basis of its power of attorney. Representative offices and branches must be indicated in the constituent documents of the legal entity that created them.

Thus, from this point, we can conclude that the necessary attributes of any separate subdivision include:

- the presence of property;

—Regulations on the subdivision;

-supervisor;

- an indication of the presence of a subdivision in the constituent documents of the organization.

So which of its structural subdivisions the organization should refer to separate subdivisions and indicate in the constituent documents? When answering this question, keep in mind the following.

Concept "Location outside the location" not defined in the Civil Code of the Russian Federation. In this case, obviously, we are talking about the fact that the location of a separate subdivision of a legal entity does not coincide with the location of the legal entity itself. According to paragraph 2 of Art. 54 of the Civil Code of the Russian Federation, the location of a legal entity is determined by the place of its state registration. Thus, the location of a legal entity coincides with 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 legal entity without a power of attorney. Moreover, only in the absence of a permanent executive body, the location of the legal entity coincides with the location of another body or person entitled to act on behalf of the legal entity without a power of attorney. When determining the place of state registration of a legal entity, one should be guided by the Law of 08.08.2001 No. 129-FZ "On state registration of legal entities and individual entrepreneurs."

Subparagraphs "c" and "n" of clause 1 of Art. 5 of Law No. 129-FZ, it is established that the Unified State Register of Legal Entities contains, in particular, the following information about a legal entity:

—Address (location) of a permanent executive body of a legal entity (in the absence of a permanent executive body of a legal entity - another body or person entitled to act on behalf of a legal entity without a power of attorney), at which communication with the legal entity is carried out (sub. " v");

- information about the branches and representative offices of the legal entity (sub. "N").

In this case, the location of a separate subdivision of a legal entity should not coincide with the location of the legal entity itself.

So, the Law determines the location of the organization (sub. "C" clause 1 of Article 5), but the location of the separate division of the organization is not determined.

It can be assumed, given the provisions of paragraph 3 of Art. 55 of the Civil Code of the Russian Federation, that the location of a separate subdivision of a legal entity means the location of either the property of the specified subdivision or its head. Obviously, the concept "I find the placedenia " coincides with the concept "the address", namely with the mailing address.

If, for example, the address of the permanent executive body of a legal entity (plant) is Ivanovsk, Ivanova street, building 1, building 1; the address of workshop No. 1 of the plant is Ivanovsk, Ivanova street, building 1, building 2; the address of workshop No. 2 of the plant is Ivanovsk, Ivanova street, building 1, building 3, then these workshops can be considered as separate subdivisions of the specified organization (plant). But should they be considered as such without fail and, therefore, listed in the constituent documents?

From Art. 55 of the Civil Code of the Russian Federation, it can be concluded that the classification by an organization of its structural unit as separate units is the right of this organization. Nevertheless, in the case when a structural unit, which is located outside of its location (a necessary sign of a separate unit), is classified by the organization as a separate unit, it must be named in its constituent documents without fail.

How to determine what is "Permanent isexecutive bodies of a legal entity "? What other bodies and persons are entitled to act on behalf of a legal entity without a power of attorney?

In the first part of the Civil Code of the Russian Federation, the concept "Executive bodiesus a legal entity " is used in articles devoted to the management of organizations of only three specific types - a limited liability company (LLC), a joint-stock company (JSC), a production cooperative.

An executive body (collegial and (or) sole) is created in the LLC, which carries out the current management of the company's activities and is accountable to the general meeting of its participants. The sole governing body may be elected not from among the participants in the company (clause 1 of article 91 of the Civil Code of the Russian Federation). The competence of the company's management bodies, as well as the procedure for making decisions and speaking on behalf of the company, are determined in accordance with the Civil Code of the Russian Federation, the Law on Limited Liability Companies and the Charter of the company (clause 2, Article 91 of the Civil Code of the Russian Federation). Thus, in one company, two executive bodies (collegial and sole) can function simultaneously.

Information about the executive bodies 000 is contained in its constituent documents. The constituent documents of a limited liability company must contain (in addition to the information specified in clause 2 of article 52 of the Civil Code of the Russian Federation):

1) conditions on the amount of the authorized capital of the company; the share of each of the participants;

2) on the amount, composition, timing and procedure for making contributions by participants;

3) on the liability of participants for violation of obligations to make contributions;

4) on the composition and competence of the management bodies of the company and the procedure for making decisions by them (including on issues on which decisions are taken unanimously or by a qualified majority vote);

5) other information provided for by the Law on Limited Liability Companies (Clause 2, Article 89 of the Civil Code of the Russian Federation).

The executive body of a JSC can be collegial (board, directorate) and (or) sole (director, general director). He carries out the day-to-day management of the company's activities and is accountable to the board of directors (supervisory board) and the general meeting of shareholders. By decision of the general meeting of shareholders, the powers of the company's executive body can be transferred under an agreement to another commercial organization or an individual entrepreneur (manager) (clause 3, article 103 of the Civil Code of the Russian Federation). The competence of the governing bodies of a joint-stock company, as well as the procedure for making decisions and speaking on behalf of the company, are determined in accordance with the Civil Code of the Russian Federation, the Law on Joint-Stock Companies and the Charter of the company (clause 4, Article 103 of the Civil Code of the Russian Federation).

