Separate workplace tax code. Separate subdivisions of LLC: when they need to be registered

Materials for the video seminar

Many, in an effort to expand their business and increase sales, open new stores and branches of firms. A firm offering services or work through offices in different areas is also not uncommon. Often, in connection with the expansion of the business, the founders of a legal entity make a decision to create one or more separate divisions.

The presence of a geographically remote subdivision in an organization raises a number of questions:

- Is it a branch, representative office or other separate subdivision?

- What is the difference between one type of separate subdivision from another?

- What organizational and tax actions are associated with the opening of different types of separate divisions?

- How and where to pay taxes and submit reports?

- Is one remote workstation considered a separate subdivision?

To begin with, let's consider the concept and signs of a separate division, which will help to distinguish branches and representative offices from other separate divisions:

In accordance with Article 11 of the Tax Code of the Russian Federation, a separate subdivision of an organization for tax accounting purposes is any subdivision geographically separate from it, at the location of which stationary workplaces are equipped. 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.

The first distinguishing condition for the recognition of a separate subdivision for tax purposes is territorial isolation from the organization that created it. The indicated sign means that it should be located on a different territory from the location of the organization.

The second condition for the recognition of a separate division of an organization as such is the availability of equipped stationary workstations at its location. In this case, a workplace is considered stationary if it is created for a period of more than one month (in accordance with the provisions of Article 6.1 of the Tax Code of the Russian Federation, a month is understood as a calendar month). Since the concept of a workplace is not contained in the Tax Code of the Russian Federation, we turn to the Labor Code of the Russian Federation.

In accordance with article 209 of the Labor Code of the Russian Federation, a workplace is understood as a place where an employee must be located or where he must arrive in connection with his work and which is directly or indirectly under the control of the employer. Between an organization and an individual, both labor and civil law contracts can be concluded, which significantly affects the establishment of the fact of the availability of jobs. Since the concept of a workplace is an element of the system of labor relations (regulated by the Labor Code of the Russian Federation), it should be recognized that, in principle, jobs can arise only if an employment contract is concluded with an individual. The conclusion of any other contracts, including the performance of work or the provision of services, cannot lead to the formation of jobs and, therefore, to the formation of a separate division.

Considering that any subdivision on a separate territory with stationary jobs is isolated, it turns out that it begins to exist as soon as stationary jobs are ready. The creation of a separate division as a legal fact can be stated when the latter (that is, stationary jobs) are created at a different address than the address of the state registration (and, therefore, the location) of the organization.

A similar conclusion can be found in many decisions of arbitration courts. So, for example, in the decision of the Federal Arbitration Court of the West Siberian District of 15.10.2010 N A75-430 / 2010, it was concluded that in order to qualify the actions of an organization through a separate subdivision, it is necessary to establish the presence of the following circumstances: location of a separate subdivision.

Summarizing the above and based on the definition given in Article 11 of the Tax Code of the Russian Federation, taking into account the requirements of paragraph 4 of Article 83 of the Tax Code of the Russian Federation, the following essential features of a separate subdivision can be distinguished:

territorial isolation of the property belonging to the organization from the organization itself, regardless of the fact of the documentary registration of the creation of the corresponding subdivision;

availability of jobs created for more than one month;

organization of activities through the appropriate division.

Now it is necessary to give the concept of branches and representative offices, which is enshrined in civil law.

It follows from Article 55 of the Civil Code of the Russian Federation that a representative office is a separate subdivision of a legal entity located outside its location, which represents the interests of a legal entity and protects them.

A branch is a separate subdivision of a legal entity located outside its location and performing all or part of its functions, including the functions of a representative office.

Representative offices and a branch are not legal entities. They carry out their activities on behalf of the legal entity that created them, which is responsible for their activities. They are endowed with property by the legal entity that created them and act on the basis of the provisions approved by it. 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 above 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.

The heads of the branches and representative offices of the company are appointed by the body of the legal entity, authorized to do so in accordance with its constituent documents, and act on the basis of its power of attorney. The above requirement for subdivisions that are separate in accordance with the Tax Code of the Russian Federation is absent.

