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

The purpose of creating structural units is to expand the business, increase sales volumes, open retail outlets or stores, attract consumers, and ultimately make a profit. Often, depending on the tasks that the founder or director of an enterprise sets for himself, he opens various types of OP in different regions of the country or within one locality.

Initially, the company's management needs to figure out what each of the OPs is, what powers it can be vested with, how to register it and pay taxes in the future? If a company, for example, needs to place only one employee remotely from the main office, which type of unit should this structural unit be classified as? According to the Tax Code, Art. 11 for tax purposes, the legislator recognizes as an EP any unit equipped with stationary workplaces that can function for more than a month.

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

The conclusion of other contracts, for example, for the performance of work or provision of services, is not permitted. Second hallmark OP is its territorial distance from the location of the main office, i.e. it must be located at a different address. A division is recognized as separate, regardless of whether information about it is displayed in the company’s charter or in other internal documents.

Review of concepts and types

At the legal persons may open one or more OPs equipped with workplaces.

In turn, they are divided into:

• branches;
• representative offices;
• simple (ordinary) OP.

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

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

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

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

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

A regular (simple) OP may not maintain a separate balance sheet, but branches or representative offices can. Therefore, the property that will be separated by the enterprise to a structural unit to perform its duties is accounted for differently, at the main one or at its OP.

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

To create a remote working complex called “simple OP” you need:

• the head of the enterprise to issue an Order on its creation;
• make changes to the Regulations or Labor Regulations of the main enterprise, i.e. to local documents.

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

It is enough to indicate the address of the OP in internal regulatory documents and make other changes. The decision to open a branch or representative office is made by voting of the participants or founders with the obligatory entry into the constituent documents. A separate person is appointed for management. Other issues are resolved in individually in each individual case.

Specifics and features

Any of these structural units is a branch (representative office), a simple OP must:

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

In addition to the main features, various OPs also have distinctive ones, which are associated not only with the performance of functions and responsibilities, requirements for opening, but also with registration. For example, when opening a separately equipped complex of workplaces, an enterprise needs to register it with the tax office, but not with extra-budgetary funds, and also should not enter information about its creation in.

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

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

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

The main document on the basis of which any of the OPs must work is the Regulations or Rules on the procedure of work. At the same time, a copy of the charter must be transferred to the tax office at the location of the branch (representative office); this does not need to be done in relation to a simple OP.

The main differences between a branch and a separate division

Despite the many differences between various types OP, them common feature is dependence on the main company. She owns not only the property and funds in her accounts, but also the goals and objectives that she sets for her structural unit. Main differences: documenting opening, carrying out business transactions, maintaining records and generating reports.

The table can clearly show this:

Other clarifications

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

Registration and registration

It is necessary to register with the territorial branch of the Tax Service at the location of any OP. If the OP is on a dedicated balance sheet, then he will need to submit reports in the future.

A notification about opening a simple OP must be submitted to the tax office within a month. Documents on the branch (representative office) are submitted immediately after the authorized body makes a decision to open and records it in.

To the territorial office where the main enterprise is registered for tax purposes, you must submit an application for the creation of a branch (representative office), as well as certified copies of:

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

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

All necessary information information about the new structure will be sent by the tax office to the territorial branch of the Tax Service at the location where the branch (representative office) is located, where it will be registered. If the OP will continue to maintain a separate balance sheet, then you will have to submit reports and pay taxes at the place where the branch (representative office) is located. Also, the new structural unit is assigned separate Goskomstat codes.

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

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

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

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

• information about registration with the Tax Service;
• notification of registration of the main enterprise in the Pension Fund;
• confirmation from the bank about an open current account;
• application for registration;
• others on request.

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

• state registration of the main enterprise in the tax and Social Insurance Fund;
• registration with the National Tax Service;
• the decision of the meeting of founders to open an OP;
• availability of a current account.

Comparative characteristics

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

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

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

For example, the difference between a branch and a separate division is that the former can file a lawsuit on behalf of the enterprise, but it must be accompanied by a power of attorney for the manager, confirming his authority. An ordinary OP cannot do even this, and he does not have a manager at all. Any of the OP cannot be brought to tax liability separately from the main enterprise, despite its actions contrary to the law.