Thus, the following may act as the executive body of a joint-stock company:

—Collegiate executive body (board, directorate) and (or) the sole executive body (director, general director);

- a commercial organization or an individual entrepreneur (manager), to whom the powers of the executive body have been transferred under the contract.

Consequently, in one joint-stock company, two executive bodies (collegial and sole) can function simultaneously. Information on the composition and competence of the management bodies of the joint-stock company is contained in the charter of the said company.

The charter of a joint-stock company, in addition to the information specified in paragraph 2 of Art. 52 of the Civil Code of the Russian Federation, must contain the following conditions:

—On the size of the authorized capital of the company;

—On the rights of shareholders;

- on the composition and competence of the management bodies of the company and the procedure for making decisions by them (including on issues, decisions on which are taken unanimously or by a qualified majority) (clause 3, article 98 of the Civil Code of the Russian Federation).

Executive bodies production coperative are the board and (or) its chairman. They carry out the day-to-day management of the cooperative's activities and are accountable to the supervisory board and the general meeting of cooperative members. Only members of the cooperative can be members of the supervisory board and board of the cooperative, as well as the chairman of the cooperative (Article 110 of the Civil Code of the Russian Federation). The competence of the governing bodies of the cooperative and the procedure for making decisions by them are determined by legislation and the charter of the cooperative (clause 2, article 110 of the Civil Code of the Russian Federation).

Thus, the board and (or) its chairman can act as the executive bodies of a production cooperative. Consequently, in one production cooperative, two executive bodies (the board and (or) its chairman) can function simultaneously. Information about the executive bodies of a production cooperative is contained in its Charter.

The charter of the cooperative must contain (in addition to the information specified in clause 2 of article 52 of the Civil Code of the Russian Federation):

1) conditions on the amount of share contributions of members of the cooperative;

2) on the composition and procedure for making shares by members of the cooperative and their responsibility for violation of the obligation to make shares;

3) on the nature and procedure of labor participation of its members in the activities of the cooperative and their responsibility for violation of the obligation for personal labor participation;

4) on the procedure for the distribution of profits and losses of the cooperative;

5) on the size and conditions of subsidiary liability of its members for the debts of the cooperative;

6) on the composition and competence of the management bodies of the cooperative and the procedure for making decisions by them (including on issues on which decisions are taken unanimously or by a qualified majority) (clause 2, article 108 of the Civil Code of the Russian Federation).

Note!

The concept of "permanent executivebody of a legal entity "in the Civil Code of the Russian Federation is not defined (inthe first part of the Civil Code of the Russian Federation, this concept is used only inclause 2 of Art. 54 of the Civil Code of the Russian Federation).

This concept is also absent in the Law of 08.02.98 No. 14-FZ "About limited companies responsiblystu ", Law dated 26.12.95 No. 208-FZ "On joint stock companies" and the Law of 08.05.95 No. 41-FZ "About productionprivate cooperatives ". At the same time, as stated above, in the named organizations, the functioning of several executive bodies of a legal entity is allowed. In this regard, the problem arises of separating a permanent executive body of a legal entity.

In accordance with paragraph 1 of Art. 53 of the Civil Code of the Russian Federation, a legal entity acquires civil rights and assumes civil obligations through its bodies operating in

in accordance with the law, other legal acts and constituent documents. The procedure for the appointment or election of the bodies of a legal entity is determined by law and constituent documents.

This may mean that if the procedure for classifying the executive body of a legal entity as a "permanent executive body" is not established by law, then the organization itself has the right to establish this procedure, and it must be reflected in its constituent documents.

If the procedure for the appointment or election of a permanent executive body (there can be only one) is not determined either by law or by constituent documents, then on the basis of sub. "In" clause 1 of Art. 5 of Law No. 129-FZ, the location of an organization should be understood as the address (location) of another body or person entitled to act on behalf of a legal entity without a power of attorney, through which communication with the legal entity is carried out. What other organs and persons are these? Their circle is outlined in st. 53 of the Civil Code of the Russian Federation.

The provisions of clause 1 of this article are given above. But besides these provisions, it is important to consider the following. In cases stipulated by law, a legal entity can acquire civil rights and assume civil obligations through its participants (clause 2 of article 53 of the Civil Code of the Russian Federation). A person who, by virtue of the law or the constituent documents of a legal entity, acts on its behalf, must act in the interests of the legal entity it represents in good faith and reasonably. It is obliged, at the request of the founders (participants) of the legal entity, unless otherwise provided by law or agreement, to compensate the losses caused to the legal entity (clause 3 of article 53 of the Civil Code of the Russian Federation).

When applying the norm established by sub. "N" clause 1 of Art. 5 of Law No. 129-FZ, due to the fact that the Law does not establish a list of information on branches and representative offices of a legal entity contained in the Unified State Register of Legal Entities, the question arises: does the information on their location refer to the specified information? It does not follow from the Law that this information is mandatory. Thus, there may be cases of lack of information on the location of branches and representative offices of a legal entity in the Unified State Register of Legal Entities.