The need for a power of attorney is also indicated in paragraph 20 of the resolution of the Plenums of the RF Armed Forces and the RF Supreme Arbitration Court of July 1, 1996 N 6/8, which states that the corresponding powers of the head of a branch (representative office) must be certified by a power of attorney and cannot be based only on instructions contained in the constituent documents of the legal entity, the regulations on the branch (representative office), or be clear from the situation in which the head of the branch operates.

The difference between branches and representative offices from each other lies in the range of tasks they perform. 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 its constituent documents. The mission of the representative office is limited. They consist in the representation and protection of the interests of a legal entity, i.e. in the functions carried out within the framework of the institution of representation by virtue of powers based on a power of attorney.

Consequently, representative offices include separate subdivisions that act in the interests of the organization and protect them, and branches that perform all or part of its functions, including representative (, and "). Both those and other structural units must be indicated in the constituent documents.

When comparing the concept of a separate division of an organization, given in Article 11 of the Tax Code of the Russian Federation, and the concept of a branch, disclosed in Article 55 of the Civil Code of the Russian Federation, it is clear that the concept of a separate division of an organization is broader and includes any types of divisions of organizations, including including branches. Consequently, when deciding whether an organization has a branch (representative office), it is necessary to take into account as general signs established in

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 "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).

Thus, "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 revenue side 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 profits 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 "a 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 body 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 an understatement of the tax base, other incorrect calculation on the log 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 a formal statement only of the fact of violation of these obligations, without revealing other circumstances connected with it, including the presence or absence of the fault of the relevant subjects, 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 binding on 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 taxgakh 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 the specified 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, not separate subdivisions of an organization, but the organization itself are recognized as taxpayers.

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 the 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 said 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 advisable 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 an 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 challenge 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 of 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).

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.

A successful profitable business always wants to expand and grow by opening an additional structural unit for this. Or, for example, sometimes it is necessary to bring production facilities closer to the sources of raw materials, remove “dirty” industries from large cities, bring points of sale closer to the consumer, and reduce the costs of resource and property payments. One of the options for achieving these goals and solving the tasks facing the management is the opening of an additional office.

The decision to open a new structural unit adds work and questions both to the head (what legal status to give the structural unit, how to register, where, what documents are needed) and to the accountant (how to keep records, how to submit financial statements, what taxes to pay, what you can get for fines). The newly created structural unit can be endowed with the legal status of a branch, representative office or other separate unit (hereinafter OP). In our article, we will focus specifically on other OPs, for example, a retail outlet.

1. What is a separate subdivision

The concepts of "branch" and "representation" are given in Art. 55 of the Civil Code of the Russian Federation. The concept of a separate subdivision is specified in Article 11 of the Tax Code of the Russian Federation - "... any subdivision that is geographically separate from it, at the location of which stationary workplaces are equipped. other organizational and administrative documents of the organization, and from the powers vested in the said department. In this case, the workplace is considered stationary if it is created for a period of more than one month ... ".

A separate subdivision is characterized by two characteristics - territorial isolation and the presence of a stationary workplace created for more than a month.

2. A separate subdivision requires a power of attorney

A separate unit is created with the aim of performing the functions of an organization (all or part of them) or representing the interests of the organization and protecting them at their location. However, the OP is not an independent legal entity, and therefore, in order to enter into any legal relationship on behalf of the parent organization, it is necessary that all powers are spelled out not only in the constituent documents and provisions on other OP, but also in a properly executed power of attorney. For example:

• execution of transactions and other actions related to the current activities of the unit. However, you can set restrictions. For example, to provide the right to conclude contracts of only a certain type or contracts, the maximum price of which is limited, etc .;
• opening bank accounts, performing operations for the disposal of funds on these accounts;
• disposal of the property that the unit is endowed with, or certain types of property (for example, with the exception of real estate);
• conclusion and termination on behalf of the organization of labor contracts with persons employed in a separate subdivision;
• the right to first sign various documents drawn up in a separate subdivision: accounting, financial documents, invoices, reports, etc .;
• representing the interests of the organization in government bodies;
• the possibility of delegating certain powers to third parties, since the head of a department cannot always independently perform his functions for various reasons (for example, a business trip, illness, etc.).