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

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

Important Factors

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

The OP receives all funds and property for organizing its activities from the main enterprise. If the branch does not have a dedicated balance sheet, then accounting is not maintained, which means it is simply transferred to the main office, where it is processed. All financial assets that the branch produces will be accounted for by the main enterprise, but on separate balance sheet accounts.

When a branch has a current account and it keeps accounting records separately, forms a balance sheet, which means it independently processes source documents, calculates wages, taxes, contributions, submits reports, etc. It is important for business managers to remember, despite the fact that the opening of a remote complex of workplaces presupposes the start of its activities after a while, it is necessary to notify the Tax Service at its location a month after the opening.

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

What is better to choose

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

A simple OP is also easier to register with the tax office, because there is no need to enter information into the Unified State Register of Legal Entities, and therefore only a notification is sent about its opening. In a regular OP there is no requirement to do accounting, which means hiring an accountant. In this regard, the workplace complex has a significant advantage.

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

A newly created LLC quite often does not have its own or rented office and is listed only at its legal address. This may be the home address of the manager (founder) or an address with postal and secretarial services. While no real activity is being carried out yet, and correspondence intended for the LLC, especially from official bodies, arrives in a timely manner, this situation is normal. But, sooner or later, the LLC begins to work, which means it must “materialize” somewhere in space.

You can get answers to any questions about registering LLCs and individual entrepreneurs using the service free consultation on business registration:

Sometimes the nature of the activity allows you to conduct business from home or with the help of remote workers, but if an LLC opens a store, warehouse, office, production room or otherwise begins to conduct business at an address other than legal address, That it is necessary to create and register a separate division.

There is important condition- the criterion for creating a separate division is the presence of at least one stationary workplace, and it is recognized as such if it was created for a period of more than one month. The concept of a workplace is in Labor Code(Article 209), from which we can conclude that:

• must be concluded with the employee employment contract;
• workplace is under the control of the employer;
• the employee is constantly in this place in accordance with his job duties.

Based on this, a storage warehouse that does not have permanent employee, will not be considered a separate division. Vending machines, payment terminals, ATMs, etc. are not considered as such. Remote (remote) workers also do not fall under the concept of a “stationary workplace”, therefore concluding employment contracts with them does not require the creation of a separate unit.

Please note that individual entrepreneurs should not create and register separate divisions. Individual entrepreneurs can operate throughout the Russian Federation, regardless of the place of state registration. If they work under the UTII regime or have purchased a patent, they only have to additionally register for taxation at the place of business.

What should a separate division be like for an organization to have the right to the simplified tax system?

Article 346.12 of the Tax Code of the Russian Federation prohibits the use of a preferential simplified taxation system for organizations that have branches (the requirement for the absence of a representative office has already been abolished). Of course, the question arises - how to register a separate division so that it is not recognized as a branch, and the organization retains the right to? To understand this, you will have to refer to the provisions of three codes: Tax, Civil and Labor:

1. The Tax Code (Article 11) gives the concept separate division of the organization as “... any unit territorially isolated from it, at the location of which stationary workplaces are equipped.” However, the Tax Code of the Russian Federation does not provide a description of the types of separate divisions.
2. The Civil Code (Article 55) characterizes a separate division only in the form representative offices and branches. That is, from these provisions it is also unclear what other separate divisions, besides a representative office and a branch, can be.
3. The Labor Code (Article 40) indicates that “...a collective agreement can be concluded in the organization as a whole, in its branches, representative offices and other isolated structural divisions " Thus, only here can one see that separate divisions can be something other than a branch and representative office.

As a result, we are dealing with some elusive concept of another separate division, therefore, when creating such a division, we must simply avoid the criteria that characterize it as a branch or representative office. These characteristics in the law are more than meager:

• a representative office is a separate division legal entity located outside its location, which represents the interests of the legal entity and protects them;
• a branch is a separate division of a legal entity located outside its location and performing all or part of its functions, including the functions of representative offices;
• representative offices and branches are not legal entities, and information about them must be indicated in the Unified State Register of Legal Entities, and therefore in the organization’s charter.