In accordance with paragraph 2 of Art. 52 of the Civil Code of the Russian Federation, the constituent documents of a legal entity must contain:

-name of the legal entity,

- its location,

- the procedure for managing the activities of a legal entity,

- other information provided by the Law for legal entities of the corresponding type.

At the same time, clause 3 of this article provides that changes in the constituent documents become effective for third parties from the moment of their state registration, and in cases established by the Law, from the moment the body carrying out state registration is notified of such changes. However, legal entities and their founders (participants) do not have the right to refer to the lack of registration of such changes in relations with third parties acting in view of these changes.

Thus, if the Law does not provide for legal entities of the corresponding type that the constituent documents of a legal entity must contain information about the location of its branches and representative offices, the organization has the right not to provide this information in its constituent documents. Consequently, in some cases, even in the constituent documents of the organization, you may not find the addresses of the separate divisions of the organization.

Along the way, another significant question arises: what documents of a legal entity are constituent documents? Clause 1 of Art. 52 of the Civil Code of the Russian Federation stipulates that a legal entity acts on the basis of the Charter, or the constituent agreement and the Charter, or only the constituent agreement. In the cases provided for by the Law, a legal entity that is not a commercial organization may act on the basis of a general regulation on organizations of this type. The constituent agreement of a legal entity is concluded, and the Charter is approved by its founders (participants). A legal entity created in accordance with the Civil Code of the Russian Federation by one founder acts on the basis of the Charter approved by this founder. Thus, information about the location of separate divisions can be contained in the above documents.

Tax law

According to paragraph 2 of Art. 11 of the Tax Code of the Russian Federation for the purposes of the Tax Code, in particular, the following concept is used: "Separate subdivision of the organization— any terrya torially detached subdivision, in placethe location of which is equipped with stationary workwhose places ". Recognition of a separate division of an organization as such is carried out regardless of whether its creation is reflected or not reflected in the constituent or other organizational and administrative documents of the organization, and from the powers that are vested in this division. In this case, a workplace is considered stationary if it is created for a period of more than one month.

In addition, the specified paragraph defines the concept "Location of a separate subdivision of a Russian organization"(the place where this organization carries out its activities through its separate subdivision).

A separate subdivision of an organization means any subdivision geographically separate from it, at the location of which workplaces are equipped, created for a period of more than one month. At the same time, the location of a separate subdivision of a Russian organization is not understood as the place where stationary workplaces are equipped, but the place where this organization performs its activities.

So, the concept of "separate division of the organization" is disclosed with the help of the following concepts:

- territorial isolation,

-workplace,

—Equipped workplace.

Concept "Territorial isolation of the subdivisionlaziness " and in the Tax Code of the Russian Federation and in the Civil Code of the Russian Federation is absent. First of all, you should define the concept "Territorial isolationlaziness ". The Explanatory Dictionary of the Russian Language 1 defines the corresponding words, in particular, as follows and gives examples of the use of these words:

territory- limited land space (plant territory);

detached- standing apart, separate (to occupy a separate position).

Wherein "space" defined, in particular, as:

1) extent, a place not limited by visible limits (steppe spaces);

2) a gap between something, a place where something fits (free space between a window and a door).

In this way, "space" can be defined as a place that is limited by the visible limits, since, when defining a territory, we are talking about a limited space.

Consequently, the Tax Code of the Russian Federation means that the organization and its separate subdivision are located in different territories (limited land spaces), that is, on different (non-contiguous) land plots.

For example, if on one land plot there is not only a permanent executive body of an organization that is a plant (plant management), but also many factory buildings (workshops), then these workshops cannot be recognized as separate divisions of the organization. However, if another part of the workshops of the plant is located on another (non-adjacent) land plot (between these plots, for example, a residential quarter is located), then this whole other part of the workshops is recognized as a separate division of the organization.

Note!

In Chapter 25 "Corporate Income Tax" exceptthe concept of "territory" is used the concept of "aquatoriya ".

So, in accordance with paragraph 3 of Art. 261 of the Tax Code of the Russian Federation, the procedure provided for by this paragraph applies to the costs of the development of natural resources related to a part of the territory (water area) provided for by the corresponding license. In this case, the taxpayer must keep separate records of such expenses for the corresponding part of the territory (water area).

Subparagraph 1 of paragraph 2 of Art. 308 of the Tax Code of the Russian Federation stipulates that the continuation or renewal after a break in work at a construction site after the signing of the act specified in clause 3 of the named article leads to the addition of the period for conducting ongoing or renewed work and a break between works to the cumulative life of the construction site only if, if the territory (water area) of the resumed works is the territory (water area) of the previously discontinued works or is closely adjacent to it.

Expenses for the development of natural resources, provided for in paragraph 1 of Art. 261 of the Tax Code of the Russian Federation, are reflected in analytical tax accounting registers separately for each subsoil plot (field) or a plot of territory (water area) reflected in the license agreement for the payer (license for the right to use subsoil) (clause 2, Article 325 of the Tax Code of the Russian Federation).

For your information!

According to the above explanatory dictionary akvatoria— water surface, waterema; water area (water area of ​​the port, water area of ​​Miflat ocean).

Thus, Chapter 25 of the Tax Code of the Russian Federation deals with both land and water areas and, therefore, about territorial and equatorial isolation. This means, in particular, that the oil production carried out by the organization in different parts of the water area is carried out by its various separate subdivisions.