Unlike branches and representative offices, the emergence of another separate subdivision is not accompanied by amendments to the constituent documents of the organization, except for documents that actually confirm the emergence of a stationary workplace (for example, a lease agreement and an order for hiring a person who will be there). Moreover, when creating a separate subdivision, it is not required to approve the Regulations on this separate subdivision, and you can also do without appointing the head of a separate subdivision, without issuing him a power of attorney (for example, you just hired several additional ordinary employees who will be located in a remote office). Nevertheless, in practice, as a rule, the order of the head of the legal entity is still issued (a general meeting of participants for this is definitely not necessary). The most expedient, in our opinion, is to issue an order to amend the staffing table and organizational structure of a legal entity (if any).

3. Differences between a branch and a separate subdivision

We have reflected the main differences in the table:

Important! The head of the organization should also keep in mind when opening a structural unit the fact that the presence of a branch or representative office imposes a prohibition on the right to use the simplified taxation system by the organization, which does not in any way apply to other EP.

4. The procedure for opening and closing separate subdivisions

As for the registration of a separate subdivision, it is much simpler than that of branches and representative offices (we have analyzed the registration of branches in the article "Registration of an LLC branch").

So, registration of a separate subdivision:

• simpler! Registration of the corresponding decision of the founder is not required;
• there is no need to enter information about a separate subdivision in the constituent documents and in the Unified State Register of Legal Entities.

It is enough just to register for tax purposes according to the rules of Art. 83 of the Tax Code of the Russian Federation.

The procedure for opening (registering) a separate subdivision

We remind you that we are talking about a structural unit separate from the main company.

4.1. We issue an order to open a division... The director of the Company issues a corresponding order on the opening of a subdivision (see the completed example below) and issues a power of attorney to the head of the EP.

Order No. ___
on the creation of a separate subdivision

Due to the development of the company and the need to expand its structure

I ORDER:
1. To create from 01.07.2018, without changing the staffing table, in the marketing and sales department a separate subdivision located at the address: 214000, Smolensk, st. Sovetskaya, 1, office U1 (hereinafter OP-LSU).

2. The created separate subdivision OP-LSU is not a legal entity, branch, representative office, does not have an independent balance sheet, does not have settlement and other accounts in the bank. Accounting, payment and submission of reports on taxes and fees is carried out by the parent organization - LLC "Example", centrally, at the place of its location.

3. The Company carries out the following functions for the management of the Separate Subdivision:

• determines the main directions of its activities, approves plans and reports on their implementation;
• carries out inspections of the financial and economic activities of the Separate Subdivision;
• appoints and dismisses the Manager on the grounds provided for by law;
• defines the structure of the Separate Subdivision;
• makes a decision to terminate the activities of the Separate Subdivision.

4. The management of the separate subdivision of OP-LSU is carried out by the Head, appointed by the Director of the Company. The head of the Separate Subdivision of OP-LSU acts on the basis of a power of attorney issued and signed by the director of the Company.

5. Head of the Separate Subdivision:

• has the right to conclude, on behalf of the Company, contracts for the sale of goods, works, services produced by the Company for an amount of up to 300,000 (three hundred thousand) rubles, while splitting contracts is not allowed;
• by power of attorney acts on behalf of the company within the powers determined by the power of attorney issued to him;
• carries out operational management of the activities of the Separate Subdivision in accordance with the plans approved by the Company;
• signs primary accounting documents and invoices drawn up by the LSU OP (the right of the first signature on the documents);
• signs and submits accounting, tax, statistical reporting, reporting to the off-budget funds of the LSU OP;
• represents the interests of the Company in the person of the Separate Subdivision in relations with state bodies, local self-government bodies, in extra-budgetary funds, in tax authorities, in Rosstat bodies, in banks, insurance companies, in all institutions and organizations regardless of ownership, citizens of the Russian Federation and for abroad in connection with the activities of the LS LSU;
• within the limits of existing powers, issues orders and instructions, gives instructions that are binding on all employees of the Separate Subdivision;

6. Responsibility. For obligations arising from the economic activities of a separate subdivision, the Company bears unlimited liability with all its property, acts as a plaintiff and defendant in court, arbitration (arbitration court). The claim work is carried out by the Company.

7. Make changes to the organizational structure, familiarize employees with this order in the part concerning them.

8. In its work, the created separate subdivision is guided by the Charter of Example LLC, this order and the instructions of the director of the company.