It is no coincidence that we understand this issue in such detail, because non-compliance with these requirements (sometimes implicit) can deprive an organization of the opportunity to work on the simplified tax system, and unexpectedly. For example, the manager believes that the created separate division is not a branch, so the organization continues to work on a simplified system, although it no longer has the right to do so.

In such cases, the organization will be recognized as operating from the beginning of the quarter in which a separate division with the characteristics of a branch was created. And the loss of the right leads to the need to charge all general taxes: income tax, property tax, VAT, and it is with the latter that the most problems can arise. VAT must be charged on the cost of all goods, works and services sold for the current quarter, and if the buyer or customer refuses to pay it additionally, then the tax will have to be paid at their own expense.

Signs of a branch and representative office

Considering what unpleasant consequences recognition of a separate division as a branch can lead to for the simplified tax system payer, you need to know what its signs may be:

1. The fact of the creation and commencement of activities of a branch or representative office is reflected in the charter of the LLC (since 2016 this is not necessary).
2. The parent organization approved the regulations on the branch or representative office.
3. A head of a separate division has been appointed, who acts by proxy.
4. Internal regulations regulating the activities of a separate unit, as a branch or representative office.
5. A branch or representative office represents the interests of the parent organization before third parties and protects its interests, for example, in court.

Thus, in order to retain the right to the simplified tax system, it is necessary to ensure that the created separate division does not have the indicated characteristics of a branch. In addition, it is necessary to indicate in the Regulations on a separate division that it does not have the status of a branch or representative office and does not conduct the business activities of the organization in full (for example, a store is engaged only in the storage, sale and delivery of goods). The creation of a separate division is within the competence of the head of the LLC; it is not necessary to include information about this in the charter.

We inform the tax office about the opening of a separate division

According to Article 83(1) of the Tax Code of the Russian Federation, organizations must register for tax purposes at the location of each of their separate divisions. An additional requirement to report to the tax inspectorate about all separate divisions (within a month) and changes in information about them (within three days) is established by Article 23(3) of the Tax Code of the Russian Federation.

Thus, when creating a separate division (that is not a branch or representative office), the LLC must:

• report this to your tax office, approved by order of the Federal Tax Service of Russia dated 06/09/2011 No. ММВ-7-6/362@;
• register for taxation at the location of this unit, if it was created in a territory under the jurisdiction of a tax office other than the one in which the head office is registered.

Tax office at the place of registration of the head office, to which message No. S-09-3-1 was submitted, itself reports this fact to the Federal Tax Service at the location of the created separate unit(Article 83(4) of the Tax Code of the Russian Federation), that is, the LLC is not required to register on its own.

If several separate divisions are located in the same municipality, but in territories under the jurisdiction of different tax inspectorates, registration can be carried out at the location of one of the separate divisions, at the choice of the organization. For example, if in one city an LLC has several stores open in the territories of different Federal Tax Service, you do not need to register with each of them, you can select one inspection, indicating this choice in the message.

If the address of a separate subdivision changes, it does not need to be closed and re-opened (this obligation existed until September 2010), but only to submit a message to the tax office at the place of registration of the subdivision indicating the new address.

Registration with funds

Previously, registration with the Pension Fund when opening a separate division was carried out on the basis of an application from the LLC; now this data is automatically transmitted by the tax office. However, the obligation to independently register with the Social Insurance Fund remains.

To register with the FSS, notarized copies are submitted:

• tax registration certificates;
• certificate of state registration of a legal entity or Unified State Register of Legal Entities;
• notice of registration as an insurer of the parent organization, issued by the regional branch of the Social Insurance Fund;
• service newsletter state statistics(Rosstat);
• notifications about tax registration of a separate division;
• opening order, Regulations on a separate division, documents confirming that the separate division has a separate balance sheet and current account;
• original .

Pay a single simplified tax and insurance premiums for employees employed in a separate division, it is necessary at the place of registration of the parent organization, and personal income tax from these employees must be withheld at the location of the separate division.