It remains to define more concepts "workplace" and "Equipped workplace", contained in the definition of a separate division of the organization. These concepts are not defined in the Tax Code of the Russian Federation.

What is meant by "workplace", using the concept of "separate unit" for tax purposes? In accordance with paragraph 1 of Art. 11 of the Tax Code of the Russian Federation, the institutions, concepts and terms of civil, family and other branches of legislation of the Russian Federation used in the Tax Code of the Russian Federation are used in the same meaning in which they are used in these branches of legislation, unless otherwise provided by the Tax Code of the Russian Federation.

Concept "workplace" is related to labor relations and should be applied in the same sense in which it is used in labor law. Article 209 of the Labor Code of the Russian Federation determines that 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. Thus, this concept is not associated with the presence of any property (including depreciable), which is necessary, in particular, to carry out work. At the same time, we draw attention to the fact that the Labor Code of the Russian Federation does not specify what is meant by the control of the employer.

What is meant by "Equipped workplacesmi "! The answer to this question is important, in particular, when determining the date of creation of a workplace (for example, if an organization rents a production facility). According to Art. 22 of the Labor Code of the Russian Federation, the employer is obliged, in particular, to provide employees with equipment, tools, technical documentation and other means necessary for the performance of their labor duties. In addition, Art. 163 of the Labor Code of the Russian Federation stipulates that the employer is obliged to provide normal conditions for the employees to fulfill the production standards. Such conditions, in particular, include the good condition of premises, structures, machines, technological equipment and equipment.

In this regard, the equipment of the workplace should be understood as the provision (by the employer) of workers with premises, structures, machines, technological equipment, equipment, tools, technical documentation and other means necessary for the performance of their labor duties.

Concept used in several articles of chapter 25 of the Tax Code of the Russian Federation. In particular, in accordance with the first part of Art. 275.1 Taxpayers, which include separate subdivisions carrying out activities related to the use of facilities of service industries and farms, determine the tax base for these activities separately from the tax base for other types of activities.

At the same time, we note the following: paragraph 25 of Art. 1 of the Law of 06.06.2005 No. 58-FZ "On amending part of the WTOru of the Tax Code of the Russian Federation and somery other legislative acts of the Russian Federationabout taxes and fees "(hereinafter referred to as the Law) in Art. 275.1 of the Code in part one word "Isolated" excluded. This clause will come into force on January 1, 2006 (clause 1 of article 8 of the said Law).

The specifics of paying tax by taxpayers with separate subdivisions are established by Art. 288 of the Tax Code of the Russian Federation (clause 3 of Article 287 of the Tax Code of the Russian Federation). Payment of advance payments, as well as the amounts of tax to be credited to the revenues of the budgets of the constituent entities of the Russian Federation and the budgets of municipalities, are made by taxpayers - Russian organizations at the location of the organization, as well as at the location of each of its separate subdivisions based on the share of profit attributable to these separate subdivisions. Clause 1 of Art. 289 of the Tax Code of the Russian Federation, it is established that taxpayers, regardless of whether they have an obligation to pay tax and (or) advance tax payments, the specifics of calculating and paying tax, are obliged to submit to the tax authorities at the place of their location and the location of each of a separate subdivision, corresponding tax declarations in the manner determined by the specified article.

Keep in mind!

Under a permanent establishment of a foreignorganization in the Russian Federation is understood as a branch, representativestate, department, bureau, office, agency, any otherseparate subdivision or other place of actionthe activity of this organization, through which the organization regularly carries out entrepreneurial activities on the territory of the Russian Federation.

When applying the concept "Separate subsectionorganization " for the purposes of taxation of profits, in particular, the following questions arise.

Can any subdivision of an organization, geographically separate from it, be a separate subdivision of an organization, at the location of which one stationary workstation is equipped?

Is a separate subdivision of an organization created if stationary workplaces are equipped but not occupied by workers at the location of the subdivision, which is geographically separate from it? That is, the relevant labor relations between the employee of this unit and the employer arose later than the employer equipped the corresponding stationary workplaces (for example, as a result of the construction of production facilities or in the case of their lease).

In the definition of a separate subdivision of an organization, the noun "subdivision" used in the singular, and "place"- in the plural (it is not about the workplace, but about the workplace). Therefore, we can conclude that in the case of the creation of a geographically separate subdivision, at the location of which only one stationary workplace is equipped (for example, a post office), one cannot talk about the creation of a separate subdivision of the organization. However, this is a formal approach to clarifying this definition, so you should be prepared for the tax authority not to share this position.

In any case, it is obvious that if, for example, an organization has built (rented) a workshop, but has not yet hired workers for this workshop, it is not possible to consider the workshop as a separate subdivision, since jobs have not yet been created in it (workers who should take these places). It is another matter if the workers are already hired and must arrive at the shop for work, but have not arrived yet. In this case, the workshop can be considered as a separate division of the organization.

What are the main differences between the concept "Abouta subdivision of a legal entity (organizationaltion) ", used in the Civil Code of the Russian Federation, and the same concept used in the Tax Code of the Russian Federation?