4.2. We notify the tax office about the opening of a subdivision.

A notification is filled in according to the form No. С-09-3-1, which is submitted to the Inspectorate of the Federal Tax Service at the location of the parent company. The IFTS at the location of the parent company forwards the information to the IFTS at the location of the OP. After receiving this message, the tax inspectorate at the location of the OP itself must register it within 5 (five) days. If you need to change the information about the OP (for example, changing the legal address), the company must submit a message to its "own" IFTS. If a company opens several separate subdivisions in one municipality, then a notification of the choice of an inspection to account for several separate subdivisions will also be added to the package of documents for registering an EP. It must be submitted to the inspectorate in which all OP will be registered within a month from the date of their creation.

The procedure for closing (liquidating) a separate subdivision

4.3 We issue an order on the liquidation of a separate unit(completed example below).

Order No. ___
on the liquidation of a separate subdivision

"___" ___________ 2018 _______________________

Due to non-fulfillment of planned indicators

I ORDER:
1. To liquidate from 01.11.2018 a separate subdivision located at the address: 214000, Smolensk, st. Sovetskaya, 1, office U1 (hereinafter OP-LSU).

2. To the head of the sales department Ivanov I.I. develop and approve the liquidation procedure for OP-LSU, organize the liquidation process: rent, utilities, transfer of debts, dismissal of employees, removal of property.
3. To the chief accountant of LLC "Example" Semenova S.S. conduct a complete inventory of OP-LSU, submit accounting and tax reports, make all settlements with employees, deregister a separate subdivision.
4. I assign control over the execution of the order to the head of the legal department Petrov P.P.

4.4. We inform employees about dismissal on staff reduction or in connection with the liquidation of the organization (Article 81 of the Labor Code of the Russian Federation). The second option is permissible only if the subdivision is located in an area different from the location of the parent organization and other branches of the company. Otherwise, the employer will have to draw up a layoff. Any employee can be dismissed due to liquidation - even a pregnant woman. When reducing staff, the employer agrees not only to provide the employee with guarantees of Art. 180 of the Labor Code of the Russian Federation, but also for compliance with the rules of Art. 179 of the Labor Code of the Russian Federation on the preferential stay at work.

4.5 We inform the Federal Tax Service Inspectorate of the liquidation of the unit. We submit a message in the form No. С-09-3-2 to the inspectorate at the location of the company's head office within 3 (three) business days from the date of termination of activities through another ordinary separate division. The company will be deregistered at the location of other separate divisions - within 10 (ten) business days from the moment the inspection receives a message about the termination of activities.

5. Accounting in a separate division

5.1. There are two ways to keep records in organizations with separate subdivisions - centralized and decentralized.

In the first method, the parent organization keeps records of all operations. To do this, each OP transfers to her all the primary documents, both received from counterparties and generated by its employees. Based on these documents, the accounting department of the parent organization reflects the data in the centralized accounting.

In the second method, the OPs keep their accounting records on their own. The parent organization reflects in its accounting only the financial and economic operations directly carried out by it. In this case, the financial statements as a whole for the legal entity are drawn up by summing up the indicators of the accounting registers of the parent organization and the OP.

5.2. The accounting procedure for business transactions depends on, are the OP allocated to a separate balance or not. In the first case, accounting is kept decentralized, in the second - centrally.

OP is not allocated to a separate balance

The rules of document flow (composition, transfer terms, responsible persons) between the parent organization and the OP are approved in the accounting policy. Within the terms established by the accounting policy, the OP transfers to the parent organization the primary accounting documents, on the basis of which accounting entries are made in the accounting of the parent organization. The transfer of primary documents is carried out according to a special independently developed and approved register. The financial statements for such an OP are not prepared separately.

OP allocated to a separate balance

The OP on a separate balance sheet maintains accounting independently, but the obligation remains to apply the accounting methods reflected in the accounting policy of the parent organization. A separate balance sheet of the EP is a list of indicators with the help of which its property and financial position is reflected for the preparation of the financial statements of the organization as a whole.

Note that the schedule of workflow between the parent organization and the OP allocated to a separate balance sheet, the working chart of accounts, as well as the forms of documents developed by the organization independently, are approved by the accounting policy.