Responsibility for violation of the procedure for registering a separate subdivision

Violation of the deadlines for submitting messages and applications for registration of a separate division entails the following fines:

• violation of the deadline for filing an application for registration - 10 thousand rubles (Article 116 of the Tax Code of the Russian Federation);
• Conducting activities as a separate division without registration - a fine of 10 percent of the income received as a result of such activities, but not less than 40 thousand rubles (Article 116 of the Tax Code of the Russian Federation);
• violation of the deadline for registration with the Social Insurance Fund - 5 thousand rubles or 10 thousand rubles if the violation lasts more than 90 calendar days (Article 19 No. 125-FZ of July 24, 1998).

Action plan for creating a separate unit

1. Determine that the organization is creating a separate division that is not a branch or representative office (since they have a different registration procedure).
2. Make sure that the created workplace is stationary, that is, created for a period of more than a month, the employee is present at it constantly, and this is related to the performance of his official duties. If the employee is remote, there is no need to create a separate unit.
3. Within a month after creating a permanent workplace, inform the tax office where the LLC is registered about the creation of a separate division using form No. S-09-3-1.
4. Register with the social insurance fund within 30 days.
5. If necessary, report a change in the address or name of a separate division to the Federal Tax Service at the place of registration of the division within three days using Form No. S-09-3-1.

Separate division- This part of a large organization, whose main task is to represent the legitimate interests of the company in its territory. Located far from the main office of the company (for example, in another city).

Accountability and subordination are fully implemented management of the central representative office of the organization, with no exceptions. Work without control from the head office is not allowed, since responsibility for actions (or inactions) lies with the central representative 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 company's main office– first and main distinguishing feature. The concept of remoteness includes a location more than a kilometer from the head office. Most often, such representative offices are located in other cities or regions of the region.
2. Availability of official jobs– in order for a separate division to be considered created (open), it is necessary to have official jobs. The workplace is understood as a room (place) in which to carry out production functions the employee needs to be located. Conclude an employment contract with the employee.
3. Registration with the Federal Tax Service, in all regions in which separate divisions are located.
4. Registration with the Pension Fund of the Russian Federation, in all regions.
5. There is no need to enter data about the created (or planned) regional division into the company’s constituent documents (charter, internal regulations, orders).

From what moment is it considered created?

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

According to the Labor Code of the Russian Federation, in order to recognize the fact of the creation of a company, it is necessary to have jobs created in it. The work contract concluded between the employer and the employee must be for a 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 provider of services.

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

Varieties and forms

Separate divisions 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.

Authority is the right to perform or not perform an action that should ultimately bring benefit.

Independent– type of representative office whose management structure includes a director. “Independence” means that a number of decisions at the regional level are made by the director without obtaining additional permissions from the head office (solely).

Not independent (or less independent)— a representative office whose regional management staff does not include the position of director. It resolves issues arising in the course of economic activities on the territory of the subject by directly reporting them to the main office. In response to this, he receives a representative specific action plan, which must be performed to get out of the situation.

A branch is a structure that is geographically remote from the central office and has a number of strict requirements when creating. In terms of functionality, it carries out the same activities as the main office, with the only difference being a different location.

Unlike a regional office, the process of creating a branch is much stricter, and there are more requirements for creation.

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

The issue of jobs

Many people are employed in the work of the unit; accordingly, 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– boss, employee – in each department there is a need to test and hire additional personnel, for this a personnel department is needed.
2. Accounting department – Chief Accountant, accountant - it is not necessary to organize a department, since in some cases the entire financial activities passes through the head office, as a result of which having an on-site accounting department does not make sense.
3. Client department– managers – is the main one, the task is to serve the organization’s clients and provide services. Is the most numerous.
4. Legal department– lawyer, lawyer – is often found, since, 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 at the legal address of the organization. If a claim is filed in court, it is considered at the location of the plaintiff (in the region where the organization’s separate office is located). To protect rights, it is necessary to have a full-time legal department on site.

In what cases does it open?

The question of opening arises if it is necessary 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 in the case when the formation of a branch is inappropriate from the point of view of the organization’s management.

Example: RemTorg LLC repairs refrigerators and appliances running on liquid coolant. The central office is located at the address: Russian Federation, Moscow, Volgogradsky Prospekt, building 1, office 111. The address is legal. The company needs to repair a refrigerator in the city of Volgograd.