1. Legal entities have the right to create branches and open representative offices on the territory of the Russian Federation and abroad. A branch and a representative office are subdivisions of a legal entity, its constituent parts. These divisions should be organizationally separate within the legal entity and located outside of its location.

2. The difference between both divisions from each other lies in the range of tasks performed. The branch performs the functions of a legal entity, which should be understood as the types of production and other activities of a legal entity, which it has the right to engage in in accordance with the law and the constituent documents of the legal entity. The mission of the representative office is limited. They consist in the representation and protection of the interests of a legal entity, that is, in the functions carried out within the framework of the institution of representation, by virtue of powers based on a power of attorney.

3. To perform their functions, a branch and a representative office shall be endowed with the necessary property by the legal entity that created them. This property is assigned to the corresponding branch or representative office, but is either owned by a legal entity, or belongs to a legal entity on another legal basis. In accounting, the specified property is reflected simultaneously on a separate balance sheet of a branch or representative office, and on the balance sheet of a legal entity. In contrast, a subdivision of an organization, which is a separate subdivision in accordance with the Tax Code of the Russian Federation, may not have a separate balance sheet.

4. In accordance with the current tax legislation, branches and representative offices are not independent payers of taxes and (or) fees. At the same time, in accordance with the procedure stipulated by the Tax Code of the Russian Federation, they fulfill the obligations of the organization that created them to pay taxes and fees at the place of their location (Article 19 of the Tax Code of the Russian Federation).

5. In accordance with the requirements of the Civil Code of the Russian Federation, the head of the branch and the head of the representative office are appointed by the body of the legal entity authorized to do so in accordance with the constituent documents of the legal entity. There is no specified requirement for subdivisions that are separate in accordance with the Tax Code of the Russian Federation.

6. All separate subdivisions of a legal entity that meet the characteristics stipulated by the Civil Code of the Russian Federation, regardless of their name (branch, agency, correspondent bureau, etc.) are subject to the legal regime of either a representative office or a branch. For tax purposes, there is no difference in the legal regime of a representative office and a branch.

7. In accordance with the Civil Code of the Russian Federation, information on the established branches and open representative offices must be indicated in the constituent documents of the legal entity (location and other necessary information). This provision allows state control over the activities of a legal entity outside its location for taxation purposes and to protect the interests of creditors, as well as for other purposes stipulated by law.

In connection with the above, it must be stated that all divisions that are isolated in accordance with civil law are recognized as separate for tax purposes. However, not every subdivision recognized as separate in accordance with tax legislation is such in accordance with the Civil Code of the Russian Federation.

Responsibility for violation of the requirements of the Civil Code of the Russian Federation on the indication in the constituent documents of a legal entity of information about the established branches and open representative offices is established by Chapter 8 of Law No. 129-FZ.

Applicants, legal entities and (or) individual entrepreneurs are liable for failure to submit or untimely submission of information necessary for inclusion in state registers, as well as for submission of inaccurate information, as established by the legislation of the Russian Federation (clause 1 of article 25 of Law No. 129-FZ).

The registering authority has the right to apply to the court with a demand to liquidate a legal entity in the event of gross violations of the law or other legal acts committed during the creation of such a legal entity, if these violations are irreparable, as well as in the event of repeated or gross violations of laws or other regulatory legal acts of the state registration of legal entities (clause 2 of article 25 of Law No. 129-FZ).

The Tax Code of the Russian Federation does not provide for the mandatory reflection in the constituent documents of the taxpayer of information concerning the divisions of the organization recognized as separate for tax purposes.

Nevertheless, there is a special form of tax control over the activities of organizations, carried out through its separate divisions. An organization that includes separate subdivisions located on the territory of the Russian Federation must register with the tax authority at the location of each of its separate subdivisions (clause 1 of article 83 of the Tax Code of the Russian Federation). An application for registration of an organization at the location of a separate subdivision is submitted within one month after its creation (clause 4 of article 83 of the Tax Code of the Russian Federation). Chapter 16 of the Tax Code of the Russian Federation provides for liability both for violation of the deadline for registration with the tax authority (Article 116 of the Tax Code of the Russian Federation) and for evading registration (Article 117 of the Tax Code of the Russian Federation). It should be borne in mind that the provisions of Art. 117 of the Tax Code of the Russian Federation also apply to the organization's activities through its separate divisions.

Submission by the taxpayer to the tax authorities of the list of its separate subdivisions of the RF Tax Code is not provided. How to establish a complete list of subdivisions classified as separate subdivisions in accordance with the Tax Code of the Russian Federation and accounted for for tax purposes of profits during the tax period?

Clause 1 of Art. 289 of the Tax Code of the Russian Federation, it is established that taxpayers, regardless of whether they have an obligation to pay tax and (or) advance tax payments, the specifics of calculating and paying tax, are obliged to submit to the tax authorities at the place of their location and the location of each separate subdivision corresponding tax declarations. An organization that includes separate subdivisions, at the end of each reporting and tax period, submits to the tax authorities at the place of its location a tax return for the organization as a whole with distribution to separate subdivisions (clause 5 of article 289 of the Tax Code of the Russian Federation).