The exchange of information between the parent organization and the OP takes place on the basis of the document "advice note". There is no unified form of advice note, the organization develops it independently and fixes it in the accounting policy. An advice note is drawn up for those cases when the parent organization does not participate in the operations carried out by the OP, and vice versa. Copies of primary documents confirming the operation are attached to each advice note. The financial statements of the organization as a whole should include the performance indicators of the EP (including those allocated to separate balance sheets).

5.3 Features of taxation in the OP

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It happens that a newly formed LLC does not have its own or rented office. In this case, he is listed only at the legal address. For example, at the address of the head or founder of the organization. As long as the activity has not yet begun, and the correspondence, including from the official instances, arrives on time, this is not a big deal. However, when the LLC begins to function, there is a need for the actual location.

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In some cases, the nature of the organization's work allows you to conduct business remotely, right from home, but when it comes to shops, warehouse and office premises, the activities of the enterprise begin to imply work at the address. This situation implies the need to open a separate subdivision.

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

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

Separate subdivision: implies the presence of at least one "stationary" workplace. A workplace means the conclusion of an employment contract with an employee for at least one month. The work should be controlled by the employer, and the employee himself is at his workplace, in accordance with his official duties. (Reason: Article 209 TC)

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

Hired workers with whom you collaborate remotely are also not considered “stationary”. Consequently, in order to conclude contracts with them, it is not at all necessary to deal with the registration of a separate division.

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

How to open a separate subdivision for an LLC, suitable for the simplified tax system

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

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

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

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

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

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

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

An organization can be classified as working according to the DOS from the moment of creation (beginning of the quarter) of a separate subdivision with the characteristic features of a branch or representative office. And according to the DOS, the organization will be charged with the obligation to charge all tax collections of the general regime.

Features of opening branches and representative offices of LLC

Taking all of the above into account, it is reasonable to know what are the characteristics of a branch and a dealership.

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

We conclude that in order to be eligible for the simplified tax system, you need to check that the created separate division does not have the above signs of a branch or representative office. Also, in the Regulations on separate divisions, it should be indicated that it is not a branch and representative office, and does not have similar signs, does not engage in economic activities on its own. The separate division is managed by the head of the LLC, and a director is not appointed.

Registration of separate divisions of an LLC with the tax office

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

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

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

In the event that several separate subdivisions are registered at once, located on the territory of one municipality, but in the territories under the jurisdiction of different tax inspectorates, it is possible to register all subdivisions on the territory of the tax inspectorate of one of them. For example, several tax services function in one city, and an organization in this city plans to open four stores located on the territory of different National Assembly, in this case, all four stores can be registered as separate divisions in one tax service.

If a separate subdivision changes its location address, it is necessary to inform about this with the indication of the new address in the NI (form No. С-09-3-1) at the place of registration of the subdivision.

Registration of separate divisions of LLC

It is necessary to register a separate subdivision in the funds at the location, if a separate balance will be kept in it, a current account will be opened and the accrual of payments to employees is planned. Registration must be completed within 30 days.

The following documents must be submitted to the Pension Fund:

• Tax registration certificate;
• Notification of the registration of an LLC on the territory of the Pension Fund of the Russian Federation;
• A package of documents confirming the opening of a separate division, as well as a current account and maintaining a balance.
• registration statement (original)

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

• Tax Registration Certificate;
• GRYUL certificate;
• An order to open a separate subdivision, documents confirming the existence of a current account and opening a balance;
• Letter from the state statistics Rosstat;
• Tax registration notification;
• The only original is the registration statement;

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

Responsibility for violations when opening a separate subdivision

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

• The deadline for filing a notification of tax registration has been violated - 10,000 rubles. (Article 116 of the NKRF);
• A separate division is functioning, but not registered - fines will amount to 10% of income, for the period of activity without registration, plus 40,000 rubles. (Article 116 of the NKRF);
• Violated the terms of registration in the Pension Fund - 5000 rubles. and 10,000 rubles. (if the registration delay lasts more than 90 calendar days); (Article 27 No. 167-ФЗ dated 15.12.2001);
• Similar fines are provided for violation of the terms of registration with the Social Insurance Fund 5000 rubles. and 10,000 rubles. respectively (Article 19 No. 125-ФЗ dated 07.24.98).

Procedure for opening a separate subdivision

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

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

The necessary documents, it is enough to simply collect, and the registration process itself takes place at the local tax service (at the place of registration of the head office).

The entire registration process can take as little as a week.