A suitable repairman was found from Moscow via the Internet, and a contract for the provision of repair services was concluded with him. After the service was provided, the organization liked the work of the master, they extended the contract with him for six months. The employee’s assistance was not needed for more than that period, so when the contract expired, he did not receive an extension.

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

Is the tax office 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 at a distance from the head office. A workplace is created for a period of more than a calendar month. In the case under consideration, 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 contains the answer to the question of when a separate division does not arise.

Responsibility measures

Talking about responsibility and legal status, a separate division is not in the same place as the main organization. This is, first of all, an “auxiliary” department, which is charged with representing the interests of the organization, but in no way creating its own interests and promoting them.

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

In the event of controversial situations, all correspondence and other law enforcement acts must be communicated exclusively to the “top” management of the organization. Notification occurs by sending a letter not to the actual address, but to the legal address indicated in the documents of the representative office.

A separate division does not bear liability, including property liability, except in cases where the property located in it belongs to the LLC. As a result of bankruptcy, it may be confiscated and subsequently sold.

All actions take place exclusively by proxy or on direct instructions from the main office, since the position of a manager (director) is sometimes not even created as unnecessary.

Taxes and reporting

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

It is allowed to operate separate departments without employing accountants and maintaining accounting documentation. In this case, all financial and other transactions must be carried out through the main office, which, at the end of the tax period, is obliged to pay tax on its transactions 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 manage 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 or a separate division pays taxes, it is mandatory to register tax accounting in the region in which it is actually located.

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

"New Accounting", 2005, N 5

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

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

Conditions for creating separate divisions of the organization

According to Art. 11 of the Tax Code of the Russian Federation, a separate division of an organization is understood as any territorially separate division from it, at the location of which stationary workplaces are equipped. A separate division of an organization is recognized as such, regardless of whether its creation is reflected or not reflected in the constituent or other organizational and administrative documents of the organization, and regardless of the powers vested in it.

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

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

Let's take a closer look at these signs.

Territorial isolation

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

According to the Russian Ministry of Finance, set out in Letter No. 03-03-01-04/1/184 dated December 22, 2004, a territorially separate division of an organization should be considered a division located on a separate territory, different from the territory on which the organization itself is located, i.e. e. at a different address not indicated in the constituent documents as the location of the taxpayer himself. A similar opinion is expressed by representatives of tax authorities.

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

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

Equipped stationary workstations

The main feature characterizing a separate division of an organization is the presence of equipped stationary workplaces in it.

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

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

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

The judicial authorities believe that the equipment of a stationary workplace means the creation of conditions for the performance of labor duties, as well as the very performance of such duties by employees (see Resolutions of the Federal Antimonopoly Service of the North-Western District dated October 7, 2002 N A26-3503/02-02-07/160 , Ural District dated 01/09/2003 N F09-2799/02-AK).

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

Previously, the judiciary expressed the opinion that if there is one workplace, a separate division is not formed (see, for example, Resolution of the Federal Antimonopoly Service of the Moscow District dated October 3, 2001 N KA-A40/5441-01).

However, later the position of arbitration courts on this issue changed. For example, the Resolution of the Federal Antimonopoly Service of the Moscow District dated January 23, 2003 N KA-A41/9052-02 states that registration of a separate division is mandatory even if one workplace has been created in it. This position was also taken by the FAS of the Central District (see Resolution of July 26, 2004 N A62-1493/04). The Federal Antimonopoly Service of the North-Western District also proceeded from the fact that the creation of one workplace is the basis for registering a separate division (see Resolution of May 27, 2002 N A26-6342/01-02-12/178).

The same point of view is set out in the Letter of the Ministry of Taxes and Taxes of Russia dated April 29, 2004 N 09-3-02/1912 “On the recognition of one workplace as a separate unit.”

According to the Ministry of Taxes and Taxes of Russia, such a criterion for a separate unit as the equipment of stationary workplaces, specified in Art. 11 of the Tax Code of the Russian Federation, also incorporated the concept of one equipped stationary workplace. In addition, the ministry believes, since Art. 11 of the Tax Code of the Russian Federation, the concept of “workplace” is also used in singular, this would be semantically incorrect if the legislator did not consider a unit consisting of one workplace to be a separate division of the organization.