The tax authority at the location of the separate subdivisions of the organization submit a Declaration, as well as the calculation of the amount of tax payable at the location of this separate subdivision. The number of settlements depends on the number of separate subdivisions. Appendices No. 5a are submitted for all separate subdivisions, including those liquidated during the current tax period. Consequently, the amount of data on line 010 of Appendix No. 5a is a list of structural divisions of the organization, recognized by its separate divisions in accordance with the Tax Code of the Russian Federation.

Are there tax penalties for failure to submit a Declaration at the location of separate subdivisions and, therefore, the specified data? If at the location of a separate subdivision the Declaration is not submitted in full (for example, it includes the Title Page (Sheet 01), subsection 1.1 of Section 1 and (or) subsection 1.2 of Section 1, but does not include Appendix No. 5a to Sheet 02 ), the corresponding liability for the specified violation is not provided. The specified violation is qualified as a violation of the rules for drawing up a tax return.

Prior to the entry into force of the relevant provision of the Law dated 09.07.99 No. 154-FZ "On amendments and additionsniy in part one of the Tax Code of the Russian Federationwalkie-talkies " applied Art. 121 of the Tax Code of the Russian Federation, according to which violation of the rules for drawing up a tax declaration by a taxpayer, that is, non-reflection or incomplete reflection, as well as errors leading to an underestimation of the amounts of taxes payable, entail a fine of five thousand rubles.

We also note that in case of failure to submit the Declaration at the location of the separate subdivision and, accordingly, non-payment of tax at the location of the separate subdivision, Art. 122 "Failure to pay or incomplete payment of tax amounts" Tax Code of the Russian Federation. Clause 1 of Art. 122 of the Tax Code of the Russian Federation established that non-payment or incomplete payment of tax amounts as a result of understating the tax base, other incorrect calculation of the tax or other illegal actions (inaction) entails the collection of a fine in the amount of 20 percent of the unpaid tax amounts. Acts provided for in clause 1 of this article, committed intentionally, entail the recovery of a fine in the amount of 40 percent of the unpaid tax amounts (clause 3 of article 122 of the Tax Code of the Russian Federation).

Thus, Art. 122 of the Tax Code of the Russian Federation applies not only to cases of non-payment or incomplete payment of tax amounts as a result of understating the tax base, other incorrect calculation of tax, but also to cases of non-payment or incomplete payment of tax amounts as a result of other illegal actions (inaction), which may include failure to submit Declarations at the location of the separate subdivisions of the organization (since the submission of the Declaration at the location of the separate subdivisions of the organization is mandatory in accordance with clause 1 of article 289 of the Tax Code of the Russian Federation), as well as the related non-payment of tax at the location of the separate subdivisions of the organization (since the specified payment is mandatory in accordance with clause 2 of article 288 of the Tax Code of the Russian Federation).

Keep in mind!

When applying paragraph 1 of Art. 122 of the Tax Code of the Russian Federation are accounted for according toclause 2 of the Definition of the Constitutional Court of the Russian FederationRussian Federation of 04.07.2002 No. 202-О.

According to this Determination, the issue of the constitutionality of the provisions of tax legislation, providing for the possibility of the application of penal sanctions by state bodies in the absence of the debtor's fault, along with the collection of penalties, has repeatedly been the subject of consideration by the Constitutional Court of the Russian Federation.

In the Decree of 12/17/96 on the case of checking the constitutionality of paragraphs 2 and 3 of the first part of Art. 11 of the Law of the Russian Federation "On federal tax authoritieslice " The Constitutional Court of the Russian Federation indicated that within the meaning of Art. 57 of the Constitution of the Russian Federation, the tax obligation consists in the obligation of the taxpayer to pay a certain tax established by law. Failure to pay tax on time must be compensated for by paying off the tax liability, full compensation for damage incurred by the state as a result of late payment of the tax. Therefore, the legislator has the right to add an additional payment to the amount of the tax that was not actually paid on time - a penalty as compensation for losses of the state treasury as a result of not receiving tax amounts on time.

Measures of a different kind, namely the collection of fines, in their essence go beyond the scope of the tax obligation. They are not restorative, but punitive in nature and are a punishment for a tax offense, that is, for an unlawful guilty act provided for by law, committed intentionally or through negligence. In proceedings on a case of a tax offense, both the very fact of such an offense and the fault of the taxpayer are subject to proof.

As follows from the Constitution of the Russian Federation (Art. 54, Part 2), an offense is a necessary ground for all types of legal liability. At the same time, the content of specific offenses in the public law sphere should be consistent with the principles of the rule of law in its relationship with individuals and legal entities as subjects of legal responsibility. This legal position was formulated by the Constitutional Court of the Russian Federation in the Decree of 04/27/2001 on the case on the verification of a number of provisions of the Customs Code of the Russian Federation. As an expression of a general legal principle, it applies to liability and for tax offenses.

In accordance with Art. 106 of the Tax Code of the Russian Federation, a tax offense is recognized as a guilty committed unlawful (in violation of the legislation on taxes and fees) act (action or inaction) of a taxpayer, tax agent and other persons for which the Tax Code of the Russian Federation has established responsibility. The absence of a person's fault in committing a tax offense Art. 109 of the Tax Code of the Russian Federation refers to the circumstances precluding his being brought to justice. Consequently, the need to establish the guilt of the taxpayer in order to bring him to justice is directly prescribed by the Tax Code of the Russian Federation.

In the Decree of the Constitutional Court of the Russian Federation of 01/25/2001 on the case of checking the constitutionality of paragraph 2 of Art. 1070 of the Civil Code of the Russian Federation expresses the legal position according to which the absence of guilt in violation of obligations in the public law sphere is one of the circumstances excluding the application of sanctions, since it indicates the absence of the very corpus delicti.

A different interpretation of the composition of an offense, including a tax one, as a basis for liability would also contradict the nature of justice. The court in connection with bringing taxpayers to responsibility for violation of tax obligations on the basis of the principles of adversarial nature and equality of the parties cannot limit itself to formally establishing only the fact of violation of these obligations, without revealing other circumstances associated with it, including the presence or absence of the fault of the relevant entities, in which whatever form it manifests itself.

All the above-mentioned decisions of the Constitutional Court of the Russian Federation remain in force. The legal positions set out in them on guilt and the need to establish (prove) it, as well as on the possibility and conditions of collecting penalties and fines, are also applicable to other laws containing provisions on the payment of taxes, and are obligatory for courts, other bodies and officials when applying them the provisions of federal laws providing for liability (sanctions) for the commission of offenses. Therefore, contained in paragraph 1 of Art. 122 of the Tax Code of the Russian Federation, the provisions according to which non-payment or incomplete payment of tax amounts as a result of understating the tax base, other incorrect calculation of tax or other illegal actions (inaction) entails the recovery of a fine in the amount of 20 percent of the unpaid tax amounts, should be applied in accordance with the constitutional and legal the meaning of similar provisions identified in the decisions of the Constitutional Court of the Russian Federation and this Ruling that remain in force.

In addition, it should be borne in mind that in accordance with the Decision of the Constitutional Court of the Russian Federation dated January 18, 2001 No. 6-0, the provisions of paragraphs 1 and 3 of Art. 120 and clause 1 of Art. 122 of the Tax Code of the Russian Federation, which determine the compositions of tax offenses that are insufficiently delimited among themselves, cannot be used simultaneously as a basis for bringing to responsibility for committing the same illegal actions.

So as far as legitimate in connection with the above, the conclusion about the need to apply Art. 122 of the Tax Code of the Russian Federation and at the same time Art. 75 of the Tax Code of the Russian Federation in case of failure to submit a Declaration at the location of separate divisions and the related non-payment of tax at their location?

Situation

Organization and all its separatesubdivisions are located on the territory of one subjectect RF. In 2005, the organization paid tax to the budgetzet of the constituent entity of the Russian Federation at the place of its location, taking into accountattributable to these units producedin a timely manner. Should, in this case, for failurethat of the tax at the location of the separate divisionsdivisions apply Art. 122 of the Tax Code of the Russian Federation and at the same timeaccrued interest in accordance with Art. 75 of the Tax Code of the Russian Federation?

Federal Law of July 29, 2004 No. 95-FZ "On outsideamendments to parts one and two of the Tax Code of the Russian Federation and the invalidation of some legislative acts (provisions of legislative acts) of the Russian Federation on taxationgakh and fees " amendments have been made to clause 1 of Art. 284 of the Tax Code of the Russian Federation. In this regard, from January 1, 2005, the amount of tax is credited only to the federal budget and the budgets of the constituent entities of the Russian Federation. Therefore, taking into account the provisions of paragraphs 1 and 2 of Art. 288 of the Tax Code of the Russian Federation, an organization that has separate subdivisions in its composition makes advance payments, as well as the amount of corporate income tax to the federal budget, at the place of its location, and to the budgets of the constituent entities of the Russian Federation - at the place of its location and at the location of each of its separate subdivisions.

Separate subdivisions of an organization can be located on the territory of one constituent entity of the Russian Federation. Is a penalty charged on tax amounts (including in the form of advance payments paid during the reporting (tax) period) that are not paid to the budget of the named entity at the location of these separate divisions?

Clause 1 of Art. 75 of the Tax Code of the Russian Federation, it is determined that the penalty interest is the amount of money established by the named article, which the taxpayer, payer of fees or tax agent must pay in case of payment of the due amounts of taxes or fees, including taxes paid in connection with the movement of goods across the customs border of the Russian Federation, in later than those established by the legislation on taxes and fees.

Thus, the default interest is charged only in the event of late payment of the due tax amounts. Obviously, the amount of tax due is understood as the amount of tax paid in full to the relevant budget (for example, to the budget of a constituent entity of the Russian Federation). At the same time, Art. 75 of the Tax Code of the Russian Federation does not establish the obligatory place of tax payment (for example, at the location of the organization or at the location of its separate subdivisions). In this case, the place of tax payment does not matter. Therefore, in the case of timely payment of tax to the relevant budget, the penalty is not charged.

Article 75 of the Tax Code of the Russian Federation stipulates that the taxpayer must pay the tax himself. Which person is recognized as a taxpayer? Article 19 of the Tax Code of the Russian Federation stipulates that organizations and individuals who, in accordance with the Tax Code of the Russian Federation, are obliged to pay taxes and / or fees, respectively, are recognized as taxpayers and payers of fees. In the manner prescribed by the Tax Code of the Russian Federation, branches and other separate subdivisions of Russian organizations perform the duties of these organizations to pay taxes and fees at the location of such branches and other separate subdivisions.