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

Registration of a separate division of the organization

Within one month after the creation of a separate division, the organization is obliged to inform the tax authority at its location about its creation, and also register at the location of the corresponding separate division (Article 23, clauses 1, 4 of Article 83 of the Tax Code of the Russian Federation ).

Date of creation of a separate division

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

According to the tax authorities, the date of creation of a separate division should be determined by the earliest document in date that recorded the presence of all the signs of a separate division established by Art. 11 of the Tax Code of the Russian Federation (see article “On registering an organization for tax purposes at the location of separate divisions”, magazine “Tax Bulletin”, 2004, No. 9).

Thus, the date of creation of a separate division will be considered the date of the decision general meeting shareholders about opening a branch in another city.

Some judicial authorities express the point of view according to which the date of creation of a separate division in the form of a branch is the date of amendments to the constituent documents of the organization (see Resolution of the Federal Antimonopoly Service of the Central District dated August 19, 2004 N A35-7602/03-C4).

However, in most cases, the position of the judicial authorities is that the moment of creation of a separate unit should be considered the moment of equipping the organization with a territorially separate stationary place for carrying out activities through its own separate unit (see Resolutions of the Federal Antimonopoly Service of the Far Eastern District dated January 14, 2005 N F03-A04/04- 2/3923, Moscow District dated 09.09.2004 N KA-A40/7836-04, Volga-Vyatka District dated 08.19.2004 N A29-8668/2003a, West Siberian District dated 05.28.2003 N F04/2319-394/A70 -2003).

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

Documents submitted upon registration

The recommended form of communication about the creation of a separate unit located on the territory of the Russian Federation is approved by Order of the Ministry of Taxes and Taxes of Russia dated 02.04.2004 N SAE-3-09/255@ "On approval of recommended forms of messages used when recording information about legal and individuals Oh".

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

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

The deadline for filing an application is 1 month from the moment of creation of a separate division (clause 4 of article 83 of the Tax Code of the Russian Federation).

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

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

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

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

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

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

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

Responsibility for failure to submit a notification about the creation of a unit and violation of registration deadlines

For failure to submit a notification about the creation of a separate unit within the time limit established by Art. 23 of the Tax Code of the Russian Federation, an organization can be held liable in the form of a fine of 50 rubles. on the basis of Art. 126 of the Tax Code of the Russian Federation.

At the same time, the official of the organization responsible for submitting to the established Art. 23 of the Tax Code of the Russian Federation, the deadline for reporting the creation of a separate unit may be subject to an administrative fine on the basis of Art. 15.6 of the Code of Administrative Offenses of the Russian Federation in the amount of 3 to 5 times the minimum wage.

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

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

Registration of a separate division with extra-budgetary funds

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

The relevant provisions are contained in Federal law dated December 23, 2003 N 185-FZ "On introducing amendments to the legislative acts of the Russian Federation in terms of improving the procedures for state registration and registration of legal entities and individual entrepreneurs"and in the regulatory legal acts of these extra-budgetary funds adopted in accordance with it.

To register with the Pension Fund of the Russian Federation, an organization must contact its corresponding territorial body. No written applications are required. The territorial authority makes a request to the tax authority with which the organization registered its separate division, and, having received the information, registers the organization no later than five days.

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

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

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

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

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

To register with the territorial branch of the Compulsory Health Insurance Fund of the Russian Federation, the organization also submits an application. The deadline for its submission is no later than 30 days from the date of creation of a separate unit (Article 9.1 of the Law of the Russian Federation of June 28, 1991 N 1499-1 “On medical insurance of citizens in the Russian Federation”).

The procedure for registering insurer organizations in the territorial compulsory health insurance fund and the form of the policyholder registration certificate are established by the Government of the Russian Federation. To date, such a procedure has not been established.

Liquidation of a separate division of an organization

When liquidating a separate division, the organization is obliged to inform the tax authority at its location about this (clause 2 of Article 23 of the Tax Code of the Russian Federation). The form of the message is not established, so it is submitted in any form.