This means that, although separate subdivisions of Russian organizations may fulfill the duties of these organizations to pay income taxes at the location of these separate subdivisions, taxpayers are not the separate subdivisions of the organization, but the organization itself.

Thus, in the case when at the location of a separate subdivision of an organization the tax is paid not by the organization, but by the separate subdivision itself, this organization still acts as a taxpayer. Therefore, the organization itself is responsible for the late payment of tax by a separate division of the organization - it is to it that penalties are charged.

The terms and procedure for the payment of income tax and tax in the form of advance payments are established by Art. 287 of the Tax Code of the Russian Federation. Calculations of the taxpayer with the budget since July 1, 2005 are carried out in accordance with the Recommendations on the procedure for maintaining a database in tax authorities "Payments from the budgethot "(approved by Order of the Federal Tax Service of Russia dated 12.05.2005 No. ШС-3-10 / 201). Previously, these calculations were carried out in accordance with the Recommendations on the procedure for maintaining personal account cards of taxpayers, payers of fees and tax agents in tax authorities (approved by Order of the Ministry of Taxes and Levies of Russia dated 05.06.2002 No. BG-3-10 / 411).

Consequently, before January 1, 2005, if the organization and its separate subdivision are located in the territories of various municipalities, late payment of tax at the location of the separate subdivision to the budget of the municipal formation means untimely payment of tax to this budget, since, according to the above recommendations, to pay at the location organization, the corresponding amount of tax to the budget of the municipality, on the territory of which the separate subdivision of the organization is located, is not possible.

On the contrary, from January 1, 2005, the specified amount of tax can be paid at the location of the organization, since from that date profit tax is not credited to the budgets of municipalities.

In connection with the foregoing, if the organization paid income tax to the budget of the constituent entity of the Russian Federation at the place of its location, taking into account the amounts attributable to separate subdivisions located on the territory of the specified subject, made timely, then the tax amounts that were not received at the location of these subdivisions , the penalty is not charged if the following condition is met: the organization submits to the tax authorities at the location of the specified separate divisions documents confirming the fact of payment of income tax in full at the place of its location, confirmed by the tax authority at the location of the organization.

Please note that if this condition is not met, a penalty on the above tax amounts should be charged by the tax authority at the location of the separate divisions of the organization.

Thus, even after January 1, 2005, the concept "Separate subdivision of the organization" widely used for tax purposes of corporate profits. This applies both to the procedure for calculating and paying tax, and the procedure for submitting a declaration. This concept is used even in cases of application of penalties (Art. 119 of the Tax Code of the Russian Federation) and financial (Art. 75 of the Tax Code of the Russian Federation) sanctions. In this regard, the correctness of assigning a structural unit of an organization to its separate subdivisions is of great importance when applying the provisions of Chapter 25 of the Tax Code of the Russian Federation.

The general conclusion is that each subdivision of an organization, attributed to its separate subdivisions in accordance with the Civil Code of the Russian Federation, is recognized as a separate subdivision and in accordance with the Tax Code of the Russian Federation. At the same time, since the concept of a separate subdivision in the Tax Code of the Russian Federation is broader than in the Civil Code, not every separate subdivision that is accounted for for tax purposes can be recognized as a separate subdivision from the point of view of civil law. Moreover, for the purpose of taxation of profits, not only existing, but also detached divisions liquidated during the tax period are taken into account.

In this regard, in order to simplify the procedure for calculating the share of profit attributable to each separate subdivision (and to an organization without its subdivisions), it seems appropriate not to take into account these liquidated subdivisions. Moreover. The need to account for separate divisions of an organization liquidated during the tax period does not directly follow from the Tax Code of the Russian Federation (in particular, from the provisions of clause 2 of Article 288 of the Tax Code of the Russian Federation). The concept of “liquidated separate division of an organization” is not used at all in the Tax Code of the Russian Federation.

From clause 2 of Art. 288 of the Tax Code of the Russian Federation, it can be concluded that the profit of the organization is distributed only between the organization itself without its separate subdivisions and each existing (and not liquidated) separate subdivision. Thus, it can be recognized that accounting for liquidated units for profit tax purposes is unreasonable. At least we can talk about the ambiguity of the provisions of this paragraph.

Obviously, in this case, the taxpayer can dispute the need to maintain such records of liquidated units, guided by the provisions of clause 7 of Art. 3 of the Tax Code of the Russian Federation, according to which all irrevocable doubts, contradictions and ambiguities in acts of legislation on taxes and fees are interpreted in favor of the taxpayer (payer of fees). At the same time, it is indisputable that currently the tax authorities of the provisions of paragraph 2 of Art. 288 of the Tax Code of the Russian Federation are not interpreted in favor of the payer of corporate income tax, since it is easier for the taxpayer to take into account only existing separate divisions.

1 Ozhegov S. I. and Shvedova N. Yu. Explanatory Dictionary of the Russian Language: 72,500 words and 7,500 phraseological expressions (Russian Academy of Sciences. Institute of the Russian Language: Russian Cultural Foundation). - M .: Az, 1993.960 s).