At the location of the separate division, the organization must submit an application to deregister it (clause 5 of Article 84 of the Tax Code of the Russian Federation). The application form for deregistration of an organization with the tax authority at the location of its separate division and the procedure for filling it out are approved by Order of the Ministry of Taxes of Russia dated March 3, 2004 N BG-3-09/178. The application for deregistration is submitted in one copy.

The deregistration of a separate division is carried out by the tax authority within 14 days from the date the organization submits the application.

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

S. Rogotskaya

AKDI "Economics and Life"

When developing new market niches, companies often have to ensure their presence in “foreign” territories. Since separate divisions in many cases affect the calculation and payment of taxes, accountants often have a question: what, exactly, is considered a separate division? The characteristics of separate divisions, as well as who, when and how to notify about their creation, are described in this article.

A separate division in the legislation of the Russian Federation. The code is different from the code

The tax that is transferred to budgets of the constituent entities of the Russian Federation. Payment of advance payments of income tax is made both at the location of the organization and at the location of each of its separate divisions based on the share of profit that falls on these separate divisions. The procedure for distributing profits (determining the share) is specified in clause 2 of Art. 288 Tax Code of the Russian Federation.

An income tax return must be submitted for each separate division. If divisions are located in the same region, the organization can submit declarations only to one of them. To exercise this right, it is necessary to notify all tax inspectorates where separate divisions are registered. This must be done before the start of the new tax period.

Personal income tax and separate divisions

Tax agent organizations are required to transfer personal income tax to the budget both at their location and at the location of each of their separate divisions (). Personal income tax for a separate division is determined based on the amount of taxable income that is accrued and paid to the employees of this division.

If a separate division is not allocated to a separate balance sheet, the parent organization at the place of registration of the division must transfer personal income tax to the budget (letter of the Ministry of Finance of the Russian Federation dated March 29, 2010 No. 03-04-06/54).

Personal income tax reporting for employees of a separate division must be submitted at its location (letters of the Ministry of Finance of the Russian Federation dated 08/07/2012 No. 03-04-06/3-222, dated 12/16/2011 No. 03-04-06/3-348). Information on accrued and withheld amounts must be submitted no later than April 1 ().

Insurance contributions to the Pension Fund and the Social Insurance Fund of the Russian Federation

Separate divisions independently pay insurance premiums and submit calculations for insurance premiums to the Social Insurance Fund and the Pension Fund of the Russian Federation, if the following conditions are simultaneously met:

• divisions are located on the territory of the Russian Federation; divisions have a separate balance sheet;
• departments have their own current account; divisions accrue payments and other remuneration in favor of individuals.

If at least one condition is not met, the obligation to pay contributions and submit reports passes to the parent organization (letter from the Federal Social Insurance Fund of the Russian Federation dated 05.05.2010 No. 02-03-09/08-894p, Ministry of Health and Social Development of Russia dated 03.09.2010 No. 492-19).

It is also necessary to register a separate division in the funds only if the four listed conditions are met (clause 12 of the Resolution of the Board of the Pension Fund of the Russian Federation dated October 13, 2008 No. 296P, clause 1 of the Resolution of the Federal Social Insurance Fund of the Russian Federation dated March 23, 2004 No. 27).

Property tax of separate subdivisions

The procedure for paying property tax by separate divisions is established in. Separate divisions account for movable property and pay the appropriate tax if they have a separate balance sheet.

If the division is not allocated to an independent balance sheet, the tax on movable property is paid by the parent organization (letter of the Ministry of Finance of the Russian Federation dated January 20, 2012 No. 03-01-11/1-19).

The tax base for real estate is determined by the place of its actual location (). Accordingly, a separate division must pay property tax if the property is located on its territory (regardless of the separate balance sheet).

The property tax declaration and calculations for advance payments are submitted to the Federal Tax Service at the place of payment of the tax ().

Transport tax of a separate subdivision

Paid at the location of the vehicles (clause 1), which is determined in accordance with clauses. 2 p. 5
Do you have an OP? When is it considered created? We will answer these questions in our